13. Zoning Ordinance Pertaining to procedures for issuance of Variances CITYOF
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1 CHANHASSEN
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"` 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317
I (612) 937-1900 • FAX (612) 937-5739
I MEMORANDUM E-
t,
TO: Planning Commission s y/V/'c -
IFROM: Paul Krauss ; Planning Director ._
DATE: March 14, 1990 "`
ISUBJ: Proposed Amendments to Chapter 20, Article II, Administration
and Enforcement of the City Code Pertaining to Variances
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While working on various development proposals, two aspects of
I the City' s variance procedure have come to staff' s attention as
areas where modifications could prove to be useful . These two
areas concern administrative procedures as to who is responsible
for reviewing and approving variances while the second is related
1 to the criteria that are used in reviewing variance proposals.
According to the current ordinance, all variances are to be
I reviewed by the Board of Adjustments and Appeals. In actual
practice over the past few years, while many variances have been
brought before the Board, a number of them have been approved
I directly by the City Council after consideration by the Planning
Commission.
The Board of Adjustments and Appeals serves an extremely useful
I function in the community. However, the procedures whereby all
variances are reviewed by the Board could potentially be con-
fusing and time consuming and represent an avoidable problem in
I the timely and effective review of development proposals. Many
communities divide up the responsibilities for approval of
variances. The Board of Adjustments and Appeals is generally
responsible for those variances which are associated with
I building single family homes or additions to those homes on
single family lots. In many of these communities, it is the
Planning Commission and ultimately the City Council that review
I all other variances which may be attached to subdivisions, con-
ditional use permits, site plans and in the near future interim
use permits. In our opinion there are several valid reasons for
I considering modifications to the variance procedures. A variance
which, for example, is associated with a subdivision may be con-
sidered by the Planning Commission and City Council to be valid
based upon a number of considerations. These may include
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Planning Commission
II March 14, 1990
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Itopographic features , surrounding development pattern, desire to
avoid other more significant variances, public input, environmen-
tal preservation efforts or similar matters. While the Planning
1 Commission and City Council are equipped to review the sub-
division in its entirety, the Board of Adjustments and Appeals
would typically be looking at that variance proposal in a manner
I that almost takes it out of context. This may result in the
variances receiving consideration subject to criteria that may be
different between the Planning Commission/City Council and the
I Board of Adjustments and Appeals. This factor could jeopardize a
project and put a developer or landowner in a difficult position.
The second related matter pertains to the mechanics of the proce-
dure itself. When a developer or property owner works with staff
I to develop a proposal, there is a lot of effort, time and money
that is expended before it is reviewed by the Planning
Commission. A developer could easily be in a position whereby
I having to produce a submittal that is acceptable to the Planning
Commission and City Council, their request for a related variance
could be rejected by the Board of Adjustments, thus jeopardizing
all of the work done to date.
IBased upon these considerations, staff is proposing an ordinance
amendment that would give the City Council the ultimate authority
I to approve variances that stem from subdivisions, site plans and
conditional or interim use permits. The ordinance was drafted by
the City Attorney at our request. The Board of Adjustments and
I Appeals would continue to review all other variances. Note that
the proposed procedures will in no way minimize the community' s
ability to review and comment on the variance request since in
either case it would be subject to public hearing. We believe
I that this revised procedure would facilitate effective and timely
review of these matters.
I In another related matter, we have reviewed the City' s actions on
variances in the past and find that there are occasionally
instances where the Council would like to approve a variance, but
I that the existing five conditions for consideration of approval
do not provide the necessary latitude to make this decision.
Staff does not wish to indicate any desire to undermine the con-
sistent interpretation of the ordinance, however, it is our
I belief that additional latitude could legally be provided in many
of these instances. We believe that the revised interpretation
of hardship could be adopted under existing State Enabling
I legislation and is not contingent upon changes to the law that
are currently being comtemplated. Consequently, staff asked the
City Attorney to review the criteria and suggest language that
' would provide this latitude. He has developed six revised cri-
teria that we believe accomplish this purpose. We note that the
draft would provide that the interpretation of hardship is
modified so that undue hardship means that the property could not
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Planning Commission
March 14 , 1990 1
Page 3
be put to a reasonable use because of its size, physical surroun-
dings, shape or topography. Reasonable use is further defined as
a use commonly made by other properties in the district. This
provision would allow the City Council to legitimately review the
surrounding neighborhood and grant such variances as may be
necessary to allow development to occur in a manner that is con-
sistent with the surroundings. The remaining conditions would
ensure that variances are not a self-created hardship, that the
variance is not based upon monetary concerns and that the
variance would not be detrimental to other parcels in the area.
Thus we believe that this additional latitude may be granted
while continuing to maintain the City standards with regards to
reviewing variances.
To facilitate a comparison between the existing and proposed
variance findings, these are reprinted below.
Existing '
The Board of Adjustments and Appeals shall not recommend and the
Council shall not grant, a variance unless they find the
following facts :
A. That the literal enforcement of the Ordinance would cause
undue hardship and practical difficulty.
B. That the hardship is caused by special conditions and cir-
cumstances which are peculiar to the land and structure
involved and which are not characteristic of or applicable to
other lands of structures in the same district.
C. That the granting of the variance is necessary for the pre-
servation and enjoyment of substantial property rights.
D. That the special conditions and circumstances are not a con-
sequence of a self-created hardship.
E. That the variance will not be injurious to or adversely '
affect the health, safety or welfare of the residents of the
City of the neighborhood wherein the property is situated and
will be in keeping with the spirit and intent of the
Ordinance.
Proposed '
A variance may be granted by the Board of Adjustments and Appeals
or City Council only if all of the following criteria are met:
A. That the literal enforcement of this Chapter would cause
undue hardship. "Undue hardship" means the property cannot
be put to reasonable use because of its size, physical
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Planning Commission
I March 14, 1990
Page 4
I surroundings , shape or topography. Reasonable use is a use
commonly made by other property in the district.
B. That the conditions upon which a petition for a variation is
IIbased are unique to the parcel of land for which the variance
is sought and are not applicable, generally, to other prop-
erty within the same zoning classification.
IC. That the purpose of the variation is not based exclusively
upon a desire to increase the value or income potential of
Ithe parcel of land.
D. That the alleged difficulty or hardship is caused by this
ordinance and is not a self-created hardship.
IE. That the granting of the variation will not be detrimental to
the public welfare or injurious to other land or improvements
Iin the neighborhood in which the parcel of land is located.
F. That the proposed variation will not impair an adequate
I supply of light and air to adjacent property or substantially
increase the congestion of the public streets, or increases
the danger of fire, or endanger the public safety or substan-
tially diminish or impair property values within the neigh-
' borhood.
Staff brought this item before the City Council at their February
I 26 , 1990, meeting for discussion purposes. Our primary reason
for doing this was to obtain their input since the main thrust
of the ordinance was to respond to issues that had been discussed
with them previously. We sought their direction as to whether
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the proposed as "on-track" and consistent with their intent.
There appeared to be substantial support for the proposal by most
I of the Council members. Minutes of the meeting are attached.
The Council did raise concerns over the wording in Section 20-58
(a) defining what constitutes an "undue hardship" . The original
I draft defined undue hardship as a condition where "property can-
not be put to a reasonable use because of its size, physical
surroundings, shape or topography" and further that "reasonable
use is a use commonly made by other property in the district" .
I The Council asked that staff provide further definition to avoid
arbitrary decisions.
I Staff worked with the City Attorney to develop a revised draft.
Our current proposal further defines reasonable use as a "use
made by a majority of other property within 500 feet" . We sup-
' port this concept believing that it will allow for the use of a
"neighborhood standard" where that standard deviates from normal
ordinance requirements. The Carver Beach area is a prime
example. As we envision it, the applicant would be required to
Iprovide data to support this finding.
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Planning Commission
March 14, 1990
Page 5 '
The Planning Commission discussed the draft ordinance at their
March 21st meeting. They were generally supportive of the concept
and several members commented that this would clarify procedures as
well as improving a consistency of decision making regarding these
matters. The Commissioners were also supportive of the conditions
for granting variances. There was a fair amount of discussion
regarding the undue hardship criteria. They asked that an intent
statement be added to the effect that the intent of this finding is
not to allow a proliferation of variances but rather to recognize
that some neighborhoods do not meet current standards and that
variances which meet or exceed conditions found within 500 feet of
a lot would be considered. The City Attorney has been asked to
amend the ordinance accordingly and revised copies attached.
The Board of Adjustments and Appeals will be meeting before the
City Council meeting and has discussion and recommendation on this
ordinance scheduled on their agenda. Staff will convey their
comments to the City Council. '
STAFF RECOMMENDATION
Staff recommends the City Council approve the first reading of the '
ordinance.
ATTACHMENTS
1. Ordinance Amendment.
2 . City Council minutes dated February 26, 1990.
3 . Planning Commission minutes dated March 21, 1990.
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CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorneys at Law
' Thomas J. Campbell
Roger N. Knutson (612) 456-9539
Thomas M Scott Facsimile (612) 456-9542
Gary G. Fuchs
James R. Walston
' Elliott B. Knetsch
Dennis J. Unger
March 2 , 1990 MAR 0 5 1J.}
CITY.OF CHANHASSEN
' Mr. Paul Krauss
Chanhassen City Hall
' 690 Coulter Drive, Box 147
Chanhassen, Minnesota 55317
RE: Variances
' Dear Paul:
' Enclosed please find a redraft of the ordinance attached to
your February 20, 1990, letter to Don Ashworth pertaining to
variances. The only changes from your draft are in Section 3 (c) ,
Section 4, and Section 5 (a) .
11 Very truly yours,
' CAMP: - , , UTSON, SCOTT
F CHS, P A.
BY:
roger N. Knutson
RNK: srn
' Enclosure
Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122
T 9375739 P.03
APR-04-1990 10:10 FROM CAMPBELL, SCOTT & FUCHS TO '
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA II ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 20 OF THE CHANHASSEN 1
CITY CODE, THE ZONING ORDINANCE, CONCERNING VARIANCES
THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS: II
Section 1. Section 20-28(b) (2) of the Chanhassen City Code
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is amended to read:
To hear requests for variances from the provisions of this II Chapter which are not made in conjunction with platting,
site plan review, conditional use or interim use permit
application. s II 2. The caption of Section 20-29 of the Chanhassen
City Code is amended to read: I
Sec. 20-29. Board of Adjustments Variance and Appeal
Procedures.
Section 3. The Chanhassen City Code is amended by adding I
Section 20-30 to read:
Sec. 20-30. Variance Requests in Conjunction with Platting,
Site Plan Review, Conditional Use and Interim
Use Permits.
(a) Form; Fee. Appeals and applications for variances I
from the provisions of this Chapter made in conjunction with
platting, site plan review, conditional use and interim use I
permits and variance from the subdivision ordinance shall be
filed with the zoning administrator on prescribed forms. A
fee, as established by the City Council, shall be paid upon
the filing of an application.
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(b) Hearing. Upon the filing of such variance
applications the zoning administrator shall set a time and
place for a hearing before the Planning Commission on the
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application, which hearing shall be held within thirty (30)
days after the filing of the application. At the hearing the
Planning Commission shall hear such persons as wish to be
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heard, either in person or by attorney or agent. Notice of
such hearing shall be mailed not less than ten (10) days
before the date of hearing to the person who filed the
application for variance, to each owner of property situated
wholly or partially within five hundred (500) feet of the
property to which the variance application relates. The
names and addresses of such owners shall be determined by
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II the zoning administrator from records provided by the
applicant.
(c) Recommendation. Following the public hearing the
Planning Commission shall recommend to the City Council that
the variance be granted or denied. If the Planning
Commission recommends approval, it may also recommend
I appropriate conditions.
(d) Council Action. By majority vote, the City
I Council may approve or deny the variance request. In
granting any variance the City Council may attach conditions
to ensure compliance with this Chapter and to protect
IIadjacent property.
(e) Action Without Decision. If no decision is
II transmitted by the Planning Commission to the City Council
within sixty (60) days from the date a variance request is
filed with the zoning administrator, the Council may take
action on the request, in accordance with the procedures
II governing the Planning Commission, w. thout further awaiting
the Planning Commission's recommendation.
II Section 4. Section 20-56 of the Chanhassen City Code is
amended to read:
Sec. 20-56. Generally.
IIA variance from this Chapter may be requested only by
the owner of the property or the owner's approved
I representative to which the variance would apply. A variance
may not be granted which would allow the use of property in
a manner not permitted within the applicable zoning
district. A variance may, however, be granted for the
I temporary use of a one-family dwelling as a two-family
dwelling. In granting any variance, conditions may be
prescribed to ensure substantial compliance with this
IChapter and to protect adjacent property.
Section 5. Section 20-58 of the Chanhassen City Code is
amended to read:
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sec. 20-58. General Conditions for Granting.
IA variance may be granted by the Board of Adjustments
and Appeals or City Council only if all of the following
criteria are met:
I (a) That the literal enforcement of this Chapter would
cause undue hardship. "Undue hardship" means the property
I cannot be put to reasonable use because of its size,
physical surroundings, shape or topography. Reasonable use
includes a use made by a majority of other property within
IIfive hundred (500) feet of it. The intent of this provision
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APR-04-1990 10:12 FROM CAMPBELL, SCOTT & FUCHS TO r't).2
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is not to allow a proliferation of variances, but to I
recognize that in developed neighborhoods pre-existing
standards exist. Variances that blend with these pre-
existing standards without departing downward from them meet
this criteria.
(b) That the conditions upon which a petition for a
variance is based are unique to the parcel of land for which
the variance is sought and are not applicable, generally, to
other property within the same zoning classification.
(c) That the purpose of the variation is not based
exclusively upon a desire to increase the value or income
potential of the parcel of land. '
(d) That the alleged difficulty or hardship is caused
by this ordinance and is not a self-created hardship.
(e) That the granting of the variance will not be
detrimental to the public welfare or injurious to other land
or improvements in the neighborhood ih which the parcel of
land is located.
(f) That the proposed variation will not impair an
adequate supply of light and air to adjacent property or
substantially increase the congestion of the public streets,
or increases the danger of fire, or endanger the public
safety or substantially diminish or impair property values
within the neighborhood.
Section 6. This ordinance shall be effective immediately
upon its passage and publication.
PASSED AND ADOPTED by the Chanhassen City Council this 1
day of , 1990.
ATTEST:
Don Ashworth, Clerk/Manager Donald J. Chmiel, Mayor
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(Published in the Chanhassen Villager on , 1990. )
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IICity Council Meeting - February 26, 1990
Councilman Johnson: Was it published?
ICouncilwoman Dimler: No. We don't have to publish it.
Don Ashworth: This, as it appears here in front of you was published to the
ibest of my knowledge.
Councilman Johnson: So we could take action?
IIDon Ashworth: You could take action if you wanted.
Mayor Chmiel: Jim mentioned March 12th so let's go with that.
BOARD OF EQUALIZATION AND REVIEW, SET DATE FOR FINALIZING BOARD ACTION, CITY
IMANAGER.
Don Ashworth: We've already set the first meeting for the Board of Adjustments
to occur for May 15th. I think we had a special time on that. I really do not
II think that you're going to have that many people in on either the 15th or the
28th. I think last year we had a number of people in on the initial session but
by the time we got into the last meeting, the assessor had net with most of the
' people and I think you were down to just the 2, 3, 5 people who attended.
Accordingly, I think that we could take care of the second meeting as a part of
our regular Council agenda. I would look to May 28th but in doing that, I would
like to be able to work with the Mayor to determine whether or not an early
' start was necessary or not. I won't know for another 30 days how big that
agenda will be for May 28th and if possible, we should be able just to start it
at 7:30 and be able to take care of all of our business including the Board. But
' if necessary, I'd like to work with Don and potentially set 6:30 or 7:00 if it
appears as though an early start is necessary.
Councilman Johnson: Are we meeting the 28th? I thought that was, because
that's Memorial Day. I thought we had modified the month of May to first and
third?
ICouncilman Boyt: No, one of the is right at the end of the money.
Mayor Chmiel: The 28th is Manorial Day. How about Tuesday the 29th?
Councilwoman Dimler: We already moved it to another date.
' Don Ashworth: I'll report to the City Council Tuesday what night you picked out
and verify with the Assessor if that night's okay with him.
IfDISCUSSION REGARDING VARIANCE PROCEDURE AND REGULATIONS, PLANNING DIRECTOR.
Paul Krauss: On several occasions in the past...
IMayor Chmiel: Is this brief Paul?
Paul Krauss: I think the discussion with it might be rather lengthy.
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City Council Meeting - February 26, 1990 1
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Mayor Chmiel: I thought there was a lot of thought put into this and I
appreciate your going through it.
Paul Krauss: Were putting this on basically I should add as an informational
item to get some direction from Council. It's not a matter that we've discussed
with the Board of Adjustments. I mentioned it to them tonight and they're
interested in it obviously and they're here. Nor have we discussed at the
Planning Commission some of the changes we're proposing would affect them as
well. Basically we're bringing it to you and if you tell us you don't want us
to proceed with it, we'll drop it but it appeared to us in the past that there
was some desire to have same flexibility on it in the variance procedure that is
not now allowed. Working with the City Attorney we felt that that could be
offered while still keeping with the intent of the variance procedure and not
violating it. There's been a lot of discussion about State enabling legislation
changing how we conduct ourselves with variances and it may in fact do that but
it's not clear to us at this point what it's going to do or when it's going to
do it. That enabling act is kicked around now for almost 3 years and it still
isn't adopted and in the short session this year, it's probably not likely to
either. What we propose that you look is revised language for the hardship
criteria. The other thing that we propose that you look at is amending the
procedures in terms of who reviews variances and when. We find that for normal
variances, the one's we had on tonight. The home setback, the shed setback...
one or two variances. I think it ultimately came down to one variance for a
road grade but that was a variance the Planning Commission and City Council
considered in the context of the subdivision. If you just take the variance out
of context and put it before the Board of Adjustments, I don't know that you're
giving that project a fax shake. There may be other things that you considered
in developing that recommendation. Also, there's the matter of time and how we
bounce a developer back and forth or an individual back and forth for that
matter. In the case of Vineland Forest, it went through the Planning
Commission. There were no variances there. It went to the City Council. It
got bounced back because we were looking at roads. A variance materialized. At
that point we have to tell the developer, well the City Council likes it but
we'll have to get the Board of Adjustment to approve it so it goes back on one
of their agendas. Frankly the process is not unworkable but it's a little
clunky and other communities have found ways to work around it and we propose
one of those ways of doing that. And again we're just throwing this out for
discussion purposes and we'll take our cue from you on this.
Mayor Chmiel: Thank you. I guess I have just one quick question. Roger, what
is the status of the variance thing that we discussed sane time ago with sane of
the State changes that were going to be?
Roger Knutson: It's part of the rewriting of the entire land use laws. The
current draft, it sits in the legislature today would not allow flexibility.
That was in an earlier draft that has been now put aside. Now that's just going
to hearing, will be going to hearing. It hasn't gone to hearing yet and how it
finally works it's way out is anyone's guess.
Mayor Chmiel: Is there anyone lobbying for the previous, for the earlier one?
Roger Knutson: Yes. Me.
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City Council Meeting - February 26, 1990
Mayor Oriel: That's why I was asking the question.
Paul Krauss: There's also a number of carmunities lobbying against it for
various reasons.
Roger Knutson: The only comment I have made, acting as a private individual, is
' that I like to see cities have the discretion to set standards that they think
is subject to their community. Not that I think the standards for variances
should be tough or weak or anything else. Just a courtesy to City Council to
set those standards. There are others who say, and I've argued at length about
' it, that there's a real need for State uniformity on this issue. My response to
that has been, anyone who has gone to more than one city council and seen how
various city councils handle variances has realized that there is no state
' consistency now anyway. &cept some city councils like to play by the rules and
a more liberal interpretation of it.
' Councilman Johnson: And after the next election, that changes too.
Councilman Boyt: I'd like to mention a couple things if I might. Sore
difficulties I see with this. First, in your description Paul of the process,
that's exactly what we're doing today. What you're proposing. Everything
doesn't go to the Board of Adjustment and Appeals.
' Paul Krauss: That's true but I'll leave it to Roger, the way the ordinance is
structured right now, it probably should.
Councilman Boyt: Okay, but it doesn't. So what you're proposing is to bring
' this in line with what we're actually doing?
Councilman Johnson: Yes.
Councilman Boyt: Which rakes sense. Boy, the desire to have some kind of
reasonable flexibility, that's very tempting. What I find though in sera of
I your convents here. Reasonable use is further defined as use commonly, made by
other properties in the district.
Mayor O iiel: What page are you on Bill?
ICouncilman Boyt: That's page 3, the second line from the top. The question
that I had was, what if the surrounding properties all have non-conforming uses
' which in fact our ordinances say that non-conforming uses can't be perpetuated
if they burn down or whatever. Are we really gaining flexibility there?
ICouncilman Johnson: It certainly would have helped us clean up Carver Beach.
Paul Krauss: The variance would not apply to the use of the property. It would
apply to standards applied to that property. Carver Beach is a good case in
Ipoint. If everybody is on a 7,000 square foot lot, you rake the new person to
care in to have a 15,000 square foot lot or do you take those 7,000 square foot
lots into consideration? I think the way these are structured it would
Iencourage you to take that into consideration.
Councilman Boyt: Well there's the advantage. I think of the Lake Riley
situation that we just extended here. There certainly is an advantage to say
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City Council Meeting - February 26, 1990 ' II
well nobody on either side of the sky has side setbacks either so we're really M
putting this house into one that fits. And it would be nice to have someway to
do that. I'm just real concerned that what we end up doing is creating, is we
can't fix a problem.
Councilman Johnson: It makes it worse.
Councilman Boyt: So that's one issue that I'd sure like you to look at before ,
we pursue this a whole lot further. Then under your proposed point A at the
bottom of page 3, literal enforcement of this Chapter would cause undue
hardship. Undue hardship means the property cannot be put to reasonable use.
Well, to me that means anything can fit in there because you then go on to say
reasonable use because of size, physical surrounding, shape or topography. Tell
re something you left out? We're really saying, if I can't do what I want to do
with my piece of property, then I can do it because this says I can. Undue
hardship. Is it undue hardship if I can't have my deck?
Mayor Chm►iel: Might be. I
Councilman Boyt: Well it isn't currently.
Paul Krauss: No, but I think this allows you to, you've got exercise this with
great caution. When we had that variance and I forget who the applicant was on
Lake Riley, you and I had a long discussion about what was a reasonable use of
the property. In the staff report I had recommended that it be approved because
it was reasonable to think that they should have a 3 bedroom house with a deck
same as other people had on adjoining lots. I remember Councilman Boyt that you
had same concerns with that theory and there was another method found to approve
it but I think that this wording would allow us to take those things into
consideration. If you think a reasonable use of a lot is not the bare minimum's
900 square foot residence that satisfies building code but is rather what the
normal Chanhassen resident probably has a right to expect to live in. This
would allow you the latitude to approve those sorts of variances.
Councilman Boyt: Well somewhere in here, there's two things that happened with
a variance at least. One of them is that we allow somebody to make reasonable
use of their property. The other one is, we protect surrounding property owners
by giving them the protection of our zoning laws. All I'm saying is that we've
got enough problems with our current interpretation of our variance ordinance.
To now come in and say, any undue hardship for any of these reasons, I maintain
that the way A is written right now, anything can pass.
Councilman Johnson: I don't like the last sentence of A. Reasonable use is a
use carr►only made by other properties in the district. Again, look at Carver
Beach. That says we're just going to perpetuate those non-complying things.
Commonly the sheds are up against the property line so the one we're talking
about today, under this would say that's fine. In Carver Beach there are no
setbacks.
Mayor Chc,iel: Yeah, but at that time Jay when they had those right at the
' property line, it was permitted.
Councilman Johnson: Is it but it's now non-conforming so a new guy could come
in and ask to put it right at the property line today where what we should be
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City Council Meeting - February 26, 1990
working towards is, when somebody's shed's burned down, you don't rebuild it
within the setback. Kind of a crazy thing to think now but you don't perpetuate
the non-conforming.
Councilman Workman: But in that situation Jay, it would take 200 years before
people could all have their sheds off the property line.
' Councilman Johnson: Oh yeah.
' Councilman Workman: So why fight that? Why worry about it?
Councilman Johnson: If you never start, it will never get there. If you start,
you've got to take the first step of every journey and this is a journey towards
Ibringing Carver Beach into compliance. You and I will not be alive when Carver
Beach cores into compliance. Nobody will be. If we have a nuclear disaster and
it clears out Carver Beach and gets replatted.
ICouncilman Workman: Down on Lake Riley. Skinny little lots. Are they ever
going to be in conformance?
ICouncilman Johnson: Probably not.
Councilman Workman: In 400 years? Not unless all the houses burn down and they
Icombine the lots.
Councilman Johnson: But'we need to keep bringing them up...
Councilman Workman: I'm not defending this thing to the hilt but we need sore
discussion on it and maybe'tonight's not the night.
IIMayor Chmiel: I think what we have to do is have a reasonable way to try to
help and assist people put in sore of their basic needs that they want to
improve on their particular lot.
1 Councilman Johnson: It has to be an improvement over. In a non-conforming
district, which I think we can call several parts of this town as non-conforming
I districts. The majority of the houses in the district are non-conforming... any
variance has to be an improvement over the general district.
IIMayor Chmiel: I think Paul put a lot of thought into this and I really, as I
mentioned before, I commend him for it. Maybe some things that are not perfect
in here but nonetheless there's been a lot of thought.
I Willard Johnson: We've been working in the Carver Beach a number of years. I'll
go along with Jay. We've been trying to rake this hold to the city setbacks and
I agree with Jay. We aren't going to get the 100% down there in Carver Beach
I but we're working at the places that are gradually coming in and I guess I think
we can do it pretty good with what we've got.
II Councilman Johnson: I've seen improvement in the little time that I've been
here.
Willard Johnson: You'll get one like we got down there in Lake Riley
IIoccasionally but I feel we're doing pretty good with what we've got and you're
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City Council Meeting - February 26, 1990
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just going to have to work each one individually.
j g rxJ � That's fray, ny experience
being on the Board. I realize sane of these people have got a hard situation
but we get a 7,000 foot lot, sometimes we tell them hey meet city setbacks and
by golly they do it. It cleans up an area. Because we had a guy, that guy that
we've been fighting these last 2 meetings because everything goes in Carver
Beach. That isn't the truth. I realize somebody throws up a shed without the
City catching it and you're going to have that anyplace in the city. I can show
you a lot and I wish the Council would all go and look at it. It's just down
from me in the $350,000.00 bracket. I called City Hall on it. We've got a
loophole in our own ordinance. My neighbor has discussed it and his cousin
builds down behind the Catholic Church in Excelsior or Shorewood or whatever it
is.
Councilman Johnson: St. John's. '
Willard Johnson: Yeah, behind St. John's. He says, look at that lot right on
Apple Road or Yosemite. That house is built right on the creek. I told him
about it and he said well go around and look where the driveway goes in. That
driveway is one car width going in so I called City Hall and they says well it
borders on two streets. I wish the Council would all go and look at that one.
It's a pie shaped lot and where he drives in, which I would consider his front
on the cul-de-sac, can barely get in so no way in the world reach the part on
Yosemite.
Councilman Johnson: Yes, that is a loophole in our ordinance.
Willard Johnson: Where the creek is, you can't fill the creek. So I guess
what I'm saying is hey, he don't have the frontage on the cul-de-sac so I hope
you can clean up your ordinances on your developments.
Councilman Johnson: In this case, on the side there is street frontage. This
is before Paul's time and he's sitting there looking. on the side that this lot
actually has street frontage, so it has street frontage. It's got 90 foot of
street frontage. It's non-accessible because there's a 40 foot deep creek
there.
Paul Krauss: There's a situation similiar to that in Timberwood. ...private
driveway because the public platted road isn't built and you can't access it.
Councilman Johnson: Yeah, I think I argued for both of those. I know I argued
on the one over there by. '
Mayor Chiiel: Same direction I think Paul is looking for from us.
Paul Krauss: I'd like to know if you want us to pursue it? 1
Councilwoman Dialer: Yes, I want you to pursue it.
Mayor Chmiel: Yeah. I'd like to see it pursued. At least that's my opinion.
Councilman Hoyt: Sure pointed out same areas that I think are real problem
areas with it.
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,City Council Meeting - February 26, 1990
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I Councilman Johnson: Yeah. I think it's going to be too loose with some of this
stuff.
Councilwoman Dimler: We might want to tighten sane up but we do want to give 1
1 sane more breathing room.
Councilman Workman moved, Councilwoman Dimler seconded to adjourn the meting.
All voted in favor and the motion carried. The meeting was adjourned.
Submitted by Don Ashworth
II City Manager
Prepared by Nann Opheim
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Planning Commission Meeting
March 21, 1990 - Page 35
II
Ahrens: Notification of the public is a hard thing to be against .
II
Emmings: Yeah. I think we should try it.
Erhart: I think it ' s good too. I think it is going to put a burden on thll
City that' s going to be such a detail in that they tend to fall in cracks
and I'm sure that' s what happened in Eden Prairie but with that, would
someone like to make a motion? I
Wildermuth: I'll move that the Planning Commission recommend approval of
the draft ordinance.
IIAhrens: I ' ll second it.
Wildermuth moved , Ahrens seconded that the Planning Commission recommend II
approval of the Zoning and Subdivision Ordinance Amendments Pertainng to
Requiring the Posting of Development Notification Signs. All voted in
II
favor and the motion carried.
4 PUBLIC HEARING: 1
ZONING ORDINANCE AMENDMENT TO AMEND ARTICLE II , SECTIONS 20-56 THROUGH
20-70 PERTAINING TO PROCEDURES FOR THE ISSUANCE OF VARIANCES.
Paul Krauss presented the staff report on this item. Vice Chairman Erhart,
called the public hearing to order .
II
Erur1ings moved , Ellson seconded to close the ublic hearing. All voted in
P 9
favor and the motion carried. The public hearing was closed.
Erhart: Alright, Joan do you have any questions? II
Ahrens: Not right now.
I
Emmings: I 've got one I 'd like to ask. Let' s say you' re in a place where,
a neighborhood that' s got 70 foot lots with lake frontage or whatever and
they are substandard lots. Not only for their width but for their area. r
Let's say somebody lived in there but had bought two lots and built a
house. Could they tear their house down, subdivide those lots and build
two houses? You see what I'm saying?
I
Krauss: Well what you want to avoid I think, and I think what you' re
getting at Steve is that you don't want to lower the standard in the
II
neighborhood . You don't want the lowest common denominator be what is
enforced. The intent of this, and I hope the language does it, is to
establish the neighborhood average and then say, if you meet or beat that
average, we' ll probably recommend that it be approved. So there's a middiil
ground if you will .
Emmings: But would you be able to say no to someone who wanted to do what ,
I just. . .
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Planning Commission Meeting
March 21, 1990 - Page 36
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' Ahrens : That would be meeting the standard .
Wildermuth: Paul, I like your redraft of the ordinance criteria until you
' brought up the Carver Beach. It seems that somebody that wanted to create
an other 7,000 square foot lot, we ought to be in favor of that.
' Emmings: Yeah, I don' t have any trouble with someone coming in to an area
where everything is substandard but there is a neighborhood standard and
doing something on their lot that everybody else has there. Somehow that
doesn't seem that bad to me but the abuse in that, or the limit on that
I guess to me would be I don' t want you creating more of it. I don' t want
you to take the house off the two substandard lots and build two houses on
two substandard lots .
Wildermuth : That' s what I 'd be concerned about .
'
Emmings: And I wonder if this protects us or, I 'm not even sure if one of
those lots was even empty that I 'd want to see a house put on that lot
which is kind of what we had on that one lot on Riley lake that they tried
to make a beachlot out of and we wouldn' t let them. We say you can ' t build
a house on there because it' s too small and maybe I 'm confusing my facts
but it would seem to me that maybe even you wouldn' t want to have another
house built on that if it was real substandard. If you couldn' t fit it in
' with , so I don ' t know. I 'm generally in favor of what you' re doing . I
think that we should not send variances required by a site plan for example
to the Board . I think those should be dealt with here and at the City
Council . I 'm generally in favor of this. The only thing is I don't want
this to go too far to create more substandard stuff . Do you think that
that could be prevented under the language that you've got in this?
' Krauss : As we discuss it, I know the intent here is to do what I said
earlier that we would establish a neighborhood average and say if you meet
it or beat it you' re entitled basically.
' Emmings: Is that expressed?
' Krauss : No it isn' t and I 'm looking at that. I mean that was the intent
when Roger came in and said reasonable use includes a majority of property
within 500 feet . Majority to me means average. Now we could further
clarify that to state that. . .
Emmings: What about putting in an intent statement that says, it is not
the intent of this ordinance to allow a proliferation of substandard lots
' or development but rather to recognize that some neighborhoods have
standards and as long as the applicant for the variance, I don't know.
Finish it. Meets that standard or exceeds it.
' Krauss: We can clarify that way I 'm sure.
Emmings: But an intent statement maybe at the beginning would put a bottom
' or put a floor on this thing so you're not seeing all kinds of things here
that we don' t want to see.
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Planning Commission Meeting
March 21, 1990 - Page 37
Erhart : Sure. I think the term, the word district and the last word in A II
that's the one that's questionable to me. District can mean a big area. I
think what I hear you saying , you keep using the word neighborhood . To me,
those are terms that mean two different things.
Krauss : Yeah, and that's why we established a 500 foot criteria . II Erhart: Okay, I 'm missing that.
Enmings: The ordinance. Don' t look at the staff notes. Look at the
II
ordinance itself. It may be in there but I don' t know where.
Ahrens : Not in the proposed ordinance.
Emr' in s: But look in the ordinance itself . The language is different tha
9
what ' s in the staff report than what' s in the ordinance.
Erhart: Oh, is that right? II
Emmings: Because I looked for some stuff too. . . 1
Ahrens: Yes , 500 feet is in here. 20-58 (a) .
Krauss : I think it' s real important that you establish some sort of a
criteria like that. 500 may be arbitrary but you don' t, you know everybody
comes to us when they want a variance and they say well I know Joe Schmoe 3
blocks away from here has got the identical situation so I 'm entitled to II
it. Well no you' re not . I mean that' s a one off situation. If everybody
in the neighborhood had it , maybe you are but otherwise not.
Emmings: If you apply for a variance, do you have to present a property 1
list?
Krauss : Yes . I
Emmings: Is that a 500 foot?
Krauss: Yes. That's why it matches. 1
Emmings: So that kind of fits.
II
Erhart : Okay, and so the only change, procedurally the only change you' re
making is that, in the first place ultimate authority here on all variance
today is the Variance Board. That' s not a recommendation to the City
Council. That's final .
Krauss : Well there' s been a lot of discussion on that but by State law, II
yes. The Board is a quasi-judicial body.
Erhart : Alright. So the only change here, you' re talking about II subdivisions?
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' Planning Commission Meeting
March 21, 1990 - Page 38
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Krauss : Subdivisions . Rezonings. Site plans and I think CUP' s when a
variance becomes apparent during those that you would make a recommendation
on it and the Council would approve it.
' Emmings: Ultimately, now does the Board recommend to the City Council too?
Krauss : No .
' Emmings: They make the final decision?
' Olsen: When there's a split vote.
Krauss : Right . And the City Council has taken to reviewing most of the
actions of the Board which. . .
Olsen : Right , that ' s been discussed . They bring it up for discussion that
same night.
Emmings: So you review your own decisions Jay? That' s kind of neat .
Krauss: I think it' s fair to say, I discussed a draft of this with the
' Board at their last meeting and Willard and Carol have copies of the
ordinance. I think they're both concerned with the ordinance as currently
drafted . I will also in this process what we would plan on doing is
' getting your recommendation. Taking it to them for their recommendation
and then giving the whole package to the City Council .
' Emmings: Willard called me. He probably called everybody but, and I told
him I wished he could be here to tell us what he thought but he apparently
had a conflict. He said Carol was going to be here and she' s not but
they' ll have their input in the City Council .
Krauss: Yes .
' Erhart : Well to me, conceptually it makes more sense on issues that we
deal with that there's a gradual process of approval working towards the
City Council as opposed to a gradual process working towards the City
Council with this all of a sudden this exception that can come in at the
end . That doesn' t seem to make good sense.
Emmings: Like it's pointed out in the City Council Minutes too. This is
' in fact is what we' re doing at the present time. It' s really, we've got a
defacto ordinance anyway. At least in terms of site plan variances and
things like that. We' ve been doing it all along ever since I 've been here.
' Erhart: Any other comments or questions? Jim anything?
Wildermuth: I think basically it's good.
Erhart: Okay. If not, is there a motion?
Emmings: I 'd like to move that the Planning Commission recommend the City
Council adopt the ordinance but I 'd like to see an intent section added
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Planning Commission Meeting II
March 21, 1990 - Page 39
I
along the lines that we discussed.
Ellson: I ' ll second it. II
Emmings moved, Ellson seconded that the Planning Commission recommend II
approval of Zoning Ordinance Amendment to amend Article II, Sections 20-56
through 20-70 pertaining to procedures for the issuance of variances with II
the addition of an intent section. All voted in favor and the motion
carried.
Krauss : Mr . Chairman, I know Commissioner Ahrens has a commitment to leavII
at 10: 00. I wondered if I could ask a question of the commission prior to
that. We have tentatively scheduled another special work session meeting II
for next Wednesday. I think there' s a massive case of burn out happening
both at staff and Planning Commission level . We've got a lot of work ahead
of us to do and very limited time to do it and we' re wondering how best to
resolve that . Now it occurred to me tonight , I mean we really have to get
the work through. I 've got a very large packet to send out to you tomorro
that has a lot of the sections being drafted up. The goals and policies
are in there and everything else. Rather than meet next Wednesday, would II
you consider possibly meeting like for dinner before the next Planning
Commission meeting possibly so we can roll over from one to the other and
combine an evening? Is that an option? i
Emmings: Meet earlier in 2 weeks rather than meeting. . .
Krauss : Well meet on a regular Planning Commission night. Skip next week'
Ahrens: I like that idea.
Ellson : I 'd rather do that . I
Erhart: Much better .
I
Wildermuth: I ' ll be gone next Wednesday.
Erhart: I will too. . I
Krauss : Would 5: 30 be too early for everybody?
Emmings: Are you talking about meeting here for pizza? I
Krauss : We' ll meet here for pizza, subs, whatever .
IEmmings: What's the menu?
Krauss : You want Chinese? I
Erhart: Let' s get to the core of the issue here.
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