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13. Zoning Ordinance pertaining to issuance of variances , , /3 I CITYOF ,..... I ,pi 1 690 COULTER DRIVE • P.O. BOX 147• CHANHASSEN, MINNESOTA 55317 (612) 937-1900• FAX(612) 937-5739 Action by Cry Administrator dorsed+ ✓ D(R1R- MEMORANDUM Modifier ITO: Don Ashworth, City Manager Dejected 6-29-fa Date Submit FROM: Paul Krauss, Planning Director . ed to Commission I V pate Submitted to Council DATE: May 21, 1990 4_4_9 p I SUBJ: Amendments to Chapter 20, Article II, Administration and Encorcement of the City Code Pertaining to Variances IWhile working on various development proposals, two aspects of the City's variance procedure have come to staff's attention as areas where modifications could prove to be useful. These two II areas concern administrative procedures as to who is responsible for reviewing and approving variances while the second is related to the criteria that are used in reviewing variance proposals. IIAccording to the current ordinance, all variances are to be reviewed by the Board of Adjustments ,and Appeals. In actual practice over the past few years, while many variances have been II brought before the Board, a number of them have been approved directly by the City Council after consideration by the Planning Commission. I The Board of Adjustments and A ppeals serves an extremely useful function in the community. However, the procedures whereby all I variances are reviewed by the Board could potentially be con- fusing and time consuming and represent an avoidable problem in the timely and effective review of development proposals. Many communities divide ,-up the responsibilities for approval of II variances. 'The Board of Adjustments and Appeals is _generally responsible for those variances which are associated with building single family -homes or additions to bo a homes on I single family lots. In many of these -communities, it is the Planning Commission and ultimately the City Council that review 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 considering modifications to the variance procedures. A variance which, for example, is associated with a subdivision may be con- I sidered by the Planning Commission and City Council to be valid based upon a number of considerations. These may include II I Planning Commission May 21, 1990 Page 2 topographic features, surrounding development pattern, desire to avoid other more significant variances, public input, environmen- tal preservation efforts or similar matters. While the Planning 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 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 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 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 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. ' Based upon these considerations, staff is proposing an ordinance amendment that would give the City Council the ultimate authority 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 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 that this revised procedure would facilitate effective and timely review of these matters. 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 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 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 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 I 1 .. Planning Commission I/ May 21, 1990 Page 3 I 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 I undue hardship. "Undue hardship" means the property cannot be put to reasonable use because of its size, physical I Planning Commission C ssion May 21, 1990 Page 4 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 based 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. ' 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 variation will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in 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 11 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 26, 1990, meeting for discussion purposes. Our primary reason I 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 the proposed as "on-track" and consistent with their intent. There appeared to be substantial support for the proposal by most 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 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" . The Council asked that staff provide further definition to avoid arbitrary decisions. 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 provide data to support this finding. 1 I/ Planning Commission May 21, 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 11 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. Staff brought the ordinance before the Board of Adjustments and Appeals for discussion on April 9, 1990. They raised a number of issues with the proposal resulting in its being tabled at the request of Councilman Johnson. He proposed that the ordinance be discussed at a joint City Council/Board of Adjustments and Appeals meeting. i Staff discussed the draft ordinance at a joint meeting of the Board of Adjustments and Appeals and City Council on May 14, 1990. The issues of procedures and intent of the Zoning Ordinance were discussed at length. In general, there was agreement that the ordinance was generally workable as proposed, but that some modifications would be required. Based upon the discussion, the findings required to support a variance were modified. Finding C was revised from stating 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", to simply state "that the purpose of the variation is not based upon a desire to increase the value or income potential of the parcel of land." The word "exclusively" was deleted to clarify the intent of this statement as requested by Councilman Johnson. RECOMMENDATION ' Based upon the foregoing, staff is recommending that the City Council approve first reading of an ordinance amending Chapter 20 of the Chanhassen City Code, the Zoning Ordinance, concerning variances. ATTACHMENTS 1. Ordinance Amendment. 2. City Council minutes dated April 9, 1990. 3. Memo from Paul Krauss dated March 14, 1990, with attachments. 1 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 ' April 4, 1990 APR 05199 ' VIA FACSIMILE TRANSMISSION era OF CHANVIASSEN Mr. Paul Krauss Chanhassen City Hall 690 Coulter Drive, Box 147 Chanhassen, Minnesota 55317 RE: Variances ' Dear Paul: Enclosed please find the revised ordinance you requested concering variances. The only change from previous draft dated 3/2/90 is in Section 5(a) . ' Very truly yours, CAMPBELL, KNUTSON, SCOTT & F , .A. BY: ' Roger N. Knutson RNK:srn Enclosure 1 1 I Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122 i i CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 20 OF THE CHANHASSEN CITY CODE, THE ZONING ORDINANCE, CONCERNING VARIANCES ' THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS: Section 1. Section 20-28(b) (2) of the Chanhassen City Code is amended to read: To hear requests for variances from the provisions of this Chapter which are not made in conjunction with platting, site plan review, conditional use or interim use permit application. Section 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. I Section 3. The Chanhassen City Code is amended by adding Section 20-30 to read: Sec. 20-30. Variance Requests in Conjunction with Platting, Site Plan Review, Conditional Use and Interim Use Permits. I (a) Form; Fee. Appeals and applications for variances from the provisions of this Chapter made in conjunction with platting, site plan review, conditional use and interim use 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. (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 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 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 1 r04/04/90 , 1 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 ' appropriate conditions. (d) Council Action. By majority vote, the City 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 adjacent property. ' (e) Action Without Decision. If no decision is 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 governing the Planning Commission, without further awaiting the Planning Commission's recommendation. Section 4. Section 20-56 of the Chanhassen City Code is amended to read: Sec. 20-56. Generally. A variance from this Chapter may be requested only by the owner of the property or the owner's approved 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 ' 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 Chapter and to protect adjacent property. Section 5. Section 20-58 of the Chanhassen City Code is amended to read: ' Sec. 20-58. General Conditions for Granting. ' 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 surroundings, shape or topography. Reasonable use includes a use made by a majority of other property within five hundred (500) feet of it. The intent of this provision ' -2- I 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 in 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 day of , 1990. ATTEST: ' Don Ashworth, Clerk/Manager Donald J. Chmiel, Mayor i (Published in the Chanhassen Villager on , 1990. ) I -3- Don Ashworth: As we are working with the State on this and engineering, ely guess is it's going to be 60-90 days before actual signs can get up. I mean if Ithere's any question that the property owner is really against this, my guess is that just with previous State approvals saying we can put up the signs and where they'll be located and what not will be at least 60 days. esoluticm $90-47: Councilman Hoyt moved, Councilmen Johnson seconded a resolution establishing a no parkin; sane on aouthbomml Highway 101 on the curve in the area generally utilised by vehicle parked for sale. All voted in favor wad the motion carried. ICBM CRDIRAN + AMIDIENENT '!O EMEND TEE SOBDIVISICK AND 110111113 MINAIICLr 10 REWIRE IRE POSTING CP RELIC INFO[HATICK SIGNS RR NEN IHOVffic arIS MEIN TEIE CITY, riRsT REW/110. ' Paul Krauss: Mr. Mayor, do you want a report on that? That's basically an ordinance amendment that accomplishes what your direction was to us a couple months ago. Mayor Chrniel: Right. That's correct. Any discussion? Councilman Boyt: I think $100.00 is not enough. The signs are costing $250.00. They're going to be up for how long? ' Mayor Oriel: Well the sign goes up and down, up and down. Councilman Boyt: I'm just saying I don't think the life cycle of the sign. Well what I'd like to have is I'd like to have staff review this so the City in the long run isn't putting any n ey into this. The leasing fee for the sign covers our actual cost. Mayor Chmiel: I think what we have to do is run it for a period of time to see and if it's not paying for itself, than we have to do swathing. Any other discussion? Councilman Johnson moved, Comcilwauan Dimler seconded to approve the first reading of Boning Ordinance Afferximent to amend the Subdivision and Zoning Ordinance to require the posting of public information signs for new ' developnents within the City. All voted in favor and the motion carried. ' (ii= niCRiDGMANCE /1/61204ENT ID MOND ARTICLE II, =TICKS 20-56 MRCOC43 20-70 TD FROCEDORES POR TBE ISM CE VARIANCES, FIRST READI1E3. Mayor (Intel: Item 13 has been removed. Is that correct Paul? ' Paul Krauss: Yes. 1 }} . 1 1 54 I , : ) CITYbF 13,,t, ...jr_,:;,/ , ;)1' „...„ _,..,,4,__„,. _ 690 COULTER DRIVE• P.O. BOX 147• CHANHASSEN, MINNESOTA 55317 I vie!a (612) 937-1900• FAX(612) 937-5739 Action by City P.lr*i�is'r"�' MEMORANDUM Eric.., 4, TO: Planning Commission F " x/5!1-/9 — FROM: Paul Krauss; Planning Director aK....., p£' _..a DATE: March 14, 1990 D`�___ ,;;rcii SUBJ: Proposed Amendments to Chapter 20, Article II, Administration I and Enforcement of the City Code Pertaining to Variances While working on various development proposals, two aspects of II the City' s variance procedure have come to staff' s attention as areas where modifications could prove to be useful. These two II areas concern administrative procedures as to who is responsible for reviewing and approving variances while the second is related to the criteria that are used in reviewing variance proposals. According to the current ordinance, wall 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 II brought before the Board, a-number of *hem have been approved directly by the City Council after consideration by the Planning Commission. Y II The Board of Adjustments and Appeals serves an extremely useful 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 the timely and effective review 'of development proposals. Many communities 'divide up the'responsibilities Eor-Approval of ' variances. The Board of Adjustments and Appeals is generally responsible for those variances which are associated with building single family' omes°or. additions, to-t ose homes on single family lots. In many"oftheseticommunties, it is the II Planning Commission and ultimatiely'°the City Council that review . all other variances which may be attached to subdivisions, con- ditional use permits, site plansva and in the near future interim II use permits. In our opinion there are several valid reasons for 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 II based upon a number of considerations. These may include II II Planning Commission March 14, 1990 Page 2 topographic features, surrounding development pattern, desire to avoid other more significant variances, public input, environmen- tal preservation efforts or similar matters. While the Planning 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 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 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 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 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. ' Based upon these considerations, staff is proposing an ordinance amendment that would give the City Council the ultimate authority 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 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 that this revised procedure would facilitate effective and timely review of these matters. 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 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 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 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 Planning Commission March 14, 1990 Page 3 I 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 I 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 I i 1 ) Planning Commission March 14, 1990 Page 4 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 based 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. C. That the purpose of the variation is not based exclusively 1 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 variation will not be detrimental to ' the public welfare or injurious to other land or improvements in the neighborhood in 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 substan- tially diminish or impair property values within the neigh- borhood. ' Staff brought this item before the City Council at their February 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 the proposed as "on-track" and consistent with their intent. ' There appeared to be substantial support for the proposal by most 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 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" . The Council asked that staff provide further definition to avoid arbitrary decisions. 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 provide data to support this finding. 11 Planning Commission I March 14, 1990 Page 5 i 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 I 1. Ordinance Amendment. 2. City Council minutes dated February 26, 1990. 3. Planning Commission minutes dated March 21, 1990. , I 1 1 i ( ) 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 0 519,33 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) . Very truly yours, CAMP: - , ' UTSON, SCOTT CHS, P A. ' BY: 'oger N. Knutson ' RNK:srn Enclosure I Yankee Square Office III • Suite 202 • 3460 Washington Drive • Eagan, MN 55122 I APR-04-1990 10:10 FROM E` BELL, SCOTT & FUCHS TO 9375739 P.03 II CITY OF CHANHASSEN II � CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. ' AN ORDINANCE MENDING CHAPTER 20 OFD NG NHASSNCES 11 CITY CODE, TEE ZONING ORDINANCE, CON THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS: II section 1. Section 20-28(b) (2) of the Chanhassen City Code II is amended to read: To hear requests for variances from the provisions of this Chapter which are not made in conjunction with platting, II site plan review, conditional use or interim use permit application. 4 II Section 2. The caption of Section 20-29 of the Chanhassen City Code is amended to read: Sec. 20-29. Board of Adjustments variance and Appeal I Procedures. Section 3. The Chanhassen City Code is amended by adding II Section 20-30 to read: Sec. 20-30. Variance Re Conjunction Platting, anRview, Conditional Use and Interim II Use Permits. (a) Form; Fee. Appeals and applications for variances II from the provisions of this Chapter made in conjunction with platting, site plan review, conditional use and interim use permits and variance from the subdivision ordinance shall be I 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. II (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 II 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 I 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 II 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 II II 1 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 appropriate conditions. ' (d) Council Action. By majority vote, the City 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 adjacent property. ' (e) Action Without Decision. If no decision is 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 governing the Planning Commission, w4.thout further awaiting the Planning Commission's recommendation. ,. Section 4. Section 20-56 of the Chanhassen City Code is amended to read: Sec. 20-56. Generally. A variance from this Chapter may be requested only by the owner of the property or the owner's approved 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 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 Chapter and to protect adjacent property. Section 5. Section 20-58 of the Chanhassen City Code is amended to read: ' See. 20-58. General Conditions for Granting. 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 surroundings, shape or topography. Reasonable use ' includes a use made by a majority of other property within five hundred (500) feet of it. The intent of this provision -2- I • APR-04-1990 10:12 FROM CAMPBELL, SCOTT & FUCHS- - TO-- _ "r.n :-9s a '.39 P.05 is not to allow a proliferation of variances, but to recognize that in developed neighborhoods pre-existing II standards exist. Variances that blend with these pre- existing standards without departing downward from them meet I this criteria. (b) That the conditions upon which a petition for a variance is based are unique to the parcel of land for which II 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 I exclusively upon a desire to increase the value or income potential of the parcel of land. II(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 I detrimental to the public welfare or injurious to other land or improvements in the neighborhood ith which the parcel of II 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, II or increases the danger of fire, or endanger the public safety or substantially diminish or impair property values II_ . within the neighborhood. Section 6. This ordinance shall be effective immediately I upon its passage and publication. PASSED AND ADOPTED by the Chanhassen City Council this II day of , 1990. ATTEST: II Donald J. II Don Ashworth, Clerk/Manager Chmiel, Mayor II (Published in the Chanhassen Villager on , 1990. ) II II -3- 1 _ city Council Meeting - Feb•-'ary 26, 1990 1_ _ ) q04 Councilman Johnson: Was it published? 10 Councilwoman Dialer: No. We don't have to publish it. . .� Don Ashworth: This, as it appears here in front of you was published to the best of my knowledge. ' Councilman Johnson: So we could take action? Don Ashworth: You could take action if you wanted. Mayor Chmdel: Jim mentioned March 12th so let's go with that. II BOARD OF EQUALIZATION AND REVIEW, SET DATE FOR FINALIZING BOARD ACTION, CITY IMAGER. S 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 think that you're going to have that many people in on either the 15th or the I 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 met 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 I 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 I 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 Manorial Day. I thought we had modified the month of May to first and IIthird? Councilman Hoyt: No, one of them is right at the end of the money. IIMawr C 'iel: The 28th is Memorial Day. How about Tuesday the 29th? Councilwrxran 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. DISCUSSION REGARDING VARIANCE PROCEDURE AND REGULATIONS, PLANNING DIRFX'TOR. Paul Krauss: On several occasions in the pest... Mayor Cruel: Is this brief Paul? ' Paul Krauss: I think the discussion with it might be rather lengthy. ' 62 1 l City Council meeting Ulebruary 26, 1990 -_ } • if Mayor Chndel: I thought there was a lot of thought put into this and I I appreciate your going through it. - Paul Krauss: We're putting this on basically I should add as an informational 1 item, to get some direction from Council. It's not a matter that we've discussed with the Board of Adjustments. I vsentioned it to them tonight and they're interested in it obviously and they're here. Mx have we discussed at the Planning Catmission sare;of tb0 changes we're proposing would affect them as well. Basically we're bringing it to you and if you tell us you don't went us to proceed with it, we'll drop it but it appeared to us in the past that there II was sane desire to have some 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 II 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 care down to one variance for a road grade but that was a variance the Planning Connission and City Council considered in the context of the subdivision. If you just take the variance out II of context and put it before the Board of Adjustments, I don't know that you're giving that project a fair shake. There may be other things that you considered II in developing that recaarendation. Also, there's the natter 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 Carmission. 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 andel: Thank you. I guess I have just one quick question. Roger, what is the status of the variance thing that we discussed safe time ago with same 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. lbw 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 Oriel: Is there anyone lobbying for the previous, for the earlier one? Roger Knutson: Yes. Me. 63 • ',City Council Meting - le.Jury 26, 1990 ) - I Mawr Chmiel: That's why I was asking the question. - - Paul Krauss: There's also a nuber of camrrunities lobbying against it for various reasons. Boger Knutson: The only carsrrent 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 cczmunity. lint 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 ate 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. accept sane 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. Council ran Boyt: I'd like to mention a couple things if I might. Sate 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 1 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 crakes sense. Boy, the desire to have sane kind of reasonable flexibility, that's very tempting. What I find though in sate of your comments here. Reasonable use is further defined as use cap-only made by other properties in the district. Mawr Ordel: What page are you on Bill? - Councilman Boyt: That's page 3, the second line frau 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-confonrring uses can't be perpetuated Iif they burn down or whatever. Are we really gaining flexibility there? Oouncili*an Johnson: It certainly would have helped us clean up Carver Beach. I Paul Krauss: The variance would rot apply to the use of the property. It would apply to standards applied to that property. Carver Beach is a good case in point. If everybody is on a 7,000 square foot lot, you crake the new person to I 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 encourage 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 64 r • City Council Meeting )February 26, 1990 ) well nobody on either side of the sky has side setbacks either so we're really putting this house into one that fits. And it would be nice to have someway to II 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 enftircer,e:t of this Chapter would cause undue hardship. undue hardship means the property cannot be put to reasonable use. Well, to re 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 me sarething 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 Chmiel: Might be. ' Cbuncilran 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 recarirended that it be approved because II it was reasonable to think that they should have a 3 bedroom house with a deck sane as other people had on adjoining lots. I remember Councilman Boyt that you had sane concerns with that theory and there was another method found to approve II 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. Gbuncilnan Boyt: Well somewhere in here, there's two things that happened with II a variance at least. One of them is that we allow son body to rake reasonable use of their property. The other one is, we protect surrounding property owners by giving the 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 cone in and say, any undue hardship for any of these reasons, / maintain that the way A is written right now, anything can pass. Cbunciliman Johnson: I don't like the last sentence of A. Reasonable use is a use commonly made by other properties in the district. Again, look at Carver Beach. That says we're just going to perpetuate those non-complying things. Cbm*monly the sheds are up against the property line so the one we're talking about today, under this would say that's fine. In Garver Beach there are no setbacks. Mayor Chmiel: Yeah, but at that time Jay when they had those right at the property line, it was permitted. Cbuncilnan Johnson: Is it but it's now non-conforming so a new guy could came in and ask to put it right at the property line today where what we should be 65 • City Council Meeting - Fie Eery 26, 1990 - ) I working towards is, when somebody's shed's burned down, you don't rebuild it - - II 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. Q,ur cilran Johnson: Ch yeah. ' ,s Oouncilrran tibrkman: So why fight gnat? icy 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 bringing Carver Beach into compliance. You and I will not be alive when Carver Beach canes into compliance. Nobody will be. If we have a nuclear disaster and it clears out Carver Beach and gets replatted. Councilman Workman: Down on Lake Riley. Skinny little lots. Are they ever IIgoing to be in conformance? Councilman Johnson: Probably not. ICouncilman Workman: In 400 years? Not unless all the houses burn down and they combine the lots. 1 Councilman Johnson: But we need to keep bringing them up... Councilman Workman: I'm not defending this thing to the hilt but we need sane ' discussion on it and maybe tonight's not the night. Mayor Or del: I think what we have to do is have a reasonable way to try to II help and assist people put in some of their basic needs that they want to improve on their particular lot. Councilman Johnson: It has to be an improvement over. In a non-conforming 11 district, which I think we can call several parts of this town as non-conforming districts. The rrajority of the houses in the district are non-conforming... any variance has to be an improvement over the general district. Mayor 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 1 in here but nonetheless there's been a lot of thought. 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 retake this hold to the city setbacks and II I agree with Jay. aren't going to get the 100% down there in Carver Beach 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. ICouncilman Johnson: I've seen improvement in the little time that I've been here. IWillard Johnson: You'll get one like we got down there in take Riley occasionally but I feel we're doing pretty good with what we've got and you're 66 I . • City Council Meeting : iruary 26, 1990 ) • IF just going to have to work each one individually. That's from my experience II being on the Board. I realize same of these people have got a hard situation but we get a 7,000 foot lot, sometimes we tell then 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 saRethody 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 frammme in the $350,000.00 bracket. I called City Hall on it. We've got a loophole in our own orditiancee My neighbor has discussed it and his cousin builds down behind the Catholic Church in Excelsior or Shorewood or whatever it is. Oamcilman Johnson: St. John's. Willard Johnson: Yeah, behind St. John's. He says, look at that lot right on Apple Road or Yosarite. 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 - II 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. Cn the side that this lot I 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 Chxmuiel: Some direction I think Paul is looking for from us. Paul Krauss: I'd like to know if you want us to pursue it? Councilwoman Dimler: Yes, I want you to pursue it. Mayor Chmdel: Yeah. I'd like to see it pursued. At least that's my opinion. ' Councilman Boyt: Sure pointed out same areas that I think are real problem areas with it. 67 Council an Johnson: Yeah. I think it's going to be too loose with sane of this stuff. Councilwoman Dialer: We might want to tighten some up but we do want to give some more breathing roam. 1 Oamciliran Workman moved, Oouncilwaman Diim+1er seconded to adjourn the meeting. All voted in favor and the motion carried. The meeting was adjourned. Submitted by Don Ashworth :t4 City Manager ' Prepared by Nann Cpheim 1 1 1 1 1 1 1 1 1 l 1 .' 1 68 1 Planning Commission Meeting } II March 21, 1990 - Page 35 II Ahrens: Notification of the public is a hard thing to be against. p �. g g st. Emmings: Yeah. I think we should try it. I Erhart: I think it's good too. I think it is going to put a burden on the City that's going to be such a detail in that they tend to fall in cracks II and I'm sure that's what happened in Eden Prairie but with that, would someone like to make a motion? Wildermuth: I'll move that the Planning Commission recommend approval of II the draft ordinance. Ahrens: I'll second it. I Wilderr,nth moved , Ahrens seconded that the Planning Commission recommend ' approval of the Zoning and Subdivision Ordinance Amendments Pertainng to Requiring the Posting of Development Notification Signs. All voted in favor and the motion carried. II 4 PUBLIC HEARING: ZONING ORDINANCE AMENDMENT TO AMEND ARTICLE II, SECTIONS 20-56 THROUGH I 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. Emmings moved , Ellson seconded to close the public hearing. All voted in II favor and the motion carried. The public hearing was closed. Erhart: Alright, Joan do you have any questions? I Ahrens: Not right now. ErFmings: 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. Let's say somebody lived in there but had bought two lots and built a II house. Could they tear their house down, subdivide those lots and build two houses? You see what I'm saying? Krauss: Well what you want to avoid I think, and I think what you're 1 getting at Steve is that you don't want to lower the standard in the neighborhood. You don't want the lowest common denominator be what is Ienforced. 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 middle ground if you will . I Emrings: But would you be able to say no to someone who wanted to do what I just. . . I • ! t Planning Commission Meeting March 21, 1990 - Page 36 11 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 Ian 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 I 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 I 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 I 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. i it Planning Commission Meeting March 21, 1990 - Page 37 I Erhart: Sure. I think the term, the word district and the last word in Al that's the one that's questionable to me. District can mean a big area. 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. Erhart: Okay, I'm missing that. Emmings: The ordinance. Don't look at the staff notes. Look at the ordinance itself. It may be in there but I don't know where. Ahrens: Not in the proposed ordinance. Emmings: But look in the ordinance itself. The language is different that what's in the staff report than what's in the ordinance. Erhart: Oh, is that right? Emmings: Because I looked for some stuff too. . . Ahrens: Yes, 500 feet is in here. 20-58 (a) . 1 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 everybod comes to us when they want a variance and they say well I know Joe Schmoe ' blocks away from here has got the identical situation so I 'm entitled to 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 list? ' Krauss: Yes. Emmings: Is that a 500 foot? , Krauss: Yes. That's why it matches. Emmings: So that kind of fits. 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, yes. The Board is a quasi-judicial body. Erhart: Alright. So the only change here, you're talking about subdivisions? 1 1 Planning Commission Meeting March 21, 1990 - Page 38 Krauss : Subdivisions. .Rezonin s Site plans and I think CUP's when 9 P en 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 Planning Commission t.Jting March 21, 1990 - Page 39 along the lines that we discussed. Ellson: I' ll second it. Emmings moved, Ellson seconded that the Planning Commission recommend approval of Zoning Ordinance Amendment to amend Article II, Sections 20-56' through 20-70 pertaining to procedures for the issuance of variances with 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 leavil 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 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 ahea� 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 tomorroll 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 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 1 combine an evening? Is that an option? 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. 1 Ellson: I'd rather do that. Erhart: Much better . Wildermuth: I' ll be gone next Wednesday. 1 Erhart: I will too. Krauss: Would 5:30 be too early for everybody? &ratings: Are you talking about meeting here for pizza? Krauss: We'll meet here for pizza, subs, whatever. Emmings: What's the menu? Krauss: You want Chinese? Erhart: Let's get to the core of the issue here. '