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1991 06 10CHANHASSEN BOARD OF ADJUSTMENT AND APPEALS REGULAR MEETING JUNE 10, 1991 Chairman Johnson called the meeting to order at 7:00 MEMBERS PRESENT: Willarct Johnson, Carol Watson and Tom Workman STAFF PRESENT: Paul Krauss, Planning Director; Sharmin Al-Jarl, P.].anner I, and Roger Knutson, City Attorney PUBLIC HEARING: - A 5,727 SQUARE FOOT LOT AREA VARIANCE FOR THE CONSTRUCTION OF A SINGLE FAMILY RESIDENCE, LOTS 2275 THRU 2279,_CARVER BEACH, LESSLEY KAKACH. Sharmin A1--Jaff presented the staff report. Paul W. Oberg: ...in July and August of 1988. Nothing has"-changed except for the new variance criteria which was adopted in 1990. And as you'll note from the staff report and the Minutes of the August 8, 1988 Council meeting~ at that time Mayor Hamilton and Councilman Goring expressed the opinion that the construction efa house on the property would improve the neighborhood. Again, nothing has c~hanged. A house on the 5 involved lots would still improve the neighborhood. This is the province ef the 8card of Adjustments and Appeals. Apart from the legalities, the construction efa house wiJ~.[ resu]~t in the best aesthetic use of the property. Based upon these facts~ the staff recommended approval of the requested variance in it's staff report dated July 19, 1988. The action en the requested variance was tab].ed by the Board of Adjustments at it's meeting on July 25~ 1988 until it could be confirmed the lots were illegally separate "lot" ef record. Maybe the quote should be "lot of record" In the memo dated August 2, Je Ann Olsen reported that there had been an illegal lot split. When Mrs~ Coffee purchased Lots 75 te 2279 on June 13~ 1986 without city approval. Based upon this memo and contrary to the opinion ef the people on the Planning Cornmission for the Board of Adjustments at that time, both the 8card of' Adjustments and City Council denied the variance request. We have attempted without success to determine the basis for the conclusion that there was an illegal lot split. We know ef no Chanhassen, Carver County or Minnesota law that makes the purchase of 'these 5 lots in 1986~ and focus on 1986 because that's when it occurred~ 'There have been 2 changes in the Zoning Ordinances since that time. lhere was netting at the time in June, 1986 when this was done that made this an ii. legal let split. lhis is an unfounded opinion of Jo Ann Olsen which has been perpetuated by 'the present landowner. As far as I can tei l~ the only basis for it is the definition of the term let ef record but she bases it undoubtedly en the 1986 ].et of record definition which was not effective until December 9 of 1986. Some 5 or 6 months after this occurred, lhe only applicable statutory authority, and ~ apologize because ~ don~t want te argue law but I have to argue law because the aesthetics ef the thing were hands down in favor ef the variance. The decisions that were acted upon in 1986 were based upon what we considered to be errors ef law. You have two Statutes~ or one ordinance and eno statute. Minnesota Statute, Section 462.358 Subd. 4{b} is the only Statute which prohibites transfer of property and that says that unless you subdivide lots and plat them you can't oonvey~ a-fter 1980, lets smaller than 5 acres and 500 feet of frontage without the 8oard of Adjustment and Appeals June 10, 1991 - Page 2 approval of the municipality~ This does not apply to this property because the lots were platted. Then along at 5 months after this transfer occurred~ Chanhassen Ordinance 20-?2 was adopted in December of 1986. It became effective in February of 1987. February 19~ 1987 and that states that contiguous lots owned by a single owner are to be treated as one parcel for minimum lot size determination or if they all front on the same street. Had we transferred these lots after February of i987~ this ordinance would have been effected. We transferred them sene 8 er 9 months prier to that time. 'The facts with respect to this property are that a man by the name of James Wegler purchased the house in 1959~ The house is to the east of the lots with respect to which the variance is requested and it. sits on about 16,000 square feet. Subsequently the property te the west~ which is the subject of this variance~ was purchased tax forfeit by the prior owner of the Wegler house and in 1962 he transferred this property to Wegler. I don't know how you pronounce your name but the Planner made a statement which is net correct and has never been correct. And that is~ she said that this was always one tax parcel. It has never been a one tax parcel. It is net presently a one tax parcel. At the time that Wegler purchased, it was two separate tax parcels and it's been two separate tax parcels at all times after that down to the present time~ Se that statement is perhaps significant or not significant to this issue but it's not accurate. On April 15 of 1988~ as the Planner states~ the variance was granted for 843 Woodhill. The lot elevation, it had substantial lot elevation and drainage problems. The total square footage was 8~422 square feet. We're talking about. 9,273 here. Ne don~t argue with that subdivision because the house~ as it sits~ if you leek at it~ is a substantial improvement to the neighborhood. We also den~t argue with the 8,000 square feet house that sits at 6961Nez Pefco that was built on the 8,000 square feet. lot te the west of the Woodhill let following the fire that destroyed the Nez Pefco house. ©uite a number of years passed after the fire on the Nez Pefco house and the woman who owned it~ I believe her name was Mrs. Hilger~ apparently was not willing to sell to the people te the east. She held out. lhey got a variance and then she get a variance. We don't argue with those variances because if you leek at the neighborheed~ those houses fit there and the house that we proposed to construct on the northeast corner of Lone Eagle and Nez Pefco will fit there and will substantially improve the neighborhood, lhe two variances that were approved in 1988 measure the comparative let size that's appropriate in a neighborhood. If I ceuid for a minute touch on the ordinances. What Chanhassen had from 1972 until 1986 was a Zoning Ordinance that was effective until some 5 or 6 months after this property was purchased. There was no provision as to contiguous lots and single ownership. That became effective on February 19th of 1987~ about 8 months after this let was purchased. There is no prevision in that ordinance based upon self created hardship, lhat came around I believe in 1990. 1987, I~m sorry. Two ordinances were passed in 1986~ One was 20-72 which in effect says that unless you have lots that meet~ when divided~ all of the subdivision or ali. of the improvement requirements for the area~ it's treated se long as it's in single ownership as eno parcel~ It can't be divided. Then you have Ordinance 3-1-3 which says that no variance shall be based upon a self created hardship, lhat became effective in December of 1986. Again~ after this occurred. The next amendment of the Zoning Board of Adjustment and Appeals 3uno 10, 1991-- Page~ o Ordinance occurred in Z990 and that is No. 20-58 and that brings in the question of comparables within a 500 foot radius and it also creates the 5 measures of determining whether or not a variance can be gr. anted. There's always the measures determining whether or not variances can be granted and several of them have remained constant from the ~72 ordinance down 'bo the present. The ~99~ staff report that we're considering tonight merely repeats t. he August, 1988 report. In July the planning staff said they recommended approval. The Planning Board of Adjustments asked Jo Ann Olsen to determine whether or not 'these were separate lots. She came back on August 2 of 1988. Changed her position 180 degrees and said they were not separate lots. Therefore, the variance was inappropriate. Not based on the quality of the variance but based upon her interpretation of the 'Liming of ordinances which in our opinion was erroneous. As it relates to your action, forgetting ali. of the gobbely goop with respect to the legalities which really should be the subject efa discussion between the Attorney for the City of Chanhassen and me. In my opinion that position or the function of the Board of Adjustments is to look to see whether the variance is appropriate. You should look to the neighborhood. Look to comparable properties, lhe area in Carver Beach is effectively separated~ in my opinion, by Nez Pefco Avenue. To the east ef Nez Pefco you've got the cottages, rebuilt cottages and homes that go back many years before the 1972 ordinance. To tine west of Nez Pefco, still as the planner says, within the 500 foot area, you have a new area. While parts of Carver Beach cross Nez Perce, by and large you have a modern style lots. The lots- in Carver Beach were all 20 x 100 feet. Willard Johnson' You'll have to excuse me. We're going to have to rush you along... Paul W. Oberg: The 1972 ordinance reflects Carver Beach as it is. No one argues with this or that variance and that new construction will improve the neighborhood, lhe staff is, in my opinion, off the trolley based on their perceived illegal let split on which they have no basis in law or in fact for this conclusion and this information is furnished to my associate by 30 Ann Olsen who says there's no, there's nothing that she can cite other than an agreement ~ith Carver County that makes this an illegal let split. What they would like to do is ignore what is good for the neighborhood, lhis is followed up by the legal opinion I think of Mr. Knutson that fails to take into consideration the dates when the transfers occurred and when the applicable ordinances were adopted. He apparently doesn't understand that the ownership of 22F5 to 79 by Lessley Kakach is not in common ownership with the property to the east. lhank you. Willard Johnson' Anybody else here. Mike Mason: I'm Mike Mason. I'm at 833 Woodhill Drive. There are some of us in the neighborhood that would beg to differ with the aesthetics of the homes that they've put in. While it's a very nice house at 843 and very nice neighbors, many trees have been completed destroyed te put that home on that let. Se in terms of aesthetics, ~ know there are people in sy neighborhood that would disagree with that. .,. 8card of Adjustment and Appeals ~Tune 10, 1991 - Page 4 Willard Johnson: Are you all in agreement with Mr. Mason? Shelby G.,agnon : Yes. We're residents of Lone Eagle Drive. We're at 825 and 855 and we're both in agreement. Robert Na_sh : Incidentally I'm not a lawyer so I don't have the law discussion but as it relates to lot size, I ~ould be directly to the south of the lot that we're discussing tonight and I have approximately 22~000 square feet which...and I don't, know about the rest of the lots in the neighborhood but I know... In terms of how the area has been divided into 20 x 100 lots really haven't affected the size of the lots that have been built eh. Take that by 1 ~000 square feet and improve en that would certainly not be within the standards that at one time were... Carol Watson: Willard and I were both here for the 1988. Roger Knutson: First the self created hardship rule is a rule created by Statute. It's in Chapter 462 of the Statutes. It lens predates anything that happened here se that rule's been around for a long, long time. The City ordinances that were changed in 1986 merely mirrored, repeated what was in the statutes se if someone wanted te go to one source to find out what the law was, they could basically do that. Se that's that. I also think you ought to focus on the issue that before someone's entitled to a variance there has to be undue hardship. Undue hardship means there the property has ne reasonable use. This property is acting as part ef the yard for an existing yard. This property is acting as a driveway on it that's serving the existing house. You have to look and ask yourself whether that is a reasonable use of the property. Willard Johnson: Paul, did you have... Paul Krauss: No. I was just trying to get the names and addresses. Robert Nash : I've got one more comment. Lone Eagle Road is a dead end ,. road. There are currently 4 homes on there. Nez Pefco is a busy thru street that accesses a lot ef the Carver Beach development. Another concern is that number one, from Long Eagle Drive's standpoint~ it's going to add to a sort of a bottleneck problem as it is~ With ~ homes it serves that well. I den~t know if the variance talks about whether it would be a Nez Pefco address or a Long Eagle address but either way it's not in terms of traffic. It's not the type of !ocatien that would be conducive tea family dwelling, at least in my opinion. Paul W. Oberg: Wouldn't the variance~ would that have to change? I knew that there are setbacks. Carol Watson: 5ust the proposal would... Roger Knutson: I would like to suggest due to 'the lateness of the hour and the Council meeting start, ins in a couple minutes~ we cut to the importance ef your item. That if you decide to approve or decide to deny, that rather than doing that this evening, you direct myself and staff to prepare a Board of Adjustment and ,Appeals June 10~ 1991 .... Page 5 formal Findings of Fact and bring back to your next meeting explaining your decision... Torn Workman: You guys have been here and the only thing I wanted to say was to Mr. Oberg. You. asked the question, is there any...and ~ guess Z qu. estion Nhet. her that's by virtue or by hocus pocus of all the ordinances and so there's a...Roger finds that out before... Carol Watson: I'll make a motion to close the public hearing. Torn Workman: Second. Watson moved, Workman seconded to close the public hearing. Ali voted in favor and the motion carried. The public hearing was closed. Carol Watson: I think we need those Findings of Fact from 1988 when we did this before. ]i see no reason to change the opinion... Roger Knutson: Mr. Oberg...t.o me that it's a self created hardship and per haps there's... Carel Watsen: When ceuld this be gotten together with... Roger Knutsen: When's yeur next meeting? Care]. Watsen: We can meet whenever. Reger Knutson: Two weeks. Carol Watsen: Does that give you eneugh time? Roger Knutson: Oh yes. Tern Wer kman: I move to table. Carol Watson: Second. Workman moved, Watson seconded to table action on the lot area variance and direct the City Attorney to prepare Findings of Fact in this matter. All voted in favor and the motion carried. APPROVAL OF MINUIE$: Workman moved. Watson seconded to approve 'the Minutes of the Board of Adjustment and Appeals dated May 20, 1991 as presented. All voted in favor and the motion carried. Workman moved, Watson seconded to adjourn the meeting. All voted in favor and the motion carried. /he meeting ~as adjourned at 7:30 p.m.. Submitted by Paul Krauss Planning Director Prepared by Harm Opheim