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1991 08 26BOARD OF ADJUSTMENTS AND APPEALS MINUTES OF AUGUST 26, 1991 MEMBERS PRESENT: Carol Watson, TOm Workman and Don Chmiel. STAFF PRESENT: Kathryn Aanenson, Planner and Paul Krauss, Planning Director. Acting Chair Watson opened the public hearing. A 15 FOOT VARIANCE TO THE REOUIRED 75 FOOT WETLAND SETBACK, LOTS 2969-2980 AND LOTS 3018-3029, CARVER BEACH - 685 CARVER BEACH ROAD, ARNOLD ZACHMAN Kate Aanenson presented the staff report. No comments were received during the public hearing and the applicant was not present. Workman inquired as to how setbacks are measured. This issue was also brought up by acting Chair Watson. The issue was relative specifically to information .in the staff report concerning the adjacent Triple Crown Estates subdivision. Aanenson and Krauss explained that normally variances are computed on a direct line from the nearest point on the structure to the nearest point on the setback or prOperty line. For some reason, which was not known to staff, in Triple Crown Estates, the setback was measured on a line laid out over the ground. Since the ground is not flat in this area and has some terrain, a line measured, on the ground actually measures somewhat longer than a direct line. Thus, the Triple Crown Estate homes actually do have some similar wetland setback variances when measured in the appropriate way. Mayor Chmiel advocated moving forward with the request. Mayor Chmiel moved to approve the variance as per the staff report. Workman seconded the motion. At that point, Councilman Mason in attendance at the meeting, inquired that as a neighbor, he was concerned with the use of the 500 foot standard in the ordinance that allows for the justification of a variance that deviates from ordinance wherein different neighborhood standard exists. He inquired if the use of this standard would adversely impact the neighborhood like Carver Beach. Krauss indicated that the idea of this section of the ordinance was not to allow a deviation below the neighborhood average but to allow flexibility for property owners acknowledging that their neighborhood is somewhat different than a standard. Ail voted in favor of the request. Acting Chair Watson requested that staff ensure that the area under the deck be stabilized with rock or other material to ensure that erosion does not become a problem. Board of Adjustments and Appeals Minutes of August 26, 1991 Page 2 A 17 FOOT SHORELAND SETBACK VARIANCE TO THE REOUIRED 75 FOOT FOR THE PURPOSE OF CONSTRUCTING A TWO TERRACED DECK, LOT 2, BLOCK 1, SATHRE'S ADDITION - 6605 HORSESHOE CURVE. RON HARVIEUX Aanenson presented the staff report. Peter Beck, attorney with Larkin, Hoffman Law Firm, spoke on behalf of the applicant. He indicated that the applicant obtained a building permit and scheduled inspections, consistent with his understanding of the process. The city inspectors erred, in his opinion, in approving the footings. He then commented on the letter from the DNR that was contained within the staff report, indicating that the DNR reserved the right to sue the city if a variance were to be approved since it is~ in violation of DNR Shoreland Setback Standards. He indicated that his reading of the law states that the DNR performs and advisory service and the city has the sole authority to issue variances to the Shoreland Ordinance. City Attorney Knutson confirmed this understanding. Mr. Beck continued that his belief, the hardship is there due to the city's mistakes and that there is a substantial investment. Furthermore, he believed that no adverse visual impact would exist on the lake. He then passed out photos of other similar setback situations located around Lotus Lake. He suggested that the deck be allowed to remain with no other water oriented accessory structures allowed on the property, as proposes a compromise. Krauss indicated that accessory structures such as those suggested by Mr. Beck on riparian lots such as these are all obligated to meet the 75 foot setback standard. Thus, the compromise offered by Beck did not seem to result in any net improvement for the city. Mayor Chmiel indicated that two wrongs.do not make a right in this instance and that permits for the full 3 decks, were never granted. He questioned the DNR letter to the city. He did not want to see- the city obligated to defend the property owner if the variance was approved and the DNR did decide to take legal action. Workman stated that he would prefer to reject the request but could not due to an error in the city's review of the application. Mr. Harvieux stated that he never intended to be misleading and that inspections were requested and approved and he attempted to comply with city standards. He was never informed of a problem until it was too late and the deck was in place. Acting Chair Watson inquired about the DNR. She stated a belief that the threat contained in the letter was out of character. Board of Adjustments and Appeals Minutes of August 26, 1991 Page 3 Workman moved approval of the 17 foot variance to allow the 3 decks to remain contingent upon obtaining a building permit and making any necessary corrections, deck not to be used until final inspection is granted, no portion of the deck located within the setback is to be expanded in the future, no water oriented use accessory buildings to be located in the 75 foot setback area and also condition upon the applicant agreeing in writing to bear all responsibility for defending against any action that may be taken by the DNR to contest the variance. Chmiel seconded the motion. Workman and Chmiel voted in favor of the motion and Watson was opposed. The item will be appealed to the City Council on September 9, 1991. C. W. FREEMAN FOR A VARIANCE TO ALLOW A SECOND SUMMER RESIDENCE TO BE LOCATED ON PROPERTY ZONED RSF AND LOCATED ON LOTS 8-10 AND A PORTION OF LOT 7, SUNSET HILL, 7431 DOGWOOD ROAD. Aanenson gave the staff report. Acting Chair Watson indicated that she had received a letter from Janet M. Quist in support of the action tonight. Aanenson indicated that she had received a call from a party that did not wish to give his name, who indicated that he had signed the Jessup petition in favor of this request. However, the caller indicated that he was not in fact in favor of it and claims to have signed the petition under some duress. The applicant described his request. He indicated that he originally had four homes and that the guest house had been on the site for 43 years. He stated that it was in family ownership and he was going to retire with his wife. to the new home. He stated that they needed the old cottage solely for family gatherings. He indicated that this is not the first guest house on the lake and that a garage located on the adjacent property had been used in a guest house in the past, although it no longer was in use. Mr. Freeman acknowledged that he did sign the building permit prepared by staff which contained the condition that the guest house either be removed or made uninhabitable prior to obtaining a certificate of occupancy. However, he implied that he was forced to sign to obtain his building permit. He believed that his septic system was over built and fully capable of accommodating the two units. Martin Jones, a neighbor, testified that the cabin was there since before he moved in the neighborhood in 1950 and he spoke in support of keeping it. Workman questioned about the precedence setting value if this were to be approved. Board of Adjustments and Appeals Minutes of August 26, 1991 Page 4 Krauss indicated that the precedent of allowing two homes on a lot could potentially cause problems elsewhere. Mayor Chmiel questioned the street right-of-way for Dogwood vis-a- vis the location of the home. He inquired as to whether or not the city could put a notice in the chain-of-title that would notify a new owner that you would be obligated to make the dwelling uninhabitable. City Attorney Knutson indicated that this was not possible. If a variance were to be approved, the variance runs with the property and therefore would not cease to be valid simply because property ownership changed hands. In the future, someone could challenge the imposition of conditions on the variance and would probably prevail. The Board decided to table action on the variance request and directed the City Attorney to develop an ordinance amendment that would allow for the location of a guest home on a RSF l°t. They indicated to the applicant that they would consider such an ordinance change in future but did not guarantee that it would be adopted and that Mr. Freeman would be obligated to abide by whatever decision is taken in the future. Krauss inquired as to how to administer this request since it was originally our intent not to issue the certificate of occupancy for the new home until the guest house either removed or rendered uninhabitable. After some discussion it was agreed that the City Attorney would draft a document to be signed bythe applicant which would obligate him to abide by whatever conditions are imposed in the future.