Loading...
HomeMy WebLinkAbout1999 07-15 PCP • PLANNING COMMISSION AGENDA CITY OF BROOKLYN CENTER July 15, 1999 REGULAR SESSION 1. Call to Order: 7:30 p.m. 2. Roll Call 3. Approval of Minutes - May 27, 1999 4. Chairperson's Explanation The Planning Commission is an advisory body. One of the Commission's functions is to hold public hearings. In the matters concerned in these hearings, the Commission makes recommendations to the City Council. The City Council makes all final decisions in these matters. • 5. Mark& Katarina Peschel 99006 Request for Variance from the Critical Area Interim Development Regulations to allow a building setback less than 100' from the ordinary high water mark of the Mississippi River at 6830 Willow Lane. 6. Other Business 7. Adjournment Application Filed On 7-1-99 • City Council Action Should Be Taken By 8-30-99(60 Days) Planning Commission Information Sheet Application No. 99006 Applicant: Mark&Katarina Peschel Location: 6830 Willow Lane Request: Variance The applicants are seeking a variance from the Critical Area Interim Development Regulations to construct a solarium addition on the rear of their home at 6830 Willow Lane. The variance request is from the 100 ft. setback from the normal high water mark of the Mississippi River. The property in question is zoned RI (single family residence)and is located on the east side of Willow Lane in the 6800 block. It is bounded on the east by the Mississippi River; on north and south by single family homes; and on the west by Willow Lane with single family homes located on the opposite side of that street. The Peschel property is within the State designated Mississippi River Critical Area Corridor District established in 1976 and is subject to the standard and guidelines contained in the Interim • Development Regulations until the City adopts its own regulations for this area. Such regulations will be forthcoming as a revised Critical Area Plan is completed and an implementing ordinance is adopted. The interim regulations require that all structures be placed no less than 100 ft. from the normal or ordinary high water mark of the river and no less than 40 ft. from all blufflines. The objectives of these dimensional standards are to maintain the aesthetic integrity and natural environment,to reduce the effect of poorly planned shoreline and bluffline development, and to prevent soil erosion. The structure which is to be approximately 11 ft. x 14 ft. will be setback at least 40 ft. from the Mississippi River bluffline which is at an 830 ft. elevation. The ordinary high water mark is, as best as we can determine, 800.8 ft. and the addition would be approximately 77 ft. inland from that mark at the closet point. The interim regulations have been in place since at least 1976. The City has been responsible for the enforcement of the regulations but has done so by only requiring a 40 ft. building setback in areas along the river where there is a bluffline and using the 100 ft. ordinary high water setback in areas where there is no bluffline. The Peschel's home, which was built in 1979,was built using this manor of setback interpretation, thus the reason that the existing building is closer than 100 ft. to the normal or ordinary high water mark. 7-15-99 Page 1 • • s Mr. Mark Peschel approached the City in November and December of 1998 inquiring about a • permit for a solarium addition that would also have encroached upon the 40 ft. bluffline setback. He was advised that the addition should be set back 40 ft. from the bluffline which has been determined to be at the 830 ft. elevation. He was directed to the Department of Natural Resources (DNR)regarding questions as to the verification of the bluffline. He made such an inquiry in the spring of this year and area hydrologist, Tom Hovey reviewed the site on April 13th and responded to Mr. Peschel in a May 3, 1999 letter advising him that for the solarium to be constructed as proposed variances from the 40 ft. bluffline set back md from the 100 ft. ordinary high water mark setback would have to be granted by the City of Brooklyn Center. Mr. Peschel has had discussions with the City staff and has revised his plan so as to meet the 40 ft. bluffline setback and request a variance from the 100 ft. ordinary high water mark setback because no addition could be made whatsoever to the home and meet that setback. I have been advised, since Mr. Peschel's conversation with the DNR,that the proper interpretation of the Interim Development Regulations requires that both the bluffline and ordinary high water mark setbacks are to be applied unless a variance is granted by the City. Mr. William Hull, an attorney representing the Peschels,has provided written comments relative to their variance request and has provided a survey drawing showing the existing home,the proposed addition with the bluffline and ordinary high water mark elevations as well as photographs showing an outline of the proposed addition as well as views from and towards the river. Mr. Hull states his belief that the applicant's proposal will not adversely affect the stated objectives of the dimensional standards and criteria of the Interim Development Regulations which are again, to maintain the aesthetic integrity and natural environment,to reduce the effect of poorly planned shoreline and bluffline development, and to prevent soil erosion. He notes the addition would be built at an elevation of 832 ft. which is 32 ft. above the ordinary high water mark of the river and would be built inland 77 ft. from this mark as well. The 40 ft. bluffline setback will be met and the addition will not be visible from the river because of surrounding trees,bushes and evergreens. He also notes that the addition will have less impact on the river than already existing neighboring structures that extend closer to the river than 40 ft. from the bluffline or 100 ft. from the ordinary high water mark. Attached for the Planning Commission's review is a copy of the Standards and Procedures for Zoning Ordinance Variances from the City of Brooklyn Center and information relating to the statutory prerequisites provided to us from the DNR relating to Minnesota Statutes 462.357, subdivision 6. Both of these items authorize variances that are in keeping with the spirit and intent of the ordinance and regulations . The ordinance standards and the statutory prerequisites are for the most part the same. City Ordinance procedures state that the Board of Adjustments and Appeals (Planning Commission)may recommend, and the City Council may grant,variances from the literal 7-15-99 Page 2 provisions of the ordinance in instances where their strict enforcement would cause undue • hardship because of circumstances unique and distinctive to the individual property under consideration. The Board will not recommend and the City Council will in no case permit as a variance any use that is not permitted under the ordinance in the district where the affected persons land is located. The variance standards are as follows: (A)Because of the particular physical surroundings, shape, or topographical conditions of the specific parcels of land involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out. (B) The conditions upon which the application for a variance is based are unique to the parcel of land for which the variance is sought, and are not common, generally to other property within the same zoning classification. (C) The alleged hardship is related to the requirements of this ordinance and has not been created by any persons presently or formerly having an interest in the parcel of land. (D) 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. The applicants written arguments can be found on page 3 of the submitted letter where they address each of the specific standards,A-D. They believe the enforcement of the strict letter of the 100 ft. setback would pose a particular hardship on the owner and note the City's past interpretation of the bluffline and ordinary high water mark setbacks as being one or the other. • They believe to now impose the 100 ft. setback as well as the 40 ft. setback would impose more restrictive requirements on the applicants use of the property than on neighboring properties. They also note that the conditions upon which the variance request are based are unique to the Peschel property, are related to requirements of the setbacks applicable to the property and were not created by the Peschel's or previous owners. They also believe that because the bluffline is covered with trees,bushes and brush that the objectives of the setback can be accomplished by only enforcing the bluffline setback. They also note that the granting of the variance will, in their opinion,not be detrimental to the public welfare or injurious to other land in the vicinity. They add that the addition will have no impact on the shoreline and will not even be visible from the river. They state that neighboring properties encroach far more significantly on the shoreline and views of the river than does the proposed Peschel addition. In evaluating the variance proposal the Commission must make its decision based on the. Standards for Variance provided. As the staff sees this matter,the key issue is whether or not the granting of the variance will adversely affect the stated objectives for which dimensional standards and criteria have been established in the Interim Development Regulations and that the granting of the variance would be in keeping with the spirit and intent of the ordinance. The stated objectives of the Interim Development Regulations are that the setback requirements are to maintain the aesthetic integrity and natural environment,to reduce the effect of poorly planned shoreline and bluffline development and to prevent soil erosion. We do not see the granting of 7-15-99 Page 3 this variance to adversely affect these stated objectives. A hardship can be considered if the • Peschel's cannot use their property in a manner consistent with other development along the river. Although it has been pointed out that the City's interpretation of the Interim Development Regulations require that both the bluffline and ordinary high water mark setbacks are to be applied it seems reasonable that the bluffline setback standard in this particular case is the most important. Granting the variance will not alter the essential character of the locality given the location of other structures and their impact on the river in this immediate neighborhood. The location of the solarium addition will not alter the character of the Mississippi River corridor as it will be appropriately setback from the established bluffline and will, for the most part, not be visible from the river. All in all we do believe the variance request is reasonable and is in keeping with the spirit and intent of the ordinance and the rules and regulations and therefore to not grant the variance would be considered a hardship to the Peschel's. A public hearing has been scheduled and notices of the Planning Commission's consideration of this variance request have been sent. RECOMMENDATION It is recommended that the Planning Commission recommend approval of the variance request to allow a variance from the 100 ft. ordinary high water mark setback contained in the Interim Development Regulations for the Mississippi Critical Area on the basis that the standards for • granting a dimensional variance are met,that the granting of the variance is in keeping with the spirit and intent of the ordinance and regulations and, furthermore,that the granting of the variance will not adversely affect the stated objectives of the dimensional standards of the Interim Development Regulations which are to maintain the aesthetic integrity and natural environment,to reduce the effect of poorly planned shoreline and bluffline development and to prevent soil erosion. 7-15-99 Page 4 . . � .� . oil son M31111111111 IN row m son- ■1■ ■1121-11111• �: : ME-4 oil rm MIN m is m IMMI IM IM . . . 0 IN minim v • :■ rum � �� � �� 11t � �I y ids - pf MINNF�r9 Minnesota Department of Natural Resources o y DNR Waters-Metro Region, 1200 Warner Road, St. Paul, MN 55106-6793 a owe Telephone: (651) 772-7910 Fax: (651) 772-7977 °FNATUaP� May 3, 1999 Mark Peschel 6830 Willow Lane Brooklyn Center, MN 55430 RE: SETBACK VARIANCE, MISSISSIPPI RIVER CRITICAL AREA CORRIDOR, 6830 WILLOW LANE, BROOKLYN CENTER, BENNEPIN COUNTY Dear Mr. Peschel• This site is within the state-designated Mississippi River Critical Area Corridor District, _ established in 1976, and the Mississippi National River and Recreation Area(MNRRA), a unit of the National Park System, established in 1988. The Department of Natural Resources works with local units of government to review and assist with ordinance development, implement the plan and ordinance, and review all developments within the Corridor which require a public hearing or discretionary action. SIn the case of Brooklyn Center, no regulations have yet been adopted to comply with the minimum standards and guidelines for the Critical Area. Under this situation, local units of government shall grant a development permit only if the development is specifically pernutted by the Interim Development Regulations, including. Wherever there is a conflict between the Interim Development Regulations and existing laws or ordinances, the more restrictive provision shall apply. [IDR A. 3. b.] All structures and accessory uses or appurtenances of residential development shall be subject to the dimensional standards and criteria in section F of these Interim Development Regulations [IDR C.3.]. The objectives of dimensional standards and criteria are: to maintain the aesthetic integrity and natural environment, to reduce the effect of poorly planted shoreline and bluffline development, and to prevent soil erosion. Grading and filling provisions [IDR E. 1.]. No clear cutting within 40 feet landward from blufllines. [IDR E. 2.]. All new structures shall meet the following minimum standards: the structure shall be placed no less than 100 feet from the normal highwater mark (ordinary high water level), and no less than 40 feet from all blufflines [IDR F. 4.]. DNR Information: 651-296-6157 1-888-646-6367 • TTY: 651-296-5484 • 1-800-657-3929 An Equal Opportunity Employer I>r Printed on Recycled Paper Containing a Who Values Diversity ��/r Minimum of 1o%Post-consumer Waste Mr. Mark Peschel Page 2 May 3, 1999 New structures and additions to existing structures shall be limited to a maximum height of 35 feet. [IDR F. 5. a.] In response to the City's and your request, I met with you on-site on April 13, 1999 and verified the location of the bluff and made some measurements. The existing house, at the southeast corner, is 51 feet from the bluflline. The proposed addition to the house is 36.5 feet from the bluflline. Using a drawing from our files and our recent measurements, it appears that the existing house is approximately 87 feet from the ordinary high water level. The proposed addition will extend to approximately 72.5 feet from the ordinary high water level of the Mississippi River. It appears the development as proposed would not comply with the above regulations and would require two or more approved variances from the above Interim Development Regulations. Variances may only be granted by the City when in conformance with the hardship prerequisites of MN Statutes, Section 462.357 and those of the Critical Area Interim Development Regulations I. 3. If you intend to proceed with a development proposal that does not comply with the Critical Area regulations, the City's Zoning Staff should be able to give you more information. We appreciate the opportunity to assist with bluflline determination. Thank you for complying with the regulations to protect and preserve the Mississippi River Corridor. Please feel free to call if you have further questions. Sincerely, Tom Hovey Area Hydrologist cc: Ron Warren, City of Brooklyn Center✓ Sandy Fecht, Critical Area/MNRRA Hydrologist • State of Minnesota - DNR Waters Comments Pages: 1 Date: 5-10-99 To: Ron Warren From: Sandy Fecht Critical Area/MNRRA Hydrologist cc: Fax: 651-296-5939 Comments: I have reviewed the Interim Development Regulations again and have confirmed my interpretation that an OHW variance will be needed. No bluffline variance will be needed if the structure is placed 40 feet from the bluffline. I emphasize the following from the IDR, with interpretation in italics: All structures and accessory uses or appurtenances of residential development shall be subject to the dimensional standards and criteria in section F of these Interim Development Regulations [IDR C.3.]. The word, "Standards", is plural, so all standards are to be complied with. All required setbacks shall be applicable to each bluffline proceeding landward from the river. All new structures shall meet the following minimum standards: the structure shall be placed no less than 100 feet from the normal highwater mark(ordinary high water level),and no less than 40 feet from all blufflines UDR F. 4.]. Since the word, "and, " was used instead of"or, " both dimensional standards must be met, and met for all blufflines. If any dimensional standard cannot be met, then a variance is needed for each one which is not met. Let me know if my explanation is still weak. Thanks for the opportunity to confirm. COLEMAN, HULL & VAN VuET A PROFESSIONAL LIMITED LIABILITY PARTNERSHIP ATTORNEYS AT LAW WTHERINE M. BERGENTHAL* MARCIA B. HAFFMANS MICHAEL P. COATY* 8500 NORMANDALE LAKE BOULEVARD ERIC R. HEIBERG JEFFREY W. COLEMAN SUITE 2110 TIMOTHY R. DUNCAN MINNEAPOLIS,MINNESOTA 55437 WILLIAM D. HULL (612) 841-0001 WILLEM F. VAN VLIET(1924- 1996) FAx(612) 841-0041 *ALSO ADMITTED IN WISCONSIN Direct Dial: (612) 841-0201 wdhull @chw.com July 1, 1999 HAND DELIVERED Board of Adjustments and Appeals City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, Minnesota 55430 Attention: Ron Warren RE: Request for Variance—Mark Peschel 6830 Willow Lane Brooklyn Center,MN 55430 Dear Members of the Board of Adjustments and Appeals: Our law firm represents Mark Peschel. Mr. Peschel is a resident of Brooklyn Center residing with his wife at 6830 Willow Lane. Mr. Peschel's property is located on the Mississippi River. He is requesting a setback variance to allow him to construct a solarium on the back of his house. The solarium will be constructed primarily of glass and will be 11 feet wide. The property is subject to a 40-foot setback from the bluff line and a 100-foot setback from the normal high watermark. The proposed addition will be 40 feet from the bluff line,but only approximately 77 feet from the normal high watermark. The existing home is currently approximately 88 feet from the normal high watermark. Mr. Peschel is requesting a variance from the 100-foot setback from the normal high watermark. Enclosed as Exhibit A is a survey drawing showing the existing home, the proposed addition,bluff lines, and water elevation. Also enclosed as Exhibits B1 through B4 are four photographs showing the'existing home, an outline of the proposed addition, the view looking east towards the river, and a view looking west from an island located in the river toward the subject property. June 28, 1999 Page 2 • I. A VARIANCE MAY BE GRANTED IF IT IS IN KEEPING WITH SPIRIT AND INTENT OF THE ORDINANCE. Minnesota Statutes § 462.357, subd. (6), and the City of Brooklyn Center's "Standards and Procedures for Zoning Ordinance Variances,"both authorize variances from zoning ordinances, "that are in keeping with the spirit and intent of the ordinance." Such is the case here. The objectives of the setback requirements are to maintain the aesthetic integrity and natural environment,to reduce the effect of poorly planned shoreline and bluff line development, and to prevent soil erosion. Mr. Peschel's proposed addition will not adversely affect any of those objectives. The proposed addition will be built at an elevation of 832 feet, 32 feet above the normal high watermark. It will be built 77 feet inland from the normal high watermark. It will be built on what is now a sodded portion of Mr. Peschel's backyard and will be 40 feet inland from the bluff line. Consequently, it will not contribute to any soil erosion. It is consistent with the setback's objective to reduce the effect of poorly planned shoreline development. This is a one-story addition to a two-story structure that is • already in place. Many of the properties in the vicinity of Mr. Peschel's property already extend beyond the 40-foot bluff line setback and the 100 foot high watermark setback. It is not a new development,but rather a minor addition to an existing structure. Finally,the addition will meet the objective of maintaining the aesthetic integrity and natural environment of the Mississippi River. As can be seen from the enclosed photographs, Mr. Peschel's backyard is surrounded by trees,bushes and evergreens. Consequently, the new addition will not be visible from the river. Since the proposed addition will be 32 feet above the river elevation and 77 feet inland from the shoreline, it will have no negative impact upon the aesthetic integrity and natural environment of the shoreline. II. THE PROPOSED ADDITION MEETS THE REQUIREMENTS FOR GRANTING VARIANCES. Minnesota Statutes § 462.357, subd. (6), and the City of Brooklyn Center's "Standards and Procedures for Zoning Ordinance Variances"both permit variances under the following circumstances: (A) Because of the particular physical surroundings, shape, or topographical conditions of the specific parcels of land involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the • strict letter of the regulations were to be carried out. June 28, 1999 Page 3 • (B) The conditions upon which the application for a variance is based are unique to the parcel of land for which the variance is based are unique to the parcel of land for which the variance is sought, and are not common, generally, to other property within the same zoning classification. (C) The alleged hardship is related to the requirements of this ordinance and has not been created by any persons presently or formerly having an interest in the parcel of land. (D) 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. Mr. Peschel's variance request meets all of these criteria. A. Enforcement of the strict letter of the 100-foot setback requirement would impose a particular hardship on the owner. In the past,the City has interpreted the bluff line and high water setbacks as an either/or proposition. In other words, the City has in the past required that only one of the setbacks be met. To require both setbacks to be met in Mr. Peschel's case would impose more restrictive requirements on the use of his property than have been imposed on neighboring properties. In fact, several properties in the vicinity have structures that impact far more significantly on the river than Mr. Peschel's proposed addition. B and C. The conditions upon which this variance request are based are " unique to Mr. Peschel's property, are related to requirements of the setbacks applicable to his property, and were not created by Mr. Peschel or any previous owner. Because Mr. Peschel's property has a bluff line that is covered with trees,bushes and brush,the objectives of the setbacks can be accomplished by enforcing only the bluff line setback. Furthermore,because of the dimensions of Mr. Peschel's property, enforcing the strict requirement of the high water setback and the 35-foot street setback,would render his property virtually unusable. D. The granting of the variance will not be detrimental to the public welfare or injurious to other land in the vicinity. As explained earlier in this letter,Mr. Peschel's proposed addition will have no impact on the shoreline and will not even be visible from the river. In addition, neighboring properties encroach far more significantly on the shoreline and views from the river, than Mr. Peschel's proposed addition. In summary,Mr. Peschel's request for a variance is consistent with the purpose and intent of the bluff line and high water setbacks,will have no negative impact on the shoreline or views from the river, is consistent with the City's historical application of the • bluff line and high water setbacks, and will have far less impact on the river than structures on other properties in the vicinity. I have personally spoken with Tom Hovey, June 28, 1999 Page 4 • area hydrologist for the DNR,who has visited the property. Mr. Hovey told me he has no objection to the proposed variance, and that the DNR would not challenge the City's decision if a variance were granted. For all of these reasons,we respectfully request that Mr. Peschel's variance request be granted. Very truly yours, E L &VAN VLIET,PLLP William D. Hull WDH/vk Enclosures cc: Mr. Mark Peschel • • JUN-07-99 11 :40 PROM:AXEL H OHMAN INC ID:6121061 3{x247 PAGE 11/16 I 9S _.Alamo r • I . . �GaSQ >tas•s� 8do.,�Jrf/� Jr� l 1111 -/,Z S. 7*- p t � �J� 4P rr / / r I t ♦ f iir.�` ;.. .'.�� .1� �...',:_�;. .—"`fig �•.. \:�. I I r. !• 1 , oW It .� .__— - 1 !r totes . �// '-� _ .M !{' ` \ 1 1 1 I I ( f t!,�, Q- t I,t•` � I O J `�f 1 /� i� �+ jn, _ .' .._, r -1�� •;� 1 �.1 ( i i ; ;�r ��,_� � � � �y.• .. - �f '111 I + ; ' 3; I Il I I ' t i r � gig , 3C1 WOx.+r v t 1I •i ' t= lr �i t � I � � .�/ 1 � � o• II 1; �I 1 I � II ' Jit1 11o' J I � 111 1 to a ��r•t' 'sus - - �3 � ' ��� 63' , on Om � 'A Li _ r k VL w x •Ix .. � s t H' - I • •` 1 2 g• • III � , 1 � .. v � .� •��,µ i_�a�� , � 1. ..� Y5. a y-� • 't �• t y� r. . �;tip!►, : . Sr WOO �x �• �'�` •t }'�� �. �.. • + � � .�t* r � tiff T +,Y �. ` , a• �J:. r • f.3,» • � �:t`, �• -_� •�'w,���l`� ��•'ii' 1'YI'�t�� ^, �� /s'J.�Y- 4+ ��f{' } •.j�•�'.p, 3 ��.z Y .. � ���Z�,t�KL a�'�Sr �h��•t.�••c+,c"���G'�i.�75�t' ..:'� � ��,� � � '�� t �• t`. gat} - t` ::� "� .;.'.•.tip r RAT P y • `t �♦ � y' IIN. a - 3 . i r l r�14, - .j. Yf �. "s c 1� `•s ' , Il Irl '���1 III ' I 1 '.r.►�• �� r�i.i 1 +� ►� Ij�! �rJ�rlrr / 1 <'1 , � a P—;j if _ i 11j: F `',1�1 �� 1 �jy r f�d I( t;., pi 71 t, rK } ( C; i4is��l I j � TV Ail JI �I Y�� � � y�u 41I� it Il:� T S �4Z >✓!. . r. � I� aat. ,�{� Al43f(���,�� 01 '��low n � `��.�rtC •�Fir1 ,Y S� j ,��1��1 NN F)�l 1 i �}►1. Ii g� � � ty �{� � f}I rA JJ , tf +''[1 p ..�' ?µYS ,/8� 1� ,1 110 1 0P All I # hTYWYN Nil Kul vist" MINI gag1 11 S y I_ 1p �1t Ia .a"� � t ��'��i'z{��s'll� rb�•1. �{I i! �t� BFI '(!tt'3Cf� / •�>, 'z r / g li .111 `, I�41rta l Vail, i polo ,ry MOST. x • _ S� 1�1 �' � II�I� �. ,.f ,a i j STANDARDS AND PROCEDURES FOR ZONING ORDINANCE VARIANCES • CITY OF BROOKLYN CENTER 6301 SHINGLE CREEK PARKWAY Onyone contemplating a request for a variance from the Zoning Ordinance should consult with the Planning staff, prior to submitting an Application to the Board of Adjustments and Appeals, for the purposes of familiarization with applicable ordinance standards and evaluation of the particular circumstances. A prospective applicant will provide documents and information, as requested by the Secretary, to the Board of Adjustments and Appeals or to the City Council. An application must be submitted fourteen (14) days prior to the regular meeting of the Board. In instances where the strict enforcement of the literal provisions of this zoning ordinance would cause undue hardship because of circumstances unique and distinctive to an individual property under consideration, the City Council will have the power to grant variances, in keeping with the spirit and intent of this ordinance. The provisions of this ordinance, considered in conjunction with the unique and distinctive circumstances affecting the property, must be the proximate cause of the hardship; circumstances caused by the property owner or his predecessor in title will not constitute sufficient justification to grant a variance. The Board of Adjustments and Appeals may recommend and the City Council may grant variances from the literal provisions of this ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique and distinctive to the individual property under consideration. However, the Board will not recommend and the City Council will in no case permit as a variance any use that is not permitted under this ordinance in the district where the affected person's land is located. A riance may be granted by the City Council after demonstration by evidence that all of the following alifications are met: (A) Because of the particular physical surroundings, shape, or topographical conditions of the specific parcels of land involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out. (B) The conditions upon which the application for a variance is based are unique to the parcel of land for which the variance is based are unique to the parcel of land for which the variance is sought, and are not common, generally, to other property within the same zoning classification. (C) The alleged hardship is related to the requirements of this ordinance and has not been created by any persons presently or formerly having an interest in the parcel of land. (D) 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.* The Board of Adjustments and Appeals may recommend and the City Council may impose conditions and restrictions in the granting of variances so as to insure compliance with the provisions of this ordinance and with the spirit and intent of the Comprehensive Plan and to protect adjacent properties. Copies of the Zoning Ordinance may be obtained from the Administrative Office. questions should be directed to the Community Development Department, at (612 569-3330. p ) Standards and Procedures for Zoning Ordinance Variances Revised 2-95 The Board of Zoning Adjustment should solicit testimony on all of the following variance prerequisites from MN Statutes. We ask the Board to consider the statutory prerequisites and posed questions (shown in italics) regarding the Critical Area River Corridor in their final decision. According to the courts, the applicant has a heavy burden of proof to show that all of the prerequisites have been met. In addition to the statewide statutory requirements, the Board also needs to follow variance requirements in their ordinance. The Board may impose conditions in the granting of variances to ensure compliance and protect adjacent properties. The City Council acting as a Board of Appeals and Adjustments has the following statutory powers with respect to variances and the zoning ordinance from MN Statutes, section 462.357, subd. 6: 1) Variances shall only be granted when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. Is this proposal the best design alternative to protecting the Mississippi River and preventing and mitigating irreversible damage to this resource? Have the purposes established for the Critical Area been met? 2) Strict enforcement would cause undue hardship because of circumstances unique to the individual property. What unique circumstances of the property compel the proposal design so that variances are required? • 3) Undue hardship means the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls. Can a reasonable use, such as single-family residential use, be achieved by adherence to the conditions allowed by the ordinance? Courts have said that a board of adjustment is not required to approve a variance unless to deny it would mean that the property cannot be put to any reasonable use. 4) Undue hardship means the plight of the landowner is due to circumstances unique to the property not created by the landowner. Court cases have shown that problems peculiar to the present owners or their individual or economic desires do not satisfy the prerequisite because they don't relate to the property itself. What is unique about the actual land of the individual property? If the problem is common to a number of properties in the area or along the river, such as blufflines, then it is not unique to the subject property. In the case of expansions, was the structure built originally right at the setback line and the owners.now desire to expand over the setback line, thereby self-creating their own hardship? Another factor to consider is whether the landowner bought the property after the effective date of the ordinance provision from which the variance is sought and had access to knowledge and information about ordinance requirements prior to designing the project. 5) Undue hardship means the variance, if granted,will not alter the essential character of the ilocality. What is the locality like - setbacks, uses, size and types of structures of neighboring properties? Are the values and the essential character that caused the Mississippi River Corridor to be designated a Critical Area and a National River and Recreation Area being altered? Is the essential character detrimentally altered if structures are placed on top of a bluff or encroach into the bluffsetback? 6) Economic considerations alone shall not constitute an undue hardship if a reasonable use of the property exists under the terms of the ordinance. Can a reasonable use be achieved through compliance with the ordinance, even though it may not be the highest economic or profitable use? 7) No variance shall be granted that would permit any use that is prohibited in this ordinance. Is this a use allowed by the ordinance? 8) Undue hardship also includes, but is not limited to, inadequate access to direct sunlight for solar energy systems. Also from Interim Development Regulations-I. 3. b. b. A dimension variance may be granted only when the following findings are made: (1) the strict enforcement of the setback or height restrictions, or lot size or line of signt will result in unnecessary hardship. "Hardship" as used in the consideration of a dimension variance means that the property in question cannot be put to a reasonable use under the dimension provisions of these interim devleopment regulations; (2) there are exceptional circumstances unique to the property that were not created by a landowner after April 25, 1975; (3) the dimension variance does not allow any used that is not a compatible use in the land use district in which the property is located; (4) the dimension variance will not alter the essential character of the locality as established by these interim development regulations; (5) the dimension variance would not be contrary to the intent of the order. •