HomeMy WebLinkAboutBoard of Adjustments and Appeals - 06/17/1976 UNAPPROVED
MINUTES
BOARD OF APPEALS AND ADJUSTIAENTS
Thursday, June 17,, 1976 7:30 P.M., City Hall
Members Present: chairman James Wedlund
James Cardinal
Thomas Gebulla
Donald Sorensen
Members Absent: Joan Meyers
Staff Present: Wayne Sanders, Building Official
Others Present: Mr. & Mrs. D. Underdahl, Alan C. Thiel,
William J. Brooks III,- Mr. & Mrs. D. Edstrom,
Mr. & Mrs. P. Forster, Mrs. 0. S. McCormick,
B. Hamilton, Ray Welter, Jr., Jim Ostenson,
Donald W. Bossart,, and Dr. Rolf Nielsen
Chairman Wedlund called the meeting to order at 7:35 P.M.
I. Approval of Minutes of Mgj 202 1226,
• Sorensen moved to request that we continue the approval of Minutes of meeting
of May 20, 1976 until next meeting. Cebulla seconded, motion carried
unanimously.
II. DeForest D. Underdahl, 4532 - 33rd Ave, So. gpj,6s.�11
Chairman Wedlund spoke to continuation of hearing from May 20, 1976 meeting
on variance request from the 5 acre minimum requirement on lot size to
allow construction on a lot of approximately 1 acre with rural zoning classi-
fication and also request for variance on same lot to allow a building to be
constructed with a side yard setback of 35 feet instead of the required 50 ft.
as stated in the City of Eden Prairie Ordinance no. 135. Property description
Tract B. R.L.S. 756. He listed all pertinent information on hand and asked
for any additional information to be considered.
Attorney Alan C. Thiel., representhg the Underdahls, spoke to the background info-
mation and stated that they felt, as the facts indicate according to the City's
basic treatment of the matter, the variance should be granted. He continued that
his basis for this conclusion was that at the time 11r. Underdahl signed the pur-
chase agreement, it was contingent on receiving a building permit. he spoke-to,
the granting of variances in similiar cases by the City in the past.
Several cases were cited by Attorney Thiel - McCurry vs. Young - 1969- Pierce vs.
Edina; to which Sorensen responded. The Mankato and Lowry cases werW also dis-
cussed.
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Board of Appeals and Adjustments - 2 - June 17, 1976
Wedlund referred to Section 3 of the Ordinance, and asked whether Mr. Underdahl
was aware of the rural zoning. Underdahl responded that he was not, and that the
City Attorneys opinion was received first.
Sorensen re-stated history of the property in question, and asked for additions and
corrections. Underdahl agreed that the facts stated by Sorenson were historically
correct.
Wedlund said he had looked into the case, walked the property etc., and considering
the fact that the entire lot does not meet one dimension of our zoning requirements
for rural zoning, he felt that the minuses far outweighed the pluses.
Wedlund asked for additional comments from the opposition.
Mr. Dean Edstrom, 10133 Eden Prairie Rd., introduced the people who had signed the
petition opposing the granting of the variances. He said he didn't feel it was
necessary to go into the legal points as cited by Thiel, because of the difference
between Mpls. and Eden Prairie ordinances and the cases mentioned were not appro-
priate to this case, and the policies set forth in Ordinance 135 are very clearly
stated.
Edstrom, commenting on opinion given by City Attorney Perbix, said he did not like
to be in the position of criticizing another attorney's opinion without his presence.
He said he had written an opinion of his own, before Perbix's opinion was made
available, and commented that it was not organized to meet the points brought out by
Perbix's opinion but could meet it in substance. He continued that he had sent a
copy of his opinion to the City Manager, and would like to hand out copies to the
Board, and requested that it be put into the record.
There was discussion as to whether the "grandfather clause" would apply to this
case. Thiel felt it should apply when the property was subdivided with the "blessings"
of the City.
Sorensen questioned whether the subdividing was even known to take place.
Mr. Donald W. Bossart, 10065 Eden Prairie Rd., inquired whether the information
on similiar cases of subdivisions was available. Sorensen referred to Land Division
List, but felt it was not complete enough.
MOTION 1: Cardinal moved, in view of the findings, that basically the request for
variance is way out of compliance with the Zoning Ordinance and that the side yard
setback requirements are not met, therefore, the request for variance be denied.
Cebulla seconded, motion carried unanimously.
Chairman Wedlund informed Underdahl of his rights to appeal the decision to the
City Council or challenge the decision in a court of Law.
Sorensen suggested the addition of the findings into the Motion, as the content of
the Motion would be the only information that would be considered in a Court.
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Board of Appeals and Adjustments - 3 - June 17, 1976
Wedlund listed his findings as following: 1. rural zoning factor. 2. .Felt it
would be special consideration to Underdahl if approved. 3. No sewer or water-
drainage problems. 1,. Underdahl should have been aware of this zoning factor
before purchase.(Sec. 2 of our Bylaws) 5. Setting of precedent-any other of the
neighbors would have the right to divide their property and sell it. 6. Heavy
opposition by neighbors.
Cebulla put forth his findings as: 1. size of lot(l .acre vs. 5 acres). 2. side
yard setback not adequate. 3. At the time of purchase of property, it was public
knowledge that the Ordinance governs, in spite of Attorney's opinion. /+. Finan-
cial relief was offered the petitioners and he did not avail himself of it.
5. Lack of proportional hardship to the family.
Cardinal expressed his findings as following: We are besought by a petitioner to
grant a variance for a point, that seems to be a small point. He felt that if
people have a problem with the Ordinance, they should have recourse to the Law,
and does not feel we should make an exception, especially such broad exceptions
such as are in this case. He continued that he feels strongly that everyone
should be able to use their land the way they want, but the request is for a sub-
stantial variance, and that the evidence has to be very heavy in favor of the
variance, which he does not see in this case.
MOTION Sorensen moved that the Motion be reconsidered for purposes of in-
• cluding findings of the Board, with the exception of "opposition of neighbors"
and the "financial relief offers". Cebulla seconded, motion carried unanimously.
&110_N_3.*L Sorensen moved to amend Motion 1 to include findings as listed above,,
with the exception of "opposition of pei ors" and "financial relief offers".
Cebulla seconded, motion carried unanimo&s y.
Sorensen said he had difficulty with the matter, and that it appears to be -&
zoning action of rural to another classification, and that the Board does not have
that power.
III. Hustad Development Corp. 12750 Pioneer Trail, Eden Prairie, Mn,
Wedlund spoke to the continuation of this request from meeting of May 20, 1976,
fo:b ia variance on Lot 9, Block 2, Creekwood 2nd Addition (9551 Woodridge Circle)
to allow a 15 foot setback from the street instead of the required 30 foot setback.
Mr. Jim Ostenson, representative of the Hustad Development Corp.., explained that
this allowance of a 151 setback along Woodridge Circle would give them more flexi-
bility.
Sorensen spoke to the City's policy of encouraging the building of houses to front
out on the least travelled roadway. He asked what the reason for re-orienting the
house in this manner, and whether it was for topographic reasons.
Ostenson responded that the lot does slope toward Woodridge Circle, and that it is
more condusive to front on Woodridge Drive.
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Board of Appeals and Adjustments - 4 - June 17, 1976
Sorensen inquired as to the degree of the slope and whether there was any
need to take down trees. Ostenson said the slope was approximately 15%9
and that no trees were involved. He added that it would not sit right with
Lot 10 and would end up with an additional cut in the driveway, and that from
an asthetic point regarding the other houses, they would prefer fronting the
house on Woodridge Drive.
Sorensen expressed his opinion that this should have been acted upon at the
time of platting, rather than coming back for a variance. He added that he
has expressed this to the Board before.
Wedlund was unclear of the reason for the variance. Ostenson explained that
the pr
oblem is that after the two setbacks on each side, we are left with 45",
with our typical houses having 701 or so.
In response to Ostenson's reply that'over 40% is developed in this area,
Wedlund quoted the Ordinance as reading that if over 40% is developed, the
setback must equal the average setback in the development.
Sorensen said the Ordinance may apply to previous existing setbacks and was
put in as a grandfather clause. He said in the old Ordinance., a 50t setback
was required and was put in so that everyone would have to keep it at a 501
setback.
Wedlund asked for additional comments. None were submitted.
MOTIONt Whereas it would seem more feasible to geometrical configuration to
place house parallel to and facing the general course of the dead end street,
Woodridge Circle, and whereas it would seem more feasible to provide egress
and ingress to the lot from the dead-end Woodridge Circle route rather than
the potentially more heavily trafficked Woodridge Drive, and whereas there
seems to be no clearly defined hardship alleviated by the requested variance,
Cebulla moved that the petition be denied. Cardinal seconded.
Cardinal was concerned whether new buyer could appeal to have a house built this
way without strapping him for another year by denial of this variance. Sorensen
responded that a zoning decision rather than variance decision must have a year
'-Ptween appeals.
ADDITION TO MOTION: Wedlund requested adding to the motion, "Provided* however,
if an applicant can produce evidence which would negate the findings of this Boardv
for the Board would be willing to hear their application within a year or any
other time period. Cardinal agreed to the addition. A-,-vote was taken and the
motion carried unanimously.
Chairman Wedlund called for a ten minute break. The meeting resumed at 9:15 P.M..
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Board of Appeals and Adjustments — 5 - June 17, 1976
IV, Bernard Hamilton, 9870 Franlo Road, Eden Prairie. Minn.
Wedlund spoke to the continuation of the variance from May 20, 1976. reauested
to permit a variance from the 50 foot side yard setback requirement and the
50 foot rear yard setback requirement to allow a building setback of 25 feet on
one side and 25 feet at the rear of the building. Property located at the NE
corner of Mitchell and Research Road,, with rural zoning.
Wedlund :said '.1 that he was unclear as to why Mr. Hamilton was on the Agenda,
when this reauest had been denied at the last meeting, because of a question
of the five acre limitation. He sympathized with the situation but felt it
was beyond the power of the Board to re-zone land, and he suggested Hamilton
appear before the City Council.
Hamilton responded he had intended to appeal the decision on the five acre
lot point, and was told a decision had been made.
Sanders referred to the last Council Minutes where resolution was passed
authorizing Sanders to get opinion from the City 'Attorney, who informed him
that it was a buildable lot and that a permit could be issued. The land
division had been approved by the Council.
There was considerable discussion regarding this decision, and most of the
Board members felt they should have been advised to any action that was taken
by the Council.
MOTION: Cardinal moved to table request until the next meeting, and in the mean-
time, request the Council to clarify our position on this situation. Motion died
for lack of a second.
MOTION: Cardinal moved that the Board of Appeals refer this matter back to the
Council for the decision of the Council, at the earliest possible time for the
following reasons:, 1. No appeal of our decision to deny. 2. Improper delega-
tion of the appeal to a Staff person. 3. This Board has not been provided any
legal basis for legal subdivision of -this property. 4. It does not appear that
there is any proper notice or hearing being held in regard to possible subdivisions
for re-zoning. Cebulla seconded, motion carried, with Sorensen abstaining.
The Board was concerned with Hamiltonts options at this point, and Wedlund stated
that he felt it was very unfair that Hamilton had been held up since time i4as.so
important :in his case.
V. Eugene R. Reilly. 1014 West Excelsior Ave., Hopkins., Minn,
Mr. Reilly spoke to his request for variance from 751 side and front yard setback,,
as required under Ordinance #135 for I-General zoning to allow construction of build-
ing with setbacks as shown on survey by Schoel & Madson, Dated March 28, 1976.
Sanders said I-General is similiar to 1-5, except that they can have outside storage.
Reilly explained that the land coverage was about 24-25", with railroad tracks on
• '0
both sides and another building that has been there a long time. he said that
basically, he wants to add on to the building, and that he will naturally comply with
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Board of Appeals and Adjustments - 6 - June 17, 1976
requirement for ornate finish and outside shrubs etc. for asthetic purposes.
Wedlund asked whether this property meets standards for parking space. Sanders
explained that this plan does not show screening or parking, and that Reilly will
have to provide plans for these considerations.
Wedlund asked if the Board allowed him to build this building, would he be will-
ing to move parking from the front to the rear. Reilly responded that he pre-
fers to keep parking in the front for invitees.
Wedlund suggested that his property would be improved by eliminating parking in
front and the inclusion of shrubbery etc..
Reilly explained ' that he would put in a blacktopped 701 strip for parking, in
response to Cardinals question on whether he would blacktop the area.
Discussion took place regarding this point. Cardinal said he felt it was impor-
tant in our consideration of what we are looking at, that it is not affecting
any neighbors., with railroad tracks on each side.
Sorensen spoke to section 16-2 of the Ordinance, which restricted site area and
use. He said its intention was to limit non-conforming uses and prohibit enlarge-
ment.
• Sanders, responding to Wedlund's reauest for his feeling-on the issue, said that
he felt some conclusion could be drawn up., and that this person should be allowed
to do something with his property.
Cebulla suggested possibility that exists in geometry of the building, making the
variance of less magnitude. He asked whether this building can be built?
MOTION: Cebulla moved to table this until these two questions can be resolved.
The motion died for lack of a second.
Sorensen suggested, in reference to 16.2 section, site area could be dwelling unit.,
non-conforming use could be taken out, and if this can be done, we are left with
configuration and variance.
Alternatives in configurations were discussed, as was turning radius, with 60 feet
needed.
Cebulla asked whether Reilly had any strong objections to these alternatives.
Reilly responded that he prefers it the original way, but will consider the other
alternatives.
MTIO : Cebulla moved to table the matter until the next scheduled meeting, because
of the many options available to the petitioner on the geometrical lay of the build-
ing and because of the number of questions raised at this meeting, and which would
give the petitioner ample time to prepare his schematic plan.
• Ray Welter Jr., 10844 Blossom Road, Eden Prairie. Minn.
Wedlund spoke to the request for variance from the 5 acre mininun lot size in
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Board of Appeals and Adjustments - 7 - June 17, 1976
rural zoning district allowing a land division creating a 3� acre lot. He
asked Welter to present his case.
Welter said his proposal meets all of the requirements, except for this one,
and that he is buying this property with �the intention of building a house
and for gardening purposes. He continued that there is a sewer problem, and
that-'a manhole had not been put in on his side of the road, and the cost to
hook up under the road would be tremendous.
Sanders asked how far away he was from the main interceptor. Welter res-
ponded that his land was higher up, and that he would have to hook up under
the road. He added that he is paying assessments, regardless.
Sorensen asked if he were presented with the engineering study. Welter said
he was not, but he could quote from it.
Sorensen felt this was a policy situation, what constitures a variance and
what constitutes a re-zoning.
Welter expressed his dissatisfaction with the Purgatory Creek Study.
Wedlund felt that preserving the Creek was a legitimate concern of the City.
Sorensen added that the policies of the Study are conceptual and there are no
plans for where trails are going to go etc.. Fie said that technically, we do
not have the power to re-zone property and is technically what we would have
to do. He did not believe we could continue this case, because implementation
of the Purgatory Creek Study, in his opinion, would not be accomplished within
60 days.
MOTION; Cardinal moved to deny the petition on the findings that the Ordinance
requires five acres and the request for variance is too much for us to consider
as a variance and would essentially ,ripe out the Ordinance. Cebulla seconded,
motion carried unanimously.
Cardinal commented that he did not feel that this kind of case should be before
this Board and if too much to consider.
Cebulla felt that since the only element was financial consideration, because
-''Jelter could only afford to buy the 3 acres, that it was not in the scope of
this Board to consider economics of petitioners.
Wedlund added that if we grant this petition, we would be setting a precept for
this and any future Board.
Welter asked whether it was zoned five acres because of no sewer and water.
Wedlund responded that this is one part of it. He added that he felt we would
be granting special privileges if we granted this variance, because the reason
you are requesting this variance is because you cannot buy five acres.
Cebulla called the question.
Wedlund informed Welter that he did have the right to appeal to the Council or
challenge the decision in a Court of Law.
Cebulla moved to adjourn at 11:30 P.-M. Cardinal seconded, motion carried unanimously.
Submitted by; Donna Stanley, Recording Secretary