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HomeMy WebLinkAboutBoard of Adjustments and Appeals - 05/20/1976 UNAPPROVED • MINUTES BOARD OF APPEALS AND ADJUSTMENTS Thursday, May 20, 1976 7:30 P.M., City Hall Members Present: Chairman James Wedlund James Cardinal Thomas Cebulla Joan Meyers Donald Sorensen Members Absent: None Staff Presents Wayne Sanders, Building Official I. Approval of Minutes of previous meeting Pg. 2, pars. 5, sent. 1, Delete "not", add "now". " 4, " 2, " 4, Add "and" after "available". Meyers moved to approve Minutes of March 18, 1976, with the two corrections. Cebulla seconded, motion carried, with Wedlund and Sorensen abstaining, T, Robert H. Mason, Inc.,, 14201 Excelsior Blvd., Minnetonka, Minn. Chairman Wedlund spoke to the request for variance from 30 foot re- quired front yard setback to allow 25 foot setback distance at one point of garage, the property being located in Lot 5, Block 6, Westwind Addition in the Preserve (8685 Westwind Circle). Mr. Mason was asked to present his posi- tion. Mason stated that his house, as presently planned, would be located on a cul-de-sac, and that the way the road is designed the house will have to be a crackerbox size or a two-story home. He added that he had talked to his next door neighbors and theydId not have any objections. Chairman Wedlund asked whether anyone present had any contention with the re- quest. None was brought forth. Mason continued that the 10 foot setback for a garage was approved three years ago in the Westwir3l area. Wedlund commented, after checking the point, that it is really jutting to the 25 ft. mark only at one point. Mason said the Northmark II has the variance for 25 feet on a cul-de-sac. He added that the home is the same as the model of Northmark II and is a very nice home. Meyers questioned the measurements being made on the diagonal in the front and rear yard and wondered' why they are not made straight out. Sanders explained that they always work at'right angles in determining measure. ments and that this would indicate the closest point. Unapproved Board of Appeals and Adjustments -2- May 20, 1976 • Robert H. Mason. Inc., . . . Minn, (conttd) MOTION: Cebulla moved that the request of the two variances-251 instead of 301, and 19.21 instead of 20' be approved, because of the unusual shape of the lot and circumstances; because of the subjectts attempt to place the house in best utilization of the lot; and because of minimum hardship that would be im- posed on the neighbors. Cardinal seconded, motion carried unanimously. II. DeForest D. Underdahl. 4532 - 33rd Avenue So., Minneapolis, Minn.. Chairman Wedlund spoke to the request for variance from the 5 acre minimum re- quirement on lot size to allow construction on a lot of approximately 1 acre with rural zoning classification 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 re- quired 50 feet as stated in the City of Eden Prairie Ordinance No. 135, on proper- ty described as Tract B. R.L.S. 756. Wedlund asked Mr. Underdahl, owner of the property, what his intentions were and how many people were interested in this particular peice of land. The parties present that had a concern in the property were Mr. & Mrs. Dean Edstrom, Mr. Jack Heschler, of Doherty, Rumble & Butler., representing the opposition, Mrs. 0. S. 111cCormick, and Mr. Donald W. Bossart. :Mr. Russell A. Sorenson, repre- sented - the Underdahls. Board member Sorensen asked when the land was severed off to smaller peices. Mrs. McCormick responded that when she bought the land, it was five acres, then it was changed to * acres for Dr. Moore, then Brubecks back in 1957-58. Sorensen conmented that a number of parcels were involved-A, perhaps B, C, D, and E and that all of this was done before Ordinance in 1959, after which it was put back in 5 acre tracts. He added that under the terms of our Ordinance, according to the City Attorney, it is considered a plat-any subdivision of our land is con- sidered a plat. Underdahl was asked whether the City Attorney had rendered an opinion on this, and he responded that the opinion had been rendered. Mr. Dean Edstrom, 10133 Eden Prairie Road, addressed the Board, and submitted petition by the residents of the area who opposed the request. He said that Dr. Neilsen and Mr. Jack Provo were also opposed to the matter, but were unable to attend the meeting. He spoke to the history of this tract, with the first R.L.S. (655) being created which enabled the building of their house in situated site, and the second R.L.S. 756 created in 1958. He said its purpose was to create the other parcels and to add a property to the site on which Dr. Moore was to build his house. He continued with the amounts of land and when they were acquired by remainder of residents. He added that the concern the residents have is that there are large parcels of land in this area, and they feel that granting a variance is way out of keeping with what has been done in the past, and that the Ordinance should be enforced as it is. They did not feel it was a small or minor variance that was being; requested, and that it did not relate to the esthetics of their property. Unapproved Board of Appeals and Adjustments -3- May 20, 1976 41 Mr. Don Bossart, 10065 Eden Prairie Rd., commented that when Ordinance 135 was adopted, considerable effort was put into it, and urged the Board to strongly consider the existing Law in its decision. He added that all of the existing homes comply with the setback requirements of the Ordinance, and that the total width of the Underdahl property wasn't wide enough to comply with setback re- quirements on both sides. Mrs. Edstrom voiced her opinion that even though the Underdahl lot was an acre, it was long and narrow and quite close to our houses. She said that no sewers are projected for a long time and that they are concerned with over-population. She requested that two studies on soil findings for their area be put into the records. (Henn. Cty. Soil Survey and Bluff & River Valley Open Space Stud_yJ These show that the soil is porous and has a high percolating ratep with high pollution of wells and lakes. She added that it was not a question of meeting the Ordinance as far as septic tanks are concerned, but it would be a health hazard to the residents. Attorney Jack Heschler spoke to what he considered the legal issues, R.L.S. and plat interpretation, and the fact that this has happened before according to City Attorney Perbix. He said that the plat doesnot conform now, but pre-dated the Ordinance, and added that this is your chance to decide the issue. He continued that their view is, at the time the Ordinance came into being the ownership was all in one person, and that it became an unbuildable lot when it was split in violation of the Ordinance. He emphasized that there are no phy- sical conditions that call for variances. Underdahl said that he needs the variances because the Ordinance does not allow building on this site. Attorney Heschler spoke to the point that he did not agree that a R.L.S. is the same thing as a plat, and that historically the preparation of an R.L.S. was a casual affair and that policy judgements are different in a plat. He said that setback variances and 5 acre variances are in the terms of the statue where there are unnecessary financial hardships. He added that granting of variances does not apply to "use regulations" here. He asked why this owner should be allowed to use the property that is different than any other owner of one acre and feels this is a special privilege and spot zoning and considers it illegal. Edstrom said that back in 1973 when Underdahl had acquired their parcel, we talked to them about eliminating this problem and made them a proposition, which was re- fused because they did not think the Ordinance applied. He added that in 1975 he informed them they would be subject to the enforcement of the City and an agree- ment was made with the Underdahls and their Attorney that we would buy them out, in excess of their cost, taxes, etc., and a contract was drawn up. They turned down this offer. Attorney Sorenson, representing the Underdahls, commented that regarding the flowage underground, there is no way of knowing where it will go once it gets underground and did not feel it was an affirmative health hazard and that they had adequate information. He continued that part of the reason the lot is so narrow is that the Underdahls were prevailed upon to sell 20 feet for a solution at that time. He felt that 20 feet would have made a difference, and it involves the question of being able to use their land. He said they would not have pur- chased the property if a building permit were unattainable and they secured Unapproved Board of Appeals and Adjustments -4- May 20, 1976 • advice from the City Attorney, and there was agreement to give them a building permit. Cardinal asked whether they had written approval. Attorney Sorenson responded that no written approval, but verbal. He felt that people have been mislead, and the land has been sold by the 22-1 and 5 acres and asked what the difference was. He felt it would make no sense if it weren't for the fact that the homes are on smaller tracts all around, and felt the City should allow these adjustments to be made. He quoted City Attorney Perbix as saying this would not be the first time it has been done. He added that 150r on each side does not make for a crowded area. He said that they do have a substantial investment in the property. Underdahl said he had talked to Sanders and was told about the clause, and it would be null and void if we could get a building permit on that property, so they decided to hold out for the property. Sanders commented that he did have a meeting with Underdahl and it has happened before on a piece of land that is platted, and it could be used this way. Board member Sorensen sympathized with the situation, but stated what a City employee,'says can not bind the City to what this employee says. He said that no City official can authorize a violation of its Ordinance, regardless. In referring to the road, or parcel "C", Sorensen questioned Mrs. McCormick whether the road was in existence prior to the time any subdivisions were made. Pars. McCormick responded that Dr. Moore bought his parcel in 1957 and there was no road there, and she used Eden Prairie Road to get into her yard. Board member Sorensen spoke to Attorney Heschler regarding his statement or agreement that our Ordinance precludes regulations based upon "use regulations". He said there is another legitimate interpretation, and directed attention to the Minnesota State Statues, where "use" may be used in a broader sense. He said that you cannot change "use regulations" from "resident" to "industry,"or "commercial" to industry" etc. land on that type of regulations. Sorensen, addressing Underdahl, asked whether he was represented by an Attorney when completing Purchase Agreement from Edina Realty and whether he received the "title opinion". Underdahl responded affirmative to both questions. Sorensen asked whether the "title opinion" stated you were entitled to zoning priveleges of Eden Prairie, and also whether Underdahl was aware of the "use regulation" which might affect the property. Underdahl answered that the paper did contain the information about the zoning privileges, but that he did not know about the "use regulation" until Edstrom came over to tell him about the 5 acre point. Cebulla asked what happens to all of the rest of the land that is zoned similiar. Does the City re-zone down to smaller and smaller acres. Meyers commenting that according to the City Guide Plan update, it has been suggested that an estate be established in the City, with nothing less than Unapproved Board of Appeals and Adjustments -5- May 20, 1976 • five acres and every area where sewer and water is needed. Sorensen added that this was already possible, and there is a thought and pressure that we should . maintain the 6,000 sq. fti in some areas in our City and that I we should maintain the five acre requirement,in other areas. Y10TION:Sorensen moved that this body continue the matter to the Agenda of June 17 meeting, after receiving legal opinion from the City Attorney. Gebulla seconded. Meyers requested examples of some of the procedures that we have used before and whether the circumstances are the same. ADDITION TO MOTION:Sorensen requested that the Staff provide us with any in- formation on similiar land developments that have occurred in the past. Gebulla accepted the addition. The motion was voted on and passed unanimously. Sorensen commented that he wanted a definite legal opinion from the city Attorney and would like to get a chance to study information given this evening, such as the Bluff Study etc.. Cebulla questioned whether procedures of the past should have any legal binding on this discussion, because procedures are established in the Ordinance and the purpose of this body is to rule on exceptions. Sorensen said that legally they do have, and if we have granted them in the past., we have no right to deny these now. Sanders asked Meyers, as a point of clarificationt whether she wanted to know of similiar land subdivisions or building permits granted, or both. Meyers responded both. Wedlund asked that the parties concerned submit to the Staff any new additional matterso pro or con, before the next meeting. Attorneys for both parties requested copies of the City Attorneys opinion and all information. V. Bernard Hamilton. -9870 Franlo Road, Eden Prairie, Minn. Chairman Wedlund spoke to the request for a variance permitting a variance from the 50 foot side yard setback requirement and the 50 foot rear yard setback re- quirement to allow a building setback of 25 feet on one side and 25 feet at the rear of the building, with property being located at the NE corner of Mitchell and Research Road, and zoning is rural. He asked Mr. Hamilton to make his pre- sentation. Mr. Hamilton told the Board that a 50 foot setback shortens the distance from drainfields, plus it locates him closer to the two roads,, which are both dirt roads and are very dusty. Unapproved Board of Appeals and Adjustments -6- 1,%y 20, 1976 Wedlund asked what the size of the house was. Hamilton responded that it would be 561 by 341. He added that a house is located there now and if he builds under rural zoning, he would have to build right in front of him. 'Wedlund said that this parcel is only one acre,, and rural requires five acres in order to build a house on same as case before. Sanders commented that he wants only a side yard setback. Wedlund said that this question is not can he have a 25' setback, but can he build. at all. He added that we are going to the City Attorney for an opinion., which will apply here also. L. J. Flesher, 11+000 Research Rd, said that in 1962 it was all one parcel with one structure. Sorensen asked Hamilton whether he had an Attorney at the time of purchase. Hamilton responded affirmative. He said he plans to move a new house onto property and has a July 15 deadline. He added that the house was purchased from Vo-Tech with $2,000 down and he has to move house off foundation by mid- JUly, and if he fails to get this cormitment, he loses the house. He said he had received verbal approval by Sanders and the Attorney, who researched the title. The possibilities of moving the house off the foundation and putting it on wheels and storing in the parking lot were discussed, but the parking lot was already cramped for space. Flesher requested to know the reason. for the variance if it is granted, and questioned why the setback has to be 251 if we are treated as rural. He added that if you are not going according to rural, can you move it over? He said that in the future, if he does move the house over, it would not allow dividing of the lots. Sorensen requested that Hamilton please give our Staff a copy of the title opinion. Wedlund asked whether Hamilton would place the house in the proper manner, if we did not grant the variance. Hamilton responded affirmative. Wedlund commented. that we are following a similiar situation and did not want to cause him to lose any money. Cebulla suggested asked Vo-Tech for an extension, with Hamilton responding that they have to build another house on the foundation, and they use funds from the sale of that house to build another. Flesher stated that he would like to Po on record on these two understandings, if you approve re-zoning of 1 acre parcels, I would object to a closer variance than 501. If variance is granted to 25t, he presumes it will be zoned to 3- acre or less. Sorensen commented that the action should be re-zoning rather than variance, and that it should go before the Planning Commission and Council. , Unapproved Board of Appeals and Adjustments -7- May 20, 1976 • Sanders said the question was brought up by City engineers, re-zoning or variance, and they decided coming in for variance. Ike said he suspected re-zoning, with ,public hearings etc.. Cebulla asked what recourse was open to Hamilton. Sorensen responded that it depends on what the title opinion says, and that he holds his land until lots are ruled. Sanders suggested reviewing "administration 'land use" which is established by the Ordinance., and felt it would clarify the issue. Sorensen said the power to subdivide the land may be within the Ordinance, but it does not provide for the building permit. There was discussion. MOTIONtCebulla moved whereas Mr. Hamilton has applied for variance to build a house having less than required side lot dimensions on a lot and will be one acre in size when requirements are for five acres, it is the finding that this is in substantial disagreement with the Ordinance, the request for variance is denied. Cardinal seconded, motion carried unanimously. IV. Hustad Development Corn.- MOTION: Sorensen moved to continue the matter to June 17 meeting. Meyers seconded, motion carried unanimously. VI. A-Divointment of member to assist on Sign Ordinance modifications Sorensen spoke to the need for exploration of reasonable and unreasonable objectives in sign modifications. Wedlund accepted appointment as member of Sign Ordinance modification group, with Cardinal and Gebulla- acting as alternatives. t� Meyers said the three basic complaints:against the various procedures itself, PUD signage seem to get more favorable treatment than single request, and Ordinance fails to address large site companies. Sorensen moved to adjourn at 10:10 P.M.. Cebulla seconded, motion carried. Submitted by, Donna Stanley Recording Secretary