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HomeMy WebLinkAboutBoard of Adjustments and Appeals - 01/10/1991 o , APPROVED MINUIES BOARD OF APPEALS AND ADJUSTMENTS THURSDAY, January 10 , 1991 7:30 P.M. City Hall Council Chambers, 7606 Executive Dr., Eden Prairie, MN 55344 BOARD OF APPE.&L.S I-MMERS lVight Harvey (Chairman), Arthur Weeks, Bill Arockiasamy, Scott Anderson, John Freemyer, Neil Akemann , Hike Bozonie STAFF PRESENT: Jean Johnson-Planning,Sharon Storholm, SeclS BOARD MEMBERS ABSENT: Bozonie, Akemann, Anderson I. CALL TO ORDER-POLL CALL-PLEDGE OF AUZGLUCE Chairman Harvey called the meeting to order at 7: 40 PM. All present recited the Pledge of Allegiance and roll call was taken as noted above. II .MINUTES OF THE DECEMBER 13th MEETING Freemyer noted that on page 6 , fourth paragraph, the word"would" should be changed to "could" regarding his vote. Weeks noted that on page 11, paragraph 2, the wording should read "the color was not complied with as approved by the Board. " MOTION: Freemyer moved that the Board approve the Minutes for the December 13th meeting with the changes noted above. Weeks seconded the motion and it passed unanimously. III .VARIANCES Chairman Harvey explained the variance process to those present.. He also noted that the first two requests were similar and would be handled at the same time. A. Request #91-001, submitted by Kenneth Nicholls The request is for a variance from City Code Chapter 9 Section 9 65 to permit use of a 20 horsepower motor on Mitchell Lake City Code permits a maximum 10 horsepower motor on Mitchell Lake B. Recruest #91-002 submitted by Patrick Minton The request is for a variance from City Code Chapter 9 Section 9 65 to permit use of a 20 horsepower motor on Mitchell Lake City Code permits a maximum 10 horsepower motor on Mitchell Lake Mr. Nicholls and Mr. Minton came forward to present their variances . Nichols said that both of them have 20 horsepower motors that were purchased prior to the pass}ng of the ordinance. The pontoon boats that they operate are used for children swiming and fishing. These pontoon boats are 20 and 24 feet in length and are suseptible to wind and hard . to control with smaller motors . A hardship would be put upon the two if they were made to replace the motors now. It would result in a financial loss for both. 2 IN, • Minton said that he believes in the ordinance and is willing to do what he has to, but would like to keep the boat and motor for a while yet. Johnson said that the ordinance was passed in 1989 . It ' s purpose was to control noise and speed and wake action. This is the first variance submitted on this issue and more could be submitted in the future for this- and other lakes. The Park and Rec. Dept reviewed this on January seventh. They recommended approval on a 3-1 vote with an expiration date of December 31, 1995 . The City has received various letters that voiced concern on this issue. One was received in support of the variance requests . The lake classification is natural environment and there are plans for boat and parking areas on the south end of the lake--this could result in more boats on the lake. The lake has a residential character. Harvey asked about the use of natural en Aronmental waters. Johnson answered that the concern was the development of the lake and the depth of the lake (this is only 15 ' now) . The deepest part is on the north end. Harvey asked how many 20 housepower motors are owned by people living around the lake. Nichols answered that possibly one or two more .motors--possibly three other pontoon boats . There are lots of canoes and smaller boats . Harvey asked if this use would be available to people outside of Eden Prairie also. Can these people ask for variance--? Johnson answered yes , they could do that. Harvey asked if State assistance was received because of the public access. Johnson answered that it was , but only a small amount. The city pays most of the cost. Freemyer asked if this were to be turned down, could the proponents take their boats to Lake Minnetonka in the spring. Nichols said it would not be a good plan for him as his concern was to use for his childrens swimming and fishing. They cannot swim off shore because of the weeds. A boat is needed to get out farther. He would need to sell the motor and get a smaller one in that event. Minton said he would sell his motor also. Freemyer asked the proponents if they felt the residents of the lake should have more leeway in this matter. Minton answered no, and said that was not the issue. He bought the motor before the ordinance and would like to get some more use from it. Nicholls said that he did not feel that there would be a lot more boat traffic on the lake. 3 Freemyer asked if the proponents docked on their own frontage. Nichols answered yes, they both do. Freemyer asked if the motors created a lot of agitation. Nichols said that when the drought was here, the lake dropped 8-9 feet. Weed growth became thick. He did not see any churning action. Minton said the motors do not go down very far into the water. Arockiasamy asked if these motors could be used on other boats . Minton answered no, it would be a major job. They are all wired into the boat. Arockiasamy asked Johnson if this were to be granted, could others be denied? Johnson answered that others will come and apply and it does not have to be automatically approved. Arockiasamy said that if the specific reasons for granting this would be identified, would it set a precedent? • Johnson said that some may say that they bought the boat and motor with the idea that they wanted to. use them on Mitchell Lake and Red Rock Lake. Arockiasamy said that such a situation would be different that this one. Johnson said that on a pontoon boat, the motor is different than on a row boat. It would limit the future requests to the same conditions and those with pontoon boats . Harvey asked about the ordinances on Round Lake, Red Rock Lake and Mitchell Lake. Johnson said that Red Rock Lake and Mitchell Lake have the same ordinance. Round Lake has a separate ordinance. Weeks asked how the City will enforce the ordinance. Johnson answered that the DNR or City police would probably get a call. They would go out at that point and get the name and number of the offender A sign will be posted at the landing. Weeks asked if there were complaints from neighbors before the ordinance. Johnson answered as far as she knew, there were none. The City wanted to protect the lake and residents at an early stage. Weeks asked the proponents if they had received any objections prior to the ordinance. 4 Minton and Nicholls answered no, they had not. Harvey asked if the City and the DNR would enforce this? Johnson answered yes, the DNR actually has the responsibility, but is is a hazy area considering it is a public lake, a city ordinance and the DNR has control. Weeks asked if someone on the lake was speeding, would the DNR or the police receive the call? What about response time? Johnson said since it was not a life threatening situation, it could be anytime from 5-30 minutes . Nicholls said he had bought his boat and motor new in January of 1988 . Minton said he had purchased the motor in 1988 also. Mr. Laverne Hales of 7946 Island Road came forward and asked if this was for pontoon boats only. He would like that verified. Harvey answered that these proponents said the motors are hard wired on the boats . He was concerned with how many more would come to the lake. What about dock space? • Johnson answered that dock spaces were not for rent--just the landing area is for public use. Hales said he lives on the north side of the lake and has been there since 1987 . He has a 16 ' boat with a 3h horsepower motor. Nichols suggested that the serial number of the boats and motors be recorded and then indicate that they could only be used together. David Davidson of 8078 Timberlake Drive came forward. He said he was the president of the townhome association there. They have several hundred feet of shoreline and have a legitimate concern. If these would be the only two, that would be fine, but this may set an unmanage- able precedent. The variance does not say anything about pontoon boats or the people who bring the boats in. The new access will make it more tempting for others to use the lake and possibly violate the ordinance. Youngsters swimming off a pontoon boat may not be the safest thing. Any large motor has a impact on the environment. Contol will be difficult and this should be studied carefully. Harvey asked about the letter from the townhouse association. Davidson said there were 35 homeowners . Five elected officials who act for the homeowners voted unanimously against the request. Mr. Glen Fristad of the Mitchell Lake area came forward and said the residents had wanted this ordinance for safety and wake action. Regarding the grandfathering clause, the city was against this from the beginnnig. He is in favor of the variance request. Such requests should have been grandfathered in. 5 Harvey asked if Fristad was for the request. Freestad answered that he was for it. He has a 16 ' boat with a 30 horsepower motor on it. He will wait to see what happens in this case. Weeks asked about the shape of the lake. Fristad ' said the only part of the lake that has space for water skiing is the main part. Fristad said that if this were to be granted for more than 10 horse power, would it be hard to deny others asking for similar variances? Freestad said he had his 30 horse power motor before the ordinance and uses it on other lakes too. He said that he has a 16 ' fishing rig. The motor could possibly be removed, but is very heavy. " The boat is much smaller than the pontoons . It was only used on other lakes last year as there was no access. Bill Kenny of 17651 W 78th St came forward and said that when they originally spoke on this issue at City Council it had been argued that 10 horse power should be the limit. It takes a lot of power to push a pontoon through the water. He has no objection to pontoons that are there now. They are not that fast.The only problem is that if the variance is granted, would the City be legally obligated to do the same for others? On a single hull fishing type boat, it should be limited to 10 horse power. Harvey asked if the lake was sheltered in most areas . Kenny said the north side of the lake is the deepest an largest. The lake is cut up quite a bit. It is not designed for high horse power motors or water skiing. Harvey asked Johnson if this variance could. be restricted only to pontoon boats . Johnson answered that the Board could draft some -conditions and forward them to the City Attorney and have them brought back on next month' s agenda. Two other alternatives are to take action this evening or continue the request. Weeks asked if the Board could restrict the conditions . Johnson answered yes , they could do that. Jim Neal of 8011 Island Road came forward and said that he moved to the lake in 1986 . He is another 20 ' pontoon owner with a 25 horse power motor. He likes to barbeque and and swim off the pontoon. He agrees that 10 horse power is not enough. Anyone else who wants to do this would also have to go through this process and that would not be a big motivation. Conditions could be put in the variance. When you buy a used pontoon, you do not have a lot of choice. He got what he could afford. He had voted in favor of the ordinance. 6 Freemyer asked if Neal was aware that the ordinance would affect his boat and motor. Neal said he was aware of that, but had understood that there would be a variance process . Freemyer suggested that an expiration date be kept with this . He would be more in favor of it if the date were sooner than 1995 . Neal said that would be a compromise. Freemyer asked the others present how they felt. Nicholls said that he could accept that, but mould like a renewable clause on the condition that there were no complaints . Minton agreed with Nicholls . Arockiasamy asked what the reasonable life of the motors would be. Minton said 10-15 years , but this would be a compromise. Arockiasamy asked if this would give the proponents time to make a transition. • Minton answered yes, it would give time for that. Freemyer said he would favor a non-renewable document. Harvey said that a number of people have said that city staff was in favor of grandfatheting, but now we do not hear that. Johnson said that the city position has changed. The comments of the City Attorney makes the Staff uncomfortable. Harvey said the Board still has not addressed anything beyond the 20 horse power motors and pontoon boats. Arockiasamy said that the Board is looking at specific variance request-- not a grandfathering clause and not a variance that applies to others-- only these two motors . If others should apply, they will be considered then. Variances are granted for specific cases , not for general use. These motors were purchased before the ordinance for use on specific boats and on Mitchell Lake only. The variance granted to these two motors will expire when the boat, motor, or property is sold or the motor is no longer repairable. Harvey asked why these two are unique. • Arockiasamy answered that they were bought prior to the ordinance. They only want continuance of use until the motors quit and cannot be repaired. 7 �. Freemyer said he could second that motion if Arockiasamy wished to state it in the form of. a motion. Harvey said that the findings are not unique to these individuals-- others ,anthe lake will fit into these catagories. Arockiasamy answered that he would not be able to justify the other 30 horse power motor. Pontoons are slow moving--possibly this can be added (in order to show the intent of the ordinance ) . Weeks said that a 10 horse power motor on a pontoon can be dangerous . They need more than 10 horse power. Arockiasamy said that after 1995 , even these two gentlemen cannot have 20 horse power motors on the lake. They will then need lesser motors or else stay off the lake when it is windy. Five years is a reasonable time. Harvey said there was a public discussion that there would be 10 horse power motors on this lake. This was the only ordinance that said that there could be appeals made. Freemyer said that he felt uncomfortable with the grandfather clause. Arockiasamy said that the Board only needed to look at these two specific things . Harvey asked what the unique circumstances were. Arockiasamy said that if another request should come in next month, and it is identical, the Board would have no reason to deny it. But, if it is different, the Board could deny. There is uniqueness here and hardship for these two individuals . This could be granted with conditions. Johnson summarized the letters received: January 7, 1991 Mr & Mrs Kinner 7958 Island Road Objected December 31 , 1990 Donald Kelsman 17008 Weston Bay states comments . January 10, 1991 David Ludwig in favor January 3 , 1991,call from resident at 7964 Timberlake Dr, concern January 10 , 1991, Timberlake Townhouse Assn, opposed. Freemyer said that noise was an issue that had not been addressed. Nicholls said there was not much difference in 10-15-20 horse power motors. Weeks said the interest of the ordinance is to provide a safe environment. Maybe this is not truly unique, but it is in the spirit of the ordinance because it is safer for a pontoon boat. This is just a specific request. Restrictive conditions would be needed to keep others out. MOTION: Arockiasamy moved that the Board approve Variance request 91-001 and 91-002 with the following findings : 1. These motors were purchased prior to the ordinance 6789 , City Code Chapter 9 . 2. These motors are dedicated for use with a specific pontoon for Mitchell Lake only. 3 . Continued use of these pontoon boats does not change the intent 'of ordinance 6-89 which addresses : a. Safety b. Disturbance c. Quality of water Conditions for granting are: 1. The use should continue to be on specific boats and on specific lake. 2 • The variance will expire on December 31, 1995, or when the boat or motor or property is sold or when the motor is unrepairable, whichever is first. 3 . The varaince is not transferrable to new property owners and is not renewable. Freemyer seconded the motion and it passed 3-1 with Harvey opposed. Harvey was opposed on the grounds that there is no hardship except economic; and variances are not to be granted on economic hardships . C. Request 491-003 submitted by Frank and Mary Smetana for property located at 7722 Smetana Lane Eden Prairie Minnesota The request is for a variance from City Code Chapter 11 Section 11 03 Subdivision 2B to permit an accessory structure 2 ' from the side lot line. City Code requires an accessory structure to be setback 30 ' from a side lot line Frank Smetana came forward and asked if the Board had the letter he had written in their packets . He had also sent photos . The Board had this information. ;Smetana said he had a residential lot and the home is less than . 30 ' from the lot line. He did not need_ a variance for his home. There is a shed on the property built prior to 1982 that is 1 ' from the lot line. Smetana . said that Dennis Nesbitt of the -City had told him then that it was not to be built on the lot line. His gazebo is 10 ' 9 from the property line and Carl Julie had told him that no special permits were required then. In Septmeber of 1989, he put in a fence and had called the City and was told that no special permits were required. This fall he had constructed a shed and thought it only had to be less than 100 sq. ft. for the finished product. He said he knows that ignorance of the law is no excuse and he is not ignorant, but did make inquiries and did not find this out. He deeply regrets asking for a variance after the fact. Moving this shed will not remove it from view-- it may only draw attention to it. It is now in the best location it could be due to sanitary sewer easement and location of trees on the property. There are plans to raise or level Smetana Lake. It is important to keep the shed above the flood plain. The other one was flooded in 1987. It has been suggested that a berm could be built around the back of the home to protect it from the danger of flood. There is not a spot better than where it is presently located. It causes no hardship. There was an objection from the neighbor,. who has a shed on the same location on their own lot. The T.echnology Park Development has created a negative view from the property and he has plans to screen this . At the Council meeting in 1989 , a hardship was created for this property and if there was a way out of there, he would take it. Harvey asked about the berm and raising the lake. Smetana answered that it may be raised from 837 ' to 838 ' . The ordinary high water mark is 8331 . The floor elevation in the house is 842�. Johnson noted that in the Staff report, there is information that states 1�- ' setback. It should say 2 ' feet. Smetana noted that the land was surveyed and divided in 1973 . The Staff report indicated the date as 1969 . Johnson said that the two homes in this area are unique situations . There is rural and alsDindustrial land around them, but no other single family homes . Other locations for the shed have been eliminated by sewer and flood plain concerns . Weeks asked if the lake were to be raised, what would happen to the gazebo. Smetana said he was not concerned with the gazebo. Relocating the shed would be expensive or even a total loss if there was 'no where else to place it. It is stick built--one of Eden Prairie ' s finest. In 1982, he had owned property on both sides of the property line. Set backs were not necessary then. Freemyer asked about a building permit. Smetana said he thought no permits were required. Marcella Smetana of 7730 Smetana Lane came forward and showed 10 Pictures of the area. She said the proponent had taken a metal shed down and built near the lot line. It is only 14 ' from the C corner of her home. It has no foundation. She does not believe that the proponent did not know how far it should have been from the lot line. All she sees from her home is the shed. It should have been put where the other one was. Her sheds do not obstruct anyone ' s view. The Technology Building is a nice building and well kept up. It does not qualify as a hardship. Mrs . Frank Smetana came forward and said that they had recently aquired a son in law and needed storage for his equipment. The first shed was not safe from water damage. No objections were raised during construction ( 3 weeks ) . Harvey asked if the shed on the left side had been taken down. Mrs . Smetana answered it had not, only the metal shed. Harvey asked where the major sewer interceptor went. Smetana showed the Board the location of the sewer and the well. Marcella Smetana asked why it could not be near the driveway. Freemyer said that area was in the flood plain. Weeks asked why the neighbors had not objected to this before. • Smetana answered that they were not on speaking terms . Marcella Smetana said that they had made their objections to the City Freemyer asked when the City had become aware of the objection. He noted the estoppel clause. Would a continuance be needed? Smetana said that when he got the letter on November 5, the building was completed except for shingles and paint. Freemyer noted that the City is not expected to have a policing action. Such things are policed in the permit stage. Smetana said the neighbor could have called and voiced objections . Marcella Smetana said that she had called the City instead of Smetana. Smetana said that he felt he had the most assaulted home in the City of Eden Prairie. Mrs . Frank Smetana said that the lake is the next scheduled lake project. . Marcella Smetana said that Obermeyer had said it would be a while before the lake project took place. • I1 Harvey noted that the shed was the issue and those resent should address their comments to the issue. p Weeks said that the lake affects the placement of the shed. Freemyer noted that the shed is difficult to move because of the location of the sewer lines, septic system and the flood plain. Arickiasamy said that generally people are expected to look into the ordinances of the city before such projects. If the city finds out it is non-conforming, it should be either moved or adjusted. Johnson added that the Staff issues a red tag or stop work order during construction of a non-conforming structure. Then, it is investigated and advice is given. In this case, the areas suitable for relocation are limited. Arockiasamy noted that there were three non-conforming sheds on two properties . Johnson said that if no one had complained, it may not have been investigated. The area may have other uses. • Arockiasamy asked about alternative locations . It is hard to deny this , as other sheds are there also. It seems like the most reasonable location. There are lots of restrictions . Harvey said that anywhere it was placed would also require a variance. Arockiasamy said this is a difficult case. It is difficult to hide the shed. . Freemyer felt that a continuance would be of ho value. He agreed with Arockiasamy and Harvey. MOTION: Arockiasamy moved that the Board approve variance request 91-003 with the following findings : 1. There is no reasonable and practical alternative location due to location of sewer lines , easements, and water levels . 2 . There is already more than one non-conforming shed on this and the adjacent property. 3 . The septic system and several trees are adjacent to the home. . 4 . The shed is in a somewhat reasonable location. 5 . The location of the shed does not change the character of the larger neighborhood. t 12 Weeks seconded the motion and it passed unanimously. IV. OLD BUSINESS Arockiasamy said that he understood that the Council Members were to state the reasons for overturning the decisions of the Board. The Board had only received Dawson' s interpretation of these decisions by the Council. Harvey said he agreed. The Council said they would explain the reasons for the overturns. Arockiasamy said that the Board is an extension the the Council. The Board needs a reasonable understanding of how the Council looks at the situation--the Board needs guidance. Hopefully, the number of overturns will minimize as the gap in understanding narrows . If there are a lot of overturns, something is wrong. Both bodies serve the same City for the same purpose. Harvey said that in five years, he has not heard reasons why decisions were overturned. Mr. Pauly has reminded the Council of that fact. Still, they overturn decisions without stating the reasons . iArockiasamy said that "that is how we felt" is not a good reason. The Board needs valid reasons . Freemyer said that he felt that the Council does not fully under- stand some of the statutes or they would not overturn decisions without defining reasons . He quoted statutes that establish levels of strictness . They say that a hardship needs to be defined. Harvey said that this is not an advisory Board, but a decision making Board. Freemyer said that in past meetings,he and others have expressed this. First readings. of plats are presented before they even get a chance to look at them. Things are out of sequence. Johnson noted that the Planning Commission had to act within so many days of receiving the plat. Arockiasamy said that the gap between the Council and the Board needs to be narrowed. Harvey said that the Board denied the Headquist addition. Weeks brought up the fire, life, and safety issues. The Council had not addressed these issues . Is the Board looking at things the wrong way? We need to know why decisions are overturned. 13 After inquiry on the Touch of Class variance, Johnson noted that the deadline was three years from the date of the decision. That would bring the deadline to December of 1991 . V. NEW BUSINESS Johnson noted that there would be two more horsepower variance requests in February. Also to be considered are a request for a house moving and another on side yard setback. Johnson noted that the Flaherty duplex decision has been appealed. VI. ADJOURNMENT MOTION: Arockiasamy moved that the Board adjourn. Freemyer seconded the motion and it passed unanimously. Meeting adjourned at 10 : 34 P.M.