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HomeMy WebLinkAboutBoard of Adjustments and Appeals - 06/13/1991 . BOARD OF APPEALS AND ADJUSTMENTS THURSDAY, June 13 , 1991 7:30 P.M. City full Council Chambers, 7600 Executive Dr. , Eden Prairie, MN 55344 BOARD OF APPEALS MEMBERS Harvey, Freemyer, Wilkus, Akemann, Anderson, Weeks , Arockiasamy STAFF PRESENT: Steve Durham-Planning, Sharon Storholm,Sec' BOARD ��gRS ABSENT: Weeks' . CAM, TO ORDER-ROLL CALL-PLEDGE OF ALLEGIANCE Chairman Harvey called the meeting to order at 7 : 30 P.M. Roll -call was taken as noted above. All present recited the Pledge of Allegiance. II . MINUTES OF MAY 9 , 1991 MEETING MOTION: Anderson moved that the Board approve the minutes as submitted. Arockiasamy seconded the motion and it passed • unanimously. III . VARIANCES A• Request#91-014 submitted by Michael Weinberger for property located at 15440 Edgewood Court Eden Prairie Minnesota The request is for a variance from City Code Chapter 11 Section 11 03 Subdivision 2 B. to_permit a deck 5' from the side lot line City Code requires a minimum side yard setback of 10'. Michael Weinberger appeared before the Board to present the request. He said that he and his wife have been residents in Eden Prairie since 1985 and have recently moved five blocks to their present home. The title report on the home had indicated that there was a problem with the deck regarding setback and property line . No clear title can be obtained until this is cleared up. A five thousand dollar escrow account was set up. He is now asking that the deck be brought back only five feet instead of the required ten feet. It is a large deck and in some areas eight feet of deck would be removed. The deck overlooks Purgatory Creek and the neighbors are agreeable.The area is private and the variance would not affect those -living in the area. Some of the Board members have come out to inspect the site. Durham said that notices have been sent out to neighbors within 500 ' of the home and no calls have been received regarding the request. Originally, there was no building permit obtained, but this proposed • rebuilding would require a permit. He added that the applicant did not create the problem. 2 Akemann said he had been to the site and had no questions except he asked for clairfication if the request affected only the deck or the retaining wall also. Weinberger answered that the retaining wall is on a neighbor' s property (Anderson) . This request would move the retaining wall back on his own property so it would no longer be on the neighbor' s land. Durham noted that retaining walls can be placed in drainage and utility areas . No building permits are required for retaining walls . Harvey asked if Weinberger intended to cut the deck back or move it. Weinberger answered that he intends to remove a portion of the deck and may need to make some structural modifications if necessary. He added that the porch is a solarium. Harvey asked Weinberger if, in the future, the deck were removed-- would it be acceptable then for any new structure to be required to be built within the 10 'distance at that point? Weinberger said the area is wooded and overlooks Purgatory Creek. The neighbors cannot see the deck because the area is seculded. • Freemyer suggested that if an occupant would like to rebuild the deck in the future, that a variance be requested at that time. Arockiasamy asked Durham if the 5 ' variance were to be granted, would this he merman-n+-? Durham answered that the variance runs for the life of the property for this deck only, based on this information and this survey. Arockiasamy stated that the 5 ' varaince applies only to this deck and this configuration. Weinberger said that the deck gives value to the home and even this modification takes away some value. Harvey noted that the Board needs to think of future owners who may want to replace the deck. Arockiasamy suggested that any motion should make it very clear for the applicant and any future owners . James Haugen, of ReMax Realty, came forward and said that the reason for the retaining wall is to preserve the land from falling into the creek and to maintain the integrity of the garage. • 3 MOTION: Arockiasamy moved that the Board approve variance request 91-014 on the following grounds : 1 . The variance has not been created by the applicant. 2 . The variance will remove the deck area out of the drainage and utility easement and eliminate the deck over the lot line. 3 . The variance will clear the title for the home site. 4 . The variance will allow the new owner to maintain the majority of the deck he purchased with the home. 5 . The granting of the variance applies only to the deck detail on the application. 6 . The variance will not apply to any additions or mod- ifications to the existing deck. 7 . The variance is good as long as the surface area of the deck does not exceed or extend beyond the config- uration shown. Amendment: Akemann added an amendment stating that a hardship existed regarding the topography of the land. Amendment: Harvey added an amendment stating that the • footprint of the deck must remain the same. Wilkus seconded the motion and accepted the amendments . Motion passed unanimously. B• Request #91-015 submitted by U.S. West Communications Inc. for property located at 7980 Wallace Road Eden Prairie Minnesota. The request is for a variance from City Code Chapter 11 Section 11 03 Subdivision 3. J. to permit outside storage of a vehicle over 3/4 ton capacity. City Code does not permit the storage of vehicles over 3/4 ton capacity outside. Barry Totman of U.S. West Communications came forward to present the variance request. He explained that they are requesting a varaince from City Code for parking vehicles over 3/4 ton outside. He is supervising eight people at the present time installing underground lines . Inside storage at the location is not adquate for additional equipment such as needed for this project. At the present time, they are remarking the parking stalls in the building to gain more room. Some equipment requires pull through space. There are three such vehicles and two would need to be parked outside. the NW and SW corners would conceal the equipment the best--the NW corner is preferred. Durham said that notices had been mailed out to property owners within • 500 ' and no responses had been received. 4 Durham added that he also recommends area 1 (NW corner) as it provides the best screening. Freemyer asked Totman about other possible storage areas. fiotinan answered that all areas are now used at maximum. There is one possibility in Bloomington and another south of Hwy 55 and east of 494--but no office space is available there. Freemyer suggested renting space. Totman answered that he has looked into this, but the work would be on a short term basis--possibly April -Nov. He added that the equipment is leased and goes back to the lease company in the winter months . Then, without the additional unit, the truck can be stored inside. Arockiasamy asked how many feet of the 82 ' would be needed to park the vehicles . Totman answered it would take about 20-30 feet for parking. Anderson was concerned about setting a precedent in this situation. She felt that the intent of the code was to _prevent outside parking • of such vehicles . Freemyer agreed with Anderson. Totman again stated that this will be only a seasonal arrangement. Harvey asked how many hours of the day the equipment would be parked outside at the site. Totman answered it would be about 15 hours a day. The facility is a multi-function facility which utilizes larger vehicles . Akemann asked if the facilities were outgrown, possibly expansion or relocation should be considered. Totman answered that he cannot say what the corporate plans are at this point. The idea in this instance is to see if the work can be done internally--it has previously been contracted out. If, after this work is done, space is still needed, another representative would most likely come before the board and ask to expand the storage area. First, the program needs to be proven cost effective. Akamann suggested a time period for the variance. Totman said he had no problem with a two year plan. He did not know • how temporary this would be as the program is different from what had been done in the past. Wilkus asked if there was a zone that would allow this parking. He also commended Totman for even applying since he could have met code 5 • requirements by unhooking the truck and trencher. Durham answered that I-General zone would allow this parking. Most industrial sites now are I-2 and I-5 . This situation does have effective screening. Totman noted that U.S. West is a tenant in the building. Durham said the building is probably built to capacity now. Harvey said the idea of the code is to protect conflicting land uses and shield general public from being exposed to 3/4 ton vehicles standing outside.This location is not visible from residential sites . Anderson asked what the hardship was in this instance. Harvey said that the vehicle can still be stored outside, but would need to be detached. The public will not see it. Arockiasamy felt there may be a mild hardship. This is a temporary situation with a leased vehicle. The options are limited as they cannot expand. As long as the Board limits the time on the variance, the intent of the code is met. Akemann said that starting different crews from different locations is a difficult job. • Freemyer said there are other options--warehousing. It may be inconvenient. Arockiasamy said the City should be flexible as long as the intent of the code is not violated. Freemyer said that the code is explicit in these instances . Durham said code states such vehicles are not to exceed 3/4 ton capacity if they are parked outside. Harvey said the Board allows variances from code when literal translation is too restrictive. The Board can relax (interpret) code and still meet the spirit of the code. Arockiasamy said any code or ordinance will not apply to all situations . Akemann said that the hardship is that the applicant would have to separate vehicles daily in order to meet the code. MOTION: Arockiasamy moved that the Board approve Variance Request 91-015 on the grounds that this is a trial and temporary situation and strict enforcement will cause undue hardship. Conditions shall be added to state: • 1 . Thirty feet (of the 82 ' ) in the NW corner shall be utilized for this parking. 2 . The variance will expire o.n Decmeber 31, 1992 � . Ttn mnrp variances will be permitted for similar storage 6 • Amendment: Wilkus added an amendment to state that the variance will run with the tenant; U.S. West. Amendment: Harvey added an amendment to state that by detaching the units , the use would be allowed. Together, they cannot be stored inside. Separating the vehicles is a hardship. The spirit of the code is not violated and the public is protected. Freemyer objected to the amendment by Harvey. Totman asked if he could come back in 1992 and request a variance again at that time. Harvey answered yes, he could do that. Durham said that application would need to be made by the end of 1992 , although it would not need to be granted. Akemann seconded the motion and it passed 4-2 . In favor: Wilkus, Harvey, Arockiasamy, Akemann. Against: . Anderson, Freemyer. C. Request #91-016 submitted by Mr. and Mrs Mathei for property located at . 11948 Waterford Road Eden Prairie Minnesota The request is for a variance from Lake Heights Addition Developer's Agreement to allow a 30' setback from Anderson Lakes Parkway. The Lake Heights Addition Developer's Agreement requires a 50' building setback from Anderson Lakes Parkway. Tom and Sharon Mathei came before the Board to present the variance request. Mathei said he had mixed emotions and explained that his experience as a mortgage banker should have prevented him from finding himself in this situation, except that he had some personal health difficulties at the time and the problem was not detected until after the closing. They had lived some distance from here when the home was being purchased, and had to rely on the title company for what he thought was reliable information. There is a 6-12 ' berm across the yard and footings already were in place for the deck in the place proposed that had been installed by the previous owner. He had looked at alternatives after realizing the problem. Mathei felt that there would be no infringement on zoning code by asking for this variance. The road will not be widened in this area. If plans for the deck are changed, access to the deck would be through the garage or utility room. A change would interfere with the neighbor' s deck area and privacy. If this setback area was 30 ' , there would be no problem. The problem arises with the 50 ' requirement. The neighbors are agreeable. He felt the lot was an afterthought to the builder as he is not able to get cable at this location. The idea of the 50 ' setback was to provide sufficient room for Anderson Lakes expansion. This area will not affect that expansion. Durham said the/ deck addition would not be any closer than what is allowed by City code in the R1-13 . 5 zoning district. When the development went through, the developers agreement was not filed on the property. The title company may not ha17A been aware of the 50 ' setback. Freemyer said that developer agreements are not filed in most counties . Mathei said that in Wisconsin Summary Sheets are required. If that were the case here, this would not have happened. Durham said that this is not a PUD. This is Lake Heights 2nd Addition and has 50 ' setback criteria. Freemyer had questions on Anderson Lakes Parkway and the right of way. Arockiasamy asked if Anderson Lakes Parkway is centered. Durham answered that on the northern edge, the center of the road may not be in the center of the right of way. If it is ever widened, expansion will be to the north. The 50 ' setback • is because it is a collector road. Arockiasamy suggested turning the deck around. It could be built with similar footage and access . Mathei answered that if that would be done, it would interfere with the neighbors deck and privacy. Arockiasamy said he was not convinced that there are no other alternatives .The variance is large and the request may not be justified. Mathei said that the hardship is that there is very little utility in the back yard. He had considered a rectangular layout, but wanted the deck and gazebo to blend. The existing footings are under a rock bed now. The gazebo will be 12 ' by 12 ' . Harvey said he shares Arockiasamy' s concerns. This is a severe invasion of the setback. Alternatives should be considered. Discussion took place on the possible placement of the deck. Akemann felt that this was a unique situation. 8 • Mathei said that this is a severe disadvantage value wise for the home ( if other plans need to be adapted for the deck) . Freemyer said that he had three points : 1 . Mathei was led to believe that there was a 30 ' setback. There is liability in the marketer. 2 . The road is not in the center of the right of way. 3 . There was a similar situation in the Valley View area before. The Board had turned it down and it was later overturned by the Council . Harvey said that there had not been much for design alternatives on that home, and first recourse- should have been with the builder. ( Zachman) Mathei said he has no recourse liability wise. Arockiasamy said that there is the possibility of reducing the variance. He would have a hard time accepting this request. Harvey said that there are elements of hardship here, but the Board needs to limit variances when possible. Akemann said the problem lies with the 30 ' vs 50 ' setback issue. • Harvey said the Board did not set these figures . Mathei said his lot is the only one with the problem. There is no probability of precedent setting in the area. Harvey said he would like to see an effort made to reduce the amount of the variance. Mathei said in the previous variances discussed this evening, the spirit of the code was important. With the 50 ' setback, the idea was to protect the public. Harvey said that the spirit of the code was not involved in the first variance request. The Board is not saying it will not grant this request, but some alternatives are needed. Mathei said he understands , but really would like this variance. Arockiasamy said more options to reduce this are necessary. Akemann said he would be in favor of the request if it were within the 30 ' setback. He felt this was not out of character and there has already been a number of hardships . The circum- stances are unique and the request is not unreasonable. • Anderson said she would approve the request. Wilkus said this reqeust exceeds the percentage he would like to see. He noted that setbacks protect streets from homes as well as homes from streets . ' 9 Freemyer said he could be in favor if the variance were reduced. He had questions on the gazebo. Durham explained the setback requirements for the gazebo. Durham added that he felt the hardship in this case was that the mortgage company did not indicate that the setback on the property was 501 . Akemann felt there could be trade offs . ' Durham said that the structure will probably not be visible from the road. Mathei said he did not understand what difference this really made. Harvey said that the lack of the deck does not deny the use of the property. The Board is looking for ways to reduce the variance. Arockiasamy said that anytime when an ordinance is made, there is a reason why. The Board cannot change it. A combination of things made this problem and what needs to be considered is how much variance can be granted. • Mathei said that as a mortgage professional, by not allowing a deck, the home becomes a little closer to unique. The house becomes less and this affects the saleability and value. The city gave the developer a set of rules ( 50 ' setback) . This has negatively affected his situation. Freemyer said he would be in favor of the request. Arockiasamy said that the deck would increase the value of the property, but lack of a deck would not diminish the value. Mathei had bought it without a deck. Mathei answered that the home would not appreciate at the same rate as the rest of the neighborhood. Durham said that the City had made a note of the 50 ' setback at the time of building permit issuance. Harvey told Mathei if the Board were to vote now, it would probably be tied 3-3 . This would result in denial. The options are to withdraw, continue the item, or call for a vote. If denied, the request can be appealed. The opposition on the Board is not opposed to the deck, but would • like design alternatives . •w 10 • Freemyer suggested that the Board allow an additional 101 . MOTION: Wilkus moved that the Board approve Variance request 91-016 with the following modifications: The setback shall be not less than 40 ' as opposed to the developers agreement of 501 . The deck/ gazebo will not be closer than 40 ' to Anderson Lakes Parkway right of way line. An existing 6 ' high berm and 6 ' high Lence will effectively screen the addition from Anderson Lakes Parkway and site lines are not compromised. The minimum setbacks and orientation of this lot decreased the amount of usable building area. Other lots within the plat were platted to accomodate the 50 ' setback. Future widening of Anderson Lakes will occur to the north right of way line and not come closer to the lot under variance request consideration The hardship is that the setback was represented as 30 ' when it actually was 501 . • Freemyer seconded the motion. Amendment: Arockiasamy added that no other variances for accessory buildings will be granted. _Amendment: Akemann noted that the play house on the propetty shall be removed. Wilkus and Freemyer accepted the amendments and the motion passed unanimously. Anderson suggested that Durham check into what Mathei referred to in Wisconsin as Summary Sheets . C. Variance Request 91-017 MOTION: Akemann moved that the Board continue the request until the next meeting. Wilkus seconded the motic and it passed unamiously. D. Variance Request 91-018 MOTION: Arockiasamy moved that the request be continued to the July meeting. Wilkus seconded the motion and i passed unamiously. " 11 • IV. OLD BUSINESS A. Beach Road House Durham noted that pressure may need to be applied per the attorney. MOTION: Arockiasamy moved that the Board send a notice to the owner stating that a certified survey will have to be in City Hall offices by June 20th and the structure should be on the foundation by June 30th or the variance may be recinded. Akemann seconded the motion and it passed unanimously. B. Funcoland Durham noted that-the sign in question at Funcoland is down. C. Touch of Class Variance Durham noted that the variance for this property will expire in December of 1991 . He can send a reminder if the Board wishes. • D. Joint Meeting Durham said he had heard no further information on a possible joint meeting between the Board and the City Council. V. NEW BUSINESS A. Amended Sign Code Durham explained that the intent of the amending is to put the definitions in alphabetical order, restructure the districts so all signs are in the same order, consolidate items that have been duplicated, include new definitions, insert new items to reflect sign criteria for commercial centers, and make corrections to reflect changes in State Statute. Freemyer suggested that consideration be given to changes on requirements for double faced signs and the base on free standing signs . Durham noted that a change has already been made, on one of these items . • B. Revised City Code Chapter 11 Durham noted that this was basically the same code as in the book. It is now on computer. Additions have been made . r 12 since 1987 and these are now included in the new code . book. There is a users index. C. Variances for July meeting Durham noted that the following variances are scheduled to be considered next month: 1 . Zachman Builders misrepresenting a lot line. 2 . Driveway variance. 3 . Moving of lot line in R-122 area. 4 . Singletree Plaza Durham suggested that the Board place a time limit on the variance requests . Often the alternatives have- already been discussed with Durham in advance. Durham suggested also that if the members of the Board choose to visit a site in question, they should call the homeowner first. He could let the homeowner know that some of the Board members may visit the site. Name tags with photo identification may be advisable. VI . ADJOURNMENT MOTION: Akemann moved that the Board adjourn. Arockiasamy seconded the motion and it passed unanimously. Meeting adjourned at 11 : 00 P.M.