HomeMy WebLinkAboutBoard of Adjustments and Appeals - 12/10/1992 M
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• APPROVED MINUTES
BOARD OF APPEALS AND ADJUSTMENTS
THURSDAY, DECEMBER 10, 1992 7:30 P.M. , CITY HALL COUNCIL
CHAMBERS, 7600 EXECUTIVE DRIVE
EDEN PRAIRIE, MN 55344
BOARD OF APPEALS MEMBERS: HARVEY(Chairman) ,ARGUE, WEEKS, '
FREEMYER, WILKUS, ANDERSON,
LYNCH
STAFF PRESENT: JEAN JOHNSON, PLANNING
SHARON STORHOLM, SECRETARY
BOARD MEMBERS ABSENT: WEEKS
I. CALL TO ORDER -- ROLL CALL
Chairman Harvey called the meeting to order at 7:32 P.M.
Roll call was taken as noted above.
II. APPROVAL OF AGENDA
MOTION: Argue moved that the Board approve the minutes of
the November 12, 1992 meeting as presented.
Anderson seconded the motion and it passed
unanimously.
III. MINUTES OF NOVEMBER 12, 1992 MEETING
MOTION:
Anderson moved that the Board approve the Minutes of
September 10, 1992 as amended. Weeks seconded the motion and
it passed unanimously.
III. VARIANCES
Request #93-01 by Bruce W. Schmitt & Associates for 7820
Terrey Pine Drive to allow construction of a Burnet Realty
office building and parking lot with a combined impervious
surface of 59.8% (Code maximum is 30%) .
Rebecca Cedarstrom appeared to present the variance request
and noted that the information in the packet summarized the
request very well. She noted that Johnson was visiting the
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• property when a few parking stalls were open, but this does
not happen very often. Parking has always been a problem at
this site. Many of the offices in the building are not
expanding, but instead doubling up on cubicles. Many office
buildings have this problem.
Lynch asked about the landscaping and possible removal of
trees.
Cedarstrom answered that they would be happy to move the
trees wherever the Board sees fit. The area is saturated now
but they will be willing to move the trees to where ever the
Board sees fit. Three large trees will need to be moved.
Harvey asked when the problem of cars parking along the curb
line had started.
Cedarstrom answered that it had begun after the last tenant
came (Surface Mount Tape) .
Harvey asked when the lease for that tenant was coming up
for renewal.
Cedarstrom answered that this particular tenant mix will be
here for at least two years. She does do what she can to
keep her tenants.
Harvey asked if the request was to add eight places on the
southwest corner.
Cedarstrom said that there was a fire hydrant there, and it
would be more like 6-7 spaces.
Harvey asked how many spaces the building was short of what
was needed.
Cedarstrom answered that they were short 10-12 spaces.
Johnson said that they had looked at areas on the south side
of the property, where a city outlot is located. Landscaping
could be located there.
Cedarstrom said that there are four reserve spaces for each
tenant. People are parking illegally by the curb during the
day.
Johnson said that this curb parking creates a lane that is
narrow for a fire truck to pass through.
Harvey said that if the tenant mix changes, the extra spaces
may not be needed. Once the spaces are in, they cannot be
changed. Have all other methods been pursued?
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• Cedarstrom answered that she has had meeting with the
largest tenant, Surface Mount Tape, and has made various
suggestions, but the situation has not changed. American
Photocopy was not using any of their office space for about
a years time. That has recently been subletted, and the
workers there are minimum. This area could be leased someday
to a business with more workers. She said that in the long
term the extra 10-12 spaces will always be needed.
Johnson noted that there were two past variances on the
property: a 0f parking setback and a rear yard set back
determination. She said that she had indicated on the blue
prints where the proposed stalls would be located. There
have been no calls received in opposition to the request.
She is recommending the condition that Staff review the
landscaping plan and that it meets City code requirements.
MOTION: Lynch moved that the Board approve Variance
Request 92-028 subject to landscaping approval by
city staff. The hardship cited was that there is a
safety issue involved regarding a fire land
problem. There is no other room for these parking
stalls. Argue seconded the motion. (Vote on page
3*)
Wilkus had questions regarding the number of parking stalls,
• the percentage of office space and what code actually
allows.
Johnson said that code allowances are based on code ratios,
but office square footages can range higher. At this time,
they are way below the maximums they could have at this
site.
Cedarstrom said that the tax base needs to be addressed
also.She asked if the land owned by the city that was
located in front of the property would ever become
available.
Johnson said it would not because it was shoreland.
Harvey felt that the site was overused.
Cedarstrom suggested that possibly there was not enough
parking at the site to begin with.
Johnson said that sometimes more warehouse use is assumed
that what actually happens.
Wilkus felt that it may be advisable to limit future
requests for this property.
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. Cedarstrom felt that to impose a condition that limits
future requests would be unfair.
Harvey said that more can always be requested, but the issue
is already being pushed a bit too far at this site.
Lynch said it is hard to predict utilization.
Harvey noted that Wilkus was only trying to set a maximum
number of parking spaces.
Wilkus suggested an amendment to include a maximum office
space ratio of 40% and link this to the 85 parking spaces.
Lynch did not accept the amendment.
Discussion of parking code in general took place.
* Vote on Motion made by Lynch for Variance Request:
Motion approved 4-2 with Harvey and Wilkus opposed. The
request was granted with one year to utilize it.
VI OLD BUSINESS
Johnson said that Carl Jule, the City Manager, would like to
update the Board on how the Council should approach deck
. variances. Staff is now being asked to research different
setback dimensions for decks than for house structures. The
Council thinks that this change may alleviate the problem.
She was studying the variance requests to determine how many
were deck requests, and how many of those were side or rear
setback situations. Then,she will determine how many of
those were approved, denied, or appealed. She would like to
demonstrate how many of the requests are handled each year
that do not meet code. She did not believe that this will
relieve the numbers of appeals - people will still appeal.
Freemyer said he did not feel that the Council cares about
statistics. The Council's suggestion will not alleviate the
problem.
Johnson said that the Managers office would like to know
what the Board would like for followup.
Lynch said that she felt the Board would like to know the
reasons why the decisions are being overturned.
Johnson said that she had recently learned that the
precedent issue does not always have importance.
Harvey said he did not want to get a code revision attempt
• as a result of the Board's letter to the Council.
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• Freemyer noted that recently, in land use case law, the idea
had come out that the land is the owners, and they should be
able to use it as they wish. Wetland was a different
situation.
Anderson asked if the Board could have a voice in any
possible upcoming decision to change code. She would prefer
that it not be changed at this time. Should a motion be made
for this purpose?
Harvey said that such a motion would not be necessary as it
would come before this Board. He felt that such action would
encourage builders from building to the maximum.
Freemyer said that if a door is placed on the side of a
house, it seems to be automatic grounds for approval for a
deck variance request.
Johnson said that Council may want to see the results of her
research first, and then it would be presented to the Board.
Discussion took place on high land costs and the desire for
low maintenance property.
Johnson said that the Council is trying to be very
accommodating to the people they are hearing from.
• VII NEW BUSINESS
Johnson noted that there were three requests for next month:
1. Burnett Realty - free standing office
2. New Bear Path - Golf Course Proposal
3. Fairfield - lot size variances
VIII ADJOURNMENT
MOTION: Anderson moved that the Board adjourn. Argue
seconded the motion and it passed
unanimously.
Meeting adjourned at 8:15 P.M.
S12EPMIN
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PP
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TO: BOARD OF ADJUSTMENTS AND APPEALS
FROM:Jean Johnson, Zoning Administrator
EXCERPTS FROM THE NATIONAL BUSINESS INSTITUTE
ON
MAJOR LAND USE LAWS IN MINNESOTA
Dec. 1992
give final approval on "minor" site plan review, but only the planning commission
or city council can approve "major" site plan reviews.
B. Board of Appeals and Adjustment
All cities that have a zoning ordinance are required to have a Board of
Appeals and Adjustments, but the statutes give great flexibility in terms of
structuring the board. There may be a separate Board of Appeals and
Adjustments, or the governing body or planning commission, or even a committee
of the planning commission may serve as the board. Further, the governing body
may provide an appropriate name for the board, usually simply the "Board of
Adjustment".
1. Duties of the Board of Adjustment
The duties of the Board of Adjustment include:
a. to hear appeals from decisions of the zoning
administrator involving the enforcement of the zoning
ordinance;
b. to hear requests for variances [variances are discussed
below]; and
C. such other duties as the governing body may direct.
2. Finality of Decisions of the Board of Adjustment
The governing body may provide that decisions of the Board of Adjustment
are final subject only to judicial review, final subject to appeal to the city council
s and right of later judicial review, or merely advisory to the city council. Again,
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practice on this varies widely with perhaps the most common situation being that
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decisions of the Board of Adjustment must be appealed to the city council prior N
to judicial review.
C. Governing Bodv
By statute, the governing body must make the final decision on the
adoption or amendment of a comprehensive plan, the adoption or amendment of
a zoning ordinance and preliminary or final plat approval (subject to certain
exceptions for home rule charter cities). Most other zoning-related decisions can
be delegated by the governing body to a subordinate body, subject to the general
legal prohibition that a governing body may not delegate discretionary decisions.
D. Other Zoning Related Bodies and Officials
• Many municipalities have special site plan or design review committees,
historic preservation commissions or other special bodies. Almost all
municipalities have a zoning administrator who is the administrative officer
charged with interpretation and enforcement of the zoning ordinances. Decisions
by the zoning administrator are appealable to the board of adjustment. In smaller
communities, the zoning administrator frequently serves as the code enforcement
officer as well. In larger communities, the zoning administrator is typically separate
from the building inspector, housing inspector and other code enforcement officers.
In almost all communities in Minnesota, zoning code enforcement operates
on a "complaint only" basis; there is no ongoing, regular review for continuing
compliance with zoning regulations except in certain limited circumstances where
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a.
Thus, municipalities typically take great care to adopt appropriate findings
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' to support denial of a conditional use permit (as well as other quasi-judicial
decisions). By statute, a public hearing by either the planning commission or the
governing body, with notice given as for a re-zoning, is required prior to
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considering a conditional use permit. Unlike the decision on the adoption or
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amendment of a zoning ordinance or comprehensive plan, the governing body may
delegate authority for granting of conditional use permits to the planning
commission or designated authority. Sgg Minn. Star § 4623595. A conditional
use permit remains in effect as long as the conditions agreed upon in the permit
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are observed. Conditional use permits run with the land and are transferable to
'= new owners provided the conditions are complied with.
t. F. Variances
A variance is a deviation from the literal provisions of a zoning ordinance
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in instances where the strict enforcement of the zoning ordinance would cause
undue hardship because of circumstances unique to the individual property.
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v Variances are frequently given for such things as setbacks, parking requirements
and the like. "Use variances", i.e., permitting by means of a variance any use that
b is not permitted under the zoning ordinance for the property in the zone where
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the affected person's land is located, are specifically prohibited by statute.
k In order to grant a variance, there must be "undue hardship". "Undue
hardship" is defined by statute as follows:
1. The property in question cannot be put a reasonable use if
used under conditions allowed by the zoning ordinance;
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2. The plight of the landowner is due to circumstances unique
to the property not created by the landowner;
3. The variance, if granted, will not alter the essential character
of the locality; and
4. Economic considerations alone shall not constitute an undue
hardship if reasonable use for the property exists under the ,
terms of the ordinance. €'
There are many, many court cases in Minnesota reviewing a municipality's
grant or denial of a variance. The vast majority of these cases uphold the
municipality. Because a variance is an exception to the zoning ordinance, some
cases provide that a municipality can deny a variance for any reason or no reason
at all provided that denial of the variance leaves the property owner with some
economically viable use of the property, so as to avoid a constitutional taking.
Most cases also uphold a municipality's granting of a variance, even in
cases where the strict standards of the "undue hardship" test would not appear to "
be fully met. Some communities have adopted standards for the granting of
variances or certain classes of "minor variances" which are less rigorous than the
statutory standards. Legal authority for this practice is questionable, however,
municipal decisions on variances are usually upheld. See. e.g. Rowell v. Board
of A iustment of the City of Moorhead, 446 N.W. 2d 917 (Minn. App. 1989). In h,
that case, a church sought a variance to build an addition three feet from the
front property line where the zoning ordinance required 4 twenty-five foot set-
back. A neighboring property owner challenged the grant of a variance to the
church on the grounds that there was no "undue hardship:' In construing the
undue hardship requirement, the court examined the statutory criteria for
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determining "undue hardship" and said "the statute is clearly intended to allow
cities the flexibility to grant variances in cases where the constitution does not
compel it. Thus, we read the first part of the definition of "undue hardship" as
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requiring a showing that the property owner would like to use the property in a
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reasonable manner that it is prohibited by the ordinance."
t Thus, the ease with which one may obtain a variance varies from city to
{ city. Some cities are very strict, applying the strict letter of the law and rarely
granting variances. Other cities are much more flexible and tend to grant
variances much more easily, particularly in situations where there is no
neighborhood opposition.
The granting of a prior, similar variance to another party does not
necessarily compel the city to grant similar variances in the future. See e.g.,
Castle Design & Development Co Inc v. City of Lake Elmo, 396 N.W. 2d 578
(Minn. App. 1986).
G. Planned Unit Developments (PUD's)
A detailed discussion of PUD's is beyond the scope of these materials. A
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PUD is basically a vehicle by which a city and a developer agree to unified zoning
F controls for a larger tract of property. These controls would typically allow the
clustering of development on a smaller portion of the tract than would otherwise
be allowed by normal setback requirements in exchange for greater amounts of
open space, tree preservation, preservation of steep slopes and other amenities on
other portions of the tract. Some cities designate PUD's as separate zoning
districts, usually overlay districts. Amcon v. Cily of Eagaa& supra. Other
x
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