HomeMy WebLinkAboutBoard of Adjustments and Appeals - 05/14/1992 UNAPPROVED MINUTES
BOARD OF APPEALS AND ADJUSTMENTS
THURSDAY, MAY 141 1992 7:30 P.M. CITY HALL
Council Chambers, 7600
Executive Drive, Eden
Prairie, MN 55344
BOARD OF APPEALS MEMBERS: Harvey (Chairman) , Argue,
Freemyer, Wilkus, Weeks,
Anderson, Akemann
STAFF PRESENT: Jean Johnson, Planning
Sharon Storholm, Secretary
BOARD MEMBERS ABSENT: None
I. CALL 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. (Anderson arrived 7:40)
II. MINUTES OF MARCH 12, 1992 MEETING
. MOTION: Argue moved that the Board accept the minutes of the
March 12, 1992 meeting as presented. Wilkus seconded the motion
and it passed unanimously.
III VARIANCES
A. Reguest #92-005 submitted by Independent School District #272
for property located at 8025 School Road for a Shoreland
variance to allow 45% impervious surface. Variance from Chapter
11, Section 11.50. Subd. 7. , .C. which limits impervious surface
to 30%.
Fred Hoisington, Planning Consultant who has been working with
the school district came forward to present the variance
request. He noted it was a difficult site, as MN DOT needs part
of the land for Highway 212. He is working to develop a new site
plan. He explained the existing conditions and said that they
are planning to expand the Central Middle School by 60, 000
square feet. Ordinance limits impervious surface to 30% and they
are requesting 45% coverage. Hoisington showed the layout of the
area on drawings and noted that the buildings will cover 37% of
the area of the site. MN DOT will give some land that was
indicated by Hoisington. It will be better situation in terms of
land surface coverage--it will be reduced from 35 to 30%. Most
of the new development does not drain to pond at all. He felt
. they were keeping the intent of the code because of drainage in
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the opposite direction. There will be less contamination because
of the septic tank removal. He had spoken with Allen Gray and
the DNR, and they favor a sump manhole.
Johnson noted that in the packet is the staff report of March,
1992. It outlines the magnitude of the situation. There have
been no changes in the proposal since then. The information
shows the existing drainage and proposed drainage. The road will
be further back from the pond. A variance is needed because of
the amount of impervious surface within 1, 000 feet of the lake,
although it does not all drain towards the lake. There will be
better systems built to deal with storm water and sanitary
sewers. The school will be 150' from the pond. The Planning
Commission reviewed and approved the request. The Council
reviewed and approved it also. Some residents called, but after
explanations, had no further concerns.
Harvey asked if the Planning Commission and Council approval
were subject to the conditions in the staff report.
Johnson answered yes, and Engineering is reviewing an alternate
proposal for a N.U.R.P pond .
Hoisington explained that a sump manhole is a catch basin that
has a sump area below the outlet.
• Harvey asked if it was 28% of the impervious surface that
drained towards the pool and if there was an outlet to anywhere
else.
Johnson answered that the figure was correct and she was unaware
of any other outlet.
*Anderson arrived .at 7:40.
Akemann asked if this was, in fact, a temporary hardship.
Hoisington answered that a good share of the site will continue
to drain towards the left. The part that presently drains toward
the pond will continue, plus part of the roof run off will drain
towards the pond.
Johnson noted that 28% of the land within 1, 000 feet is draining
towards the lake.
Weeks asked if there are any other outlets into the school pond.
Johnson answered that there was road drainage and overland
drainage.
Wilkus asked the difference between item 2 in each drawing in
the packet.
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• Hoisington answered that area 2 only changes in a new portion of
the school and in an area where there is more hard surface.
Kim Larson, who lives in the neighborhood, came forward and
asked when this will begin if it is passed. How will it affect
the neighborhood? She had been receiving notices.
Lynette Polari came forward to explain the phasing of the
school: Phase 1 will start within one month (to realign School
Road) and will be completed by August 28th. The second stage
will be more substantial and will affect the east side
(cafeteria,dock, media center) . It will be a much safer
situation. The east side will be the student entry and the other
side (near School Road) will be Staff parking and a public
entry.
Harvey explained to Larson that State law says that property
owners within 500' must be notified.
MOTION: Freemyer moved that the Board approve variance request
92-005 because only 28% of the land within 1, 000 feet of the
high water mark drains toward School pond. The school. is hooked
up to sewer and water vs septic and drain fields. The Department
of Transportation caused/aggravated the situation. Conditions
shall include those outlined in the staff report, plus approval
by the City Engineer and the storm water shall be routed through
• a ponding system. Wilkus seconded the motion passed 6-0 with
Anderson abstaining.
B. Request #92-006 submitted by Wayne Matula requesting a sideyard
variance to hermit a house to be constructed 14 feet from the
sidevards. Code minimum is 15 feet for one side and no less
than 30 feet for both sides Chapter 11, Section 11 03
Subdivision 3 . , Table 1.
Wayne Matula appeared to present the variance request. He
explained that he has been wanting to move to Eden Prairie for
many years. This particular lot fulfills the requirements. There
are two parents that will be staying with he and his wife and
they need a level lot. The design of the home is 82' in length.
He needs only one cement block on each end of the home in order
for it to fit his needs.
Johnson said that the plan for the home seems wide, but it is
not wide enough for the home Matula wishes to build. The house
and garage set up could be redesigned to reduce the size or a
detached garage could be built. There have been a few telephone
calls to her office inquiring about the request and a letter was
received today (May 15) from Nancy Souro and Linda Hoffer who
object because of precedents that would be set regarding lot
widths.
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Weeks asked where Hoffer and Sauro lived from the property in
question.
Johnson answered that they lived to the south on the same side
of the street.
Weeks asked if the house was under construction.
Matula answered no it was not, and that he would be the general
contractor. He stated that he was not here to exploit the
system.
Weeks asked when the variance issue first arose.
Matula answered that he had put the cart before the horse and
bought the lot first. He had the house configuration and had
come to the City with it--at that point the variance issue came
up. The floor plan is a colonial style and he has tried to
conform to existing homes in the area. Inside the structure,
there is no place to take away the two feet and keep
satisfactory room sizes.
Weeks noted that the plans included a three car garage plus
extra space for storage.
Matula answered that he has three cars, a 26' boat, snowmobile
• trailer, etc. He needs a large garage.
Weeks questioned Matula regarding the hardship.
Matula answered that three was no place to cut down the home
size to get the extra 2 feet.
Weeks asked if Matula bought the lot to accommodate the 82'
house.
Matula answered that he thought it would fit on the lot.
Weeks said that others lots were less in width. He said he did
not feel he had enough information and he was concerned with
setting a precedent.
Wilkus said he did not think more information would help him.
People next door to the property would need to design a smaller
home. The job of this Board is to find a hardship and he
personally can't allow it.
Anderson said she understands, but shares Wilkus's perspective.
She cannot see a hardship.
Akemann noted that there had been a similar request over a year
ago. This Board's function is to reduce or eliminate the
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variance. He cannot see a hardship. It can be reduced or
eliminated.
Johnson suggested that Matula see if the owner of the land would
sell 2 additional feet and replat.
Matula said that he had tried that unsuccessfully. This lot is
just what he has been looking for.
Akemann said a house could be built that conforms to the
setbacks requirements. A two car garage could be added now.
Freemyer noted the same concerns as the rest of the members.
Harvey said that there is an opportunity to prevent the variance
from taking place.
Matula said he had already utilized the increased depth idea
(making the garage deeper) .
Harvey said the Board needs to look beyond Matula's personal
desires. Strong grounds are needed to justify variances.
Options are: 1. Withdraw
2 . Continuance
3. Appeal to council
• 4. Ask for a vote
Freemyer told Matula that the City Council feels that they look
at variances with a different perspective. He could appeal to
the Council.
Matula said he did not want to create disruption within the
neighborhood. He said he would withdraw the request.
Harvey noted that variance request 92-006 had been withdrawn.
C. Reauest #92-007 submitted by Jim and Karen Duncan for property
located at 11228 Willowood The request is for a Shoreland
variance to allow enclosing of existing raised patio which is 86
feet from the ordinary High Water Level. (City Code Section
11.50, Subdivision 6 B. requires 100 foot setback
Robert Bottema, the builder for the Duncans, came forward to
present the variance request. He noted that he was representing
Karen and Jim Duncan. They were not aware of the infringement on
the 100' setback until the time of application for a building
permit. The Duncans want to have their patio enclosed (going
parallel and enclosing it) . The city had redone the surveys of
the lakefront properties and found an infringement had been made
on the property in the past. He has the original plans with him
presently.
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Johnson said that in 1983 the home was built. 'This property was
before the Board in 1983 for a tennis court setback. There is
swamp in between the home and the lake and there were mitigating
factors when the tennis court was built. She presented pictures
of the property for the Board's review. Mr. Duncan also owns
three lots surrounding this parcel. There had been no questions
from others.
Freemyer asked if the project was already under construction.
Johnson noted that it was and that the owner proceeded at his
own risk. They were willing to take the risk because otherwise
it would be too long without the use of their patio. Also,
safety reasons were cited when having family and friends over.
Wilkus said he cannot understand why construction proceeded,
especially when it was known it would come before the Board.
Akemann asked what the hardship was in this instance.
Bottema answered that the letter from the Duncans states the
hardship. They worried about someone falling off the patio.
Options would be to enclose the area or build a higher wall.
Akemann said it is difficult to approve something that has
already been started.
Bottema noted that someone else created this infringement, not
this owner. It was not shown in the survey when Duncan bought
the property. Even the Duncans were surprised that this was not
found when they bought the property. It was not caught by the
City until now.
Johnson said it is hard to visualize the problem when the lake
is 2501, away that a variance problem could exist.
Weeks said he had no problem with the request, but with the
process. Safety hazards are cited, but value is being created
here.
Anderson said she agreed with Weeks, this is a non-conforming
structure. She had questions on the process being used. It seems
that this is a "done deal". She had two questions:
1. How did it get missed earlier?
2. Did someone really tell them they should go ahead and
the variance would be granted?
Johnson answered that no assurance of a variance was given.
Anderson asked if anyone could go ahead and build a structure
even if it is against code.
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Johnson said no, that safety problems were involved here.
Anderson said that she felt that the issue of children's safety
is a small issue here. She has as much concern for that as
anyone else. Others get a cease order in these instances. Why
some and not others?
Johnson noted that safety reasons were cited.
Anderson said she was in favor of the variance and not the
process.
Harvey said that Johnson did call him regarding the request. She
was told that this was a safety hazard and that the owner wanted
to correct it. She told the builder that he was proceeding at
his own risk. Harvey had told Johnson that the Board should be
concerned before someone gets hurt. Harvey had told Johnson that
these things should be corrected. He had understood that it was
to be a sun room (an unobtrusive addition) , and was surprised at
this substantial addition. Johnson did not do this on her own.
Freemyer agreed with Weeks and Anderson by stating that he was
not opposed to the variance, but to the process (leaning on the
safety issue) . The solution to this type of problem is to not
start construction on something before approval. As far as the
structure being built this way originally, it is easy to make
• these errors. He had a problem with the building permit when a
variance needed to be granted first. This situation puts the
Board in the "bad guy" position, if the variance should be
denied after construction has started. He had no problem with
the variance, but did have problems with the process. A roof
will create a dramatic water run off. People should not be
allowed to start "at their own risk". In the variance before
this one, Matula could have started "at his own risk" too.
Harvey said that this owner did not cause this--it was
represented as a genuine safety issue. That served as the basis
for the decision.
Akemann felt there were other ways to do this without enclosing
the whole thing.
Argue said he was in favor, but this leaves a lot of questions
in his mind.
Anderson had questions about the letter from the Duncans.
Bottema said that the violation had been discovered in March.
Akemann felt that the Board had not been allowed to discuss
options. This request has been presented as a safety issue and
not a non-conforming structure issue. which is what it is.
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MOTION: Wilkus moved that the Board approve Variance Request
92-007 for a variance from the ordinary high water level. The
existing structure is non-conforming and the variance will allow
for correction of a building code violation for the safety of
the structure. Anderson seconded the motion and the motion
passed 6-1 with Akemann opposed on the grounds that there were
other ways to mitigate without enclosing the porch.
D. Request #92-008 submitted by Northern Healthcare Associates for
property located at 14400 Martin Drive Eden Priairie
Minnesota. The request is to allow 90% of the building to be
used for office and accessory uses (City Code Chapter 11
Aection 11.30, Subdivision 3 , C. limits ofice use in
Industrial Districts to no more than 50% )
Michael Duffy appeared to present the request for Northern
Health Care Associates. He explained that the hardship in this
instance was that 90% of the building is used for office and
accessory uses. If it were to be destroyed by fire, it could not
be rebuilt for the same use. If it should be sold, it will not
be in compliance with zoning.
Johnson noted that in early 1982, the City allowed permitted
uses to include all public and quasi public uses. Treatment
facilities were considered quasi public uses. Later, in 1982,
the language was changed and this use became non-conforming. It
• did change owners in 1986, but it was the same type of facility.
If the structure were to change uses now, it could be used for
50% office use. The building could be transferred into
office/warehouse use. The variance is desired to make it a legal
use. Several people had called, but none were opposed. No
parking problems have been noticed to date. Exterior materials
meet code.
Harvey asked Duffy why they were asking for the request. At this.
time, they are grandfathered in.
Duffy answered that he was aware of that, but if the building
were ever to burn down, it could not be rebuilt. The problem
would arise if it were to be sold.
Harvey asked if the variance request was for the building,
rather than the user of the building.
Duffy answered that was correct.
Wilkus asked about the parking spaces at 90% office use,
Johnson answered that 77 stalls would be needed. This is
adequate parking for this type of business. If another type of
business should come in, it would not meet conditions.
•
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Argue asked if this were approved, would a precedent be set?
• Johnson answered that precedents have already been set. There
are 5 or 6 buildings in Eden Prairie like this one.
Argue asked why the ordinance was established.
Johnson answered that it protects pure office space. This was a
legal use at the time. It is now considered office and
accessory.
Freemyer asked about people residing in the building--people
come in from out of town with no cars. That may be why there is
no parking problem now. He felt that since non-conforming use is
now permitted, it should be left as it is. If a situation should
come up in the future, then the variance should be requested.
There are many unknowns with this request and he was not in
favor of it. He noted that this request was for the variance to
go with the property and not the tenant. He asked if this was a
financing situation.
Duffy answered "not really. " He said it had been foreclosed upon
by a lending institution.
Freemyer felt there may be a parking situation in the future.
• Johnson said that the city has control by issuing certificates
of occupancy. Staff goes out and counts spots quite often in
parking lots.
Akemann said he had a tough time with temporary office, I-2, and
permitted non conforming use.
Johnson said it was a permitted use before. The City changed
code. The applicant would like the variance to run with the
property and not the tenant.
Duffy said that if the variance is not granted now, there is no
assurance that the building could be rebuilt. There is no
incentive to make improvements. If it were to be resold for the
same purposes, the concern on the office space would not exist.
Eventually (down the road) it may be resold.
Argue felt the problem should be dealt with when it arises.
Harvey added that it is difficult to understand Duffy's concern
on the sale of the property. The variance is good for the
present use.
Johnson said that if it burned down, a similar business could
not be constructed.
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Wilkus asked if the building were to burn down, wouldn't the
land be useless if the building could not be rebuilt? Land is
expensive in Eden Prairie.
Akemann asked if this was considered spot zoning.
Duffy said that each person at this meeting probably carries
home insurance. The proponent is asking for some type of
"insurance. "
Johnson said it is difficult to get fire insurance if the
property is non-conforming.
Freemyer said that possibly the insurance question could be an
issue, since the issue tonight is hypothetical.
Harvey noted that the owner is not being denied the use of the
property.
Wilkus asked if the right to rebuild was being denied.
Johnson said no, it could be rebuilt as industrial.
Wilkus said that the Board does not know the proponents intent.
Duffy said that there are two ways to look at the situation:
• 1. Future: the event has not occurred.
2. Present: Unmarketable, no assurance of variance.
Johnson said it has limited marketability because it is
encumbered.
Duffy said if it were to be destroyed, there will be no
assurance that a variance will be granted.
Freemyer asked how many other non-conforming there were? There
must be a significant number.
Johnson said that possibly the unknown ones would be
significant. The little red grocery store was another non
conforming use.
Freemyer felt the proponent should come back and expand on the
issues.
Wilkus said that the Board would be granting continued use of
90% office. The City can limit the parking to 62 stalls in the
future.
Johnson said that the building could go to less than 90% office
use, but never more.
•
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Akemann was concerned about the parking spots.
Duffy said that presently, 50-60% is used for office.
Johnson said that 11,000 square feet could be used as office
use.
Johnson suggested 60% office, 30% accessory and 10% gym.
Harvey asked if this was acceptable to Duffy.
Duffy asked for a continuance to next meeting.
MOTION: Weeks moved that the Board continue the request to the
next meeting (May 20) . Akemann seconded the motion and it passed
unanimously.
IV. OLD BUSINESS
Discussion took place on the City meeting.
The Grossman Chevrolet request was discussed.
Harvey noted that the Board gave a lot of input.
• V. NEW BUSINESS
Johnson noted that the next meeting would be next Wednesday
evening.
Anderson asked who is allowed to present variances at special
meetings. Why wasn't there a special meeting when the safety of
children was involved? Some criteria is needed for special
meetings.
Weeks said a process question had come up this evening. The
building has an accepted non-conforming use. Can a request be
made before a purchase?
VI ADJOURNMENT
MOTION: Argue moved that the Board adjourn. Wilkus seconded the
motion and it passed unanimously. Meeting adjourned at 9:57 P.M.
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