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HomeMy WebLinkAboutBoard of Adjustments and Appeals - 04/09/1998 APPROVED MINUTES BOARD OF ADJUSTMENTS AND APPEALS THURSDAY, APRIL 9, 1998 7:30 P.M. CITY CENTER COUNCIL CHAMBERS 8080 MITCHELL ROAD BOARD OF APPEALS MEMBERS: Chairperson Kathy Nelson,Louis Giglio, Cliff Dunham,William Ford,Michael O'Leary, and Ismail Ismail. BOARD STAFF: Zoning administrator,Jean Johnson City Attorney, Richard Rosow CALL TO ORDER Chairperson Nelson called the meeting to order at 7:36 p.m. ROLL CALL Board Member Dye was absent. • I. SWEARING IN OF NEW BOARD MEMBER ISMAIL ISMAIL Chairperson Nelson introduced Ismail Ismail as the Board's newest member. She asked Mr. Ismail to read the sworn oath. Mr. Ismail read as follows: "I, Ismail Ismail, do solemnly swear that I will support the Constitution of the United States and of the State of Minnesota, and faithfully discharging the responsibilities placed upon me by the Board of Adjustments and Appeals of the City of Eden Prairie, County of Hennipen, and the State of Minnesota, to the best of my judgment and ability, so help me God." II. APPROVAL OF AGENDA Motion: Ford, seconded by O Leary to approve the agenda as submitted. Motion carried 6-0. III. APPROVAL OF MINUTES -March 12. 1998 Chairperson Nelson asked for corrections or additions to the Board of Adjustments and Appeals meeting minutes of March 12, 1998. NO Corrections or additions were considered. Motion: O Leary, seconded by Dunham to approve the March 12, 1998 Board of Adjustments and Appeals minutes as submitted. Motion carried 4- 0- 2(Dunham,Ismail abstain). BOARD OF ADJUSTMENTS AND APPEALS April9, 1998 Page 2 IV. VARIANCES A. Request No. 98-05 by Moynihan Builders, Inc. For 10220 Homeward Hills Road for approval to move the house located at 9950 Pioneer Trail to 10220 Homeward Hills Road and place the home at a 29 foot front-yard setback to Homeward Hills Road(City Code requires a 30-foot setback). This variance was continued from the March 12, 1998, meeting. Beth Simenstad, of Trek Development 10396 Bluff Road, Eden Prairie, representing the Hustad Companies, owners of the house located at 9950 Pioneer Trail and the property that the house is to be moved to at 10220 Homeward Hills Road, made her presentation as follows: The Hustad Companies have owned the property located at 10220 since 1978. They are requesting permission from the City of Eden Prairie to move the house currently located at 9950 Pioneer Trail to the Homeward Hills address. The Homeward Hills address is zoned Rl which requires a 30 foot setback from the . road right-of-way. The one-foot variance request is required to accommodate a William's Pipeline, pipeline easement that is currently located on the Homeward Hills property. Upon completion of the actual moving of the existing building, the relocated home will be totally remodeled, including: new paint inside and out, new black top driveway, new furnace and water heater, new sod, new sidewalk and front step, and hook-up to available sewer and water. The targeted selling price of the home will be in the range of$160,000, which is compatible with other homes in the neighborhood. The home has 2500 sq.ft of finished living space including three bedrooms, two bathrooms, and daylight windows in the basement. Chairperson Nelson returned the floor to the Board for questions. Dunham asked if anything, such as a driveway, could be built on the easement. Johnson stated no structures could be on the easement. Giglio asked for clarification as to when the house that is to be moved was built. . Ms. Simenstad told the Board the home had been built in the late 60s or early 70s, contrary to earlier information the Board had received that the home had been built ` BOARD OF ADJUSTMENTS AND APPEALS April 9, 1998 Page 3 in the late 70s. Ismail and Ford asked if the home to be moved would be compatible in style to the homes in the neighborhood that it is being moved to. Ms. Simenstad said the home would be older than most of the homes in the neighborhood. The materials that the home is made from is very compatible with the surrounding homes. She added Hustad would be willing to paint the home in new more current colors. Nelson asked if the roof would be replaced. She also expressed concerns about the garage elevation being lower than that of the home. Mr. Moynihan told the Board the roof had been replaced recently. The property elevations were reviewed to show the Board that there was only a one-foot difference in elevation between the home site and the garage site. Ms. Simenstad stated that the builder has weighed the cost of moving and remodeling the home and they feel the project is financially viable. Nelson told the Board that she had done a personal inspection of the property that the home is being moved to. "While her car was parked at the site," she said, 'one car swerved in order to avoid hitting her and another car almost did hit her. It is not a great place to sit and have cars parked or to have cars parked for people that might be visiting the site." Nelson said she hod serious concerns about having the homes driveway back out on to Homeward Hills Road. Nelson asked for the staffs report. Johnson reported as follows: In addition to the information that was presented at the March meeting the City has received inquiries as to whether the house is already sold. Johnson directed the Boards attention to the list of conditions attached to staffs written report. These conditions pertained to the Bond, or letter of credit that would insure that the house gets moved gets, placed on the lot properly and that all scheduled work would in fact be finished as planned. Nelson opened the floor to the Board for questions of staff. BOARD OF ADJUSTMENTS AND APPEALS April 9, 1998 Page 4 Ismail asked staff if the homes age could be a condition of denial. Johnson told the Board that the home being ten-years old or older could be a reason of denial. If the Board felt that the structure and character of the home is not fitting for the new locale denial could be based on those reasons. She added that the homes on the west side of Homeward Hills had been built during the time period of 1981-1988, and on the east side of Homeward Hills the homes had been built from 1991 up to the present time. Nelson opened the floor for the public hearing. No issues were considered from the public. The floor was returned to the Board for its discussion. Ford stated his main concern is how the house will fit into the existing neighborhood. After viewing the pictures that were presented he said he felt comfortable with the project as proposed. Dunham agreed with Ford's assessment. He stated that the driveway exiting on to Homeward Hills was not a good scenario. Ismail stated he was uncomfortable with the project because of the driveway layout. Ms. Simenstad stated a T-turn around on the driveway stipulated in the staff report as solution to the Board's safety concerns. O'Leary stated the home would blend in with the existing neighborhood. He added he liked the idea of the T-turn around on the driveway and asked Johnson if the on-street parking could be restricted as an added safety precaution for this site. Johnson stated that in addition to the t-turn around there could be guest parking stalls added to the driveway. She said the City would have to do an evaluation of the street in order to restrict on-street parking. Signs could be installed that warn of driveways that are located in the area. Giglio said he would be in favor of the project with the stipulation of adding the appropriate street signage and the T-turn around on the driveway. Nelson expressed her concerns about the driveway backing on to Homeward Hills. BOARD OF ADJUSTMENTS AND APPEALS April9, 1998 Page 5 Motion: Giglio, seconded by O`Leary to approve Request No. 98-05 by Moynihan Builders, Inc. for 10220 Homeward Hills Road for approval to move the house located at 9950 Pioneer Trail to 10220 Homeward Hills Road and place the home at a 29-foot front yard setback to Homeward Hills Road(City Code requires a 30-foot setback), with the following conditions: 1. The contractor acquire all required permits. 2. The driveway be wide enough to allow for addition guest parking 3. The City be asked to evaluate the placement of driveway signage for the street 4. The builders list of work to be done, as submitted with the application, be completed 5. The builder furnish the appropriate bonding or letter of credit as outlined in staffs recommendation, and as required by code. The hardship being the Williams Pipeline easement which prevents the house from being located in the proper place on the property. Motion carried 5 - 0. B. Request 98-06 by Richard Haefele, Fee Owner and Jennifer Coughlin, Solid Foundations Program director, appealing a decision of City Staff which finds that the multi-family non-conforming use at 7170 Bryant Lake Drive has been abandoned. Mr. Haefele gave his presentation as follows: Mr. Haefele told the Board he has been the owner of the subject property for the last 13 years. At the time he acquired the property, in 1985, it was a non- conforming duplex. After taking ownership, the property was leased to a facility named Welcome Home, a group home licensed by the State of Minnesota, funded by the Hennipen County. No significant problems were experienced over the period of time that Welcome Home operated the facility. The issue of abandonment of the facility's use as a group home came about when Welcome Home lost its operating license in 1994. The current manager at that time continued to live in the house on a rental basis and did so up until January of 1996. At this point the property was listed for sale. The original sale listing was for investment property describing the home as a group home. In early 1997 the listing was changed to a single-family home. A list was enclosed in the meeting packet which described the large number of people and agencies that were contacted trying to find an operator of a reputable group home type program that might be interested in buying the home. Mr. Haefele told the Board that during the month of August of 1997, Solid Foundations was given permission to operate the home with a maximum BOARD OF ADJUSTMENTS AND APPEALS April 9, 1998 Page 6 occupancy of the home limited to six residents. In September of that year the neighbors next to the home raised the issue of abandonment with the City staff. The City in turn contacted Mr. Haefele and asked him to address this issue of abandonment. Mr. Haefele contended that when the property was on the market, it had always been marked as a group home. He told the Board that as early as last spring FEMA had contacted the realtor listing the property to see if the property would be available to house some of the dislocated flood victims from the Red River floods. FEMA was notified that the property had been issued to permits to house up to 16 people, as a group home, by the City of Eden Prairie. The State of Minnesota and Hennipen County have approved the program plans and the physical preparations of the building. If Eden Prairie revokes the current zoning, it would devalue the property by one half. The property was rented to a Mr. Braun on a month-to-month basis from July of 1997 through December of 1997, with the agreement that the owner was looking for another group home program to occupy the facility. Mr. Haefele said that this rental situation was done as a matter of courtesy to the renter and not with the intent to abandon the property from its intended use; that being the group home. Chairperson Nelson reminded the Board and the citizens in attendance the issue was not a "question of programs, whether it is single-family and has a six-member program, or it is the non-conforming use and has ten or more in the program. The program exists. This is a case of whether the non-conforming use has been abandoned. This is a real estate situation more so than it is a program situation." She added, "issues concerning the program would not be relevant to the case before the Board." Jennifer Coughlin, 6901 Bethia Lane, Brooklyn Park, representing Solid Foundations, gave her presentation as follows: Ms. Coughlin gave a brief history on how she had met Mr. Haefele and how she had made her proposal to him in regards to running her group-home program out of his facility; at that time unoccupied. All government agencies were contacted and approval to operate the group home facility was granted. The physical building was brought up to all City and State codes. At the current time the home can operate as a single-family home with a maximum of six residents. Ms. • Coughlin is licensed as a 'Rule 8", which allows her to run a program of up to ten residents. State requirements stipulate a maximum of five residents per bathroom BOARD OF ADJUSTMENTS AND APPEALS April9, 1998 Page 7 facility in any group home. The facility currently has three bathrooms and any future occupancy would be limited to a total of 15 residents because of the bathroom use restrictions. Nelson returned the floor to the Board for questions. Mr. O`Leary asked who was responsible for funding the group home. Ms. Coughlin told the Board that Hennipen County was responsible for funding the program. Mr. Dunham asked if there was a live-in supervisor. Ms. Coughlin told the Board that the facility is staffed 24-hours a day. Mr. Ismail asked if the residents came from the immediate or surrounding communities. • Ms. Coughlin told the Board that the residents are placed on a state-wide basis. Chairperson Nelson asked the report from staff. Zoning Administrator Johnson gave her presentation as follows: It was the staff s opinion that the nonconforming multiple use of the property has been abandoned and the items and factors relating to this decision were outlined as follows: "The case for abandonment of the nonconforming use is based primarily upon three factors: I. The non-use of the property since the middle of 1994 for a group home facility. 2. The listing of the property for sale as a single-family residence in April, 1997. 3. The rental of the property to a single person in August, 1997. Johnson then reviewed the items supplied to the Board in their mailed packet. • A letter dated April 7, 1998 from a resident that lives near the home was presented as new information that evening. BOARD OF ADJUSTMENTS AND APPEALS April9, 1998 Page 8 City Attorney Rosow gave his presentation as follows: Mr. Rosow stated it was the Board's responsibility to find from the facts presented that there was an intent to abandon the multi-family use of the facility. The Board was not bound by the facts that were found by the City Attorney's Office. An analysis was made of the law and information that was gathered from the proponent. The conclusion was made as stated by Ms. Johnson in her report. "The lack of use as a group home, the listing of the property for sale as a single- family residence and the rental to a single person evidence an intent on the part of the owner to abandon the nonconforming multi-family residence use of the property. Continued efforts to market the property for group home purposes after April, 1997 when it was listed for single-family purposes and the explanation of Mr. Scheib, the listing realtor<that the listing as a single-family residence was done to attract more interest from group home users, does not necessarily demonstrate a continued intent to utilize the property for nonconforming use purposes. Likewise, the apparent understanding that Mr. Scheib had with the single occupant of the property that it was the subject of an ongoing interest by a potential buyer to be used for group home purposes does not negate a finding of abandonment, as group home uses are allowed in single family residential districts. Similarly, maintenance of the facility, its use for meetings, and maintaining an office phone does not evidence an intent to continue to use the property for multi- family purposes. These actions are not inconsistent with abandonment of the use of the property as a multi-family residence." Chairperson Nelson returned the floor to the Board for questions. Mr. O Leary asked Mr. Rosow what ramifications would result from finding that the property use had been abandoned. Mr. Rosow told the Board the property would be limited to a single-family group home occupancy of not more that six residents. Mr. Ismail asked if there was a specific time frame that defined abandonment. Mr. Rosow told the Board that there is not a defined time period but there is case law that supports a one-year period, if the nonconforming use has not been used for that purpose for one year, the courts have said this would be evidence of abandonment. This is a Statute that applies to counties. There is no municipal enabling act that has the same provision in a similar statutory scheme that governs • municipalities. All situations are fact specific. BOARD OF ADJUSTMENTS AND APPEALS April 9, 1998 Page 9 Mr. Dunham asked Ms. Johnson to summarize the October 14, 1997 letter from the City that granted Solid Foundations permission to operate the facility. Johnson told the Board the letter in refence was issued without knowing the fact that the MLS listing on the home had been changed to reflect a single-family home status, and also the renting of the facility to a single individual. Chairperson Nelson opened the floor to the public hearing. Mark D. Wisser, Esq., retained by the neighborhood at Crown Oaks and Willow Creek Road, issued a statement supporting the fact that the property use has been abandoned. He stated he agrees with the City Attorney's findings and added, "as a matter of policy, nonconforming uses are limited exceptions to municipalities' power to regulate land use. In other word, the only reason that this use was allowed to continue, after the zoning ordinance classified this property as rural, was because it created a change. The law favors consistency with what the municipality has decided. Therefore, failure to continue that use argues in favor of • abandonment to achieve the goal of having consistent overall ability of the municipality to implement as planned." The nonuse from 1994 to 1997 shows an intent to abandon and there was failure to continue. Brian Duois, 7161 Willow Creek Road, spoke in opposition of allowing the nonconforming use to continue, citing the fact that the home had been listed in the MLS as a single-family home. He said, "Minnesota Statute 394.36 clearly states, and this is out of the Northwestern Reporter, the discontinuation of a nonconforming use for one year results in termination of that use." Dick Seidenstricker, 7221 Willow Creek Road, spoke in opposition of allowing the nonconforming use to continue. He, too, cited the fact that the home was listed as a single-family home in the MLS listing service. Gretchen Doctor, 7032 Willow Creek Road, spoke in opposition of allowing the nonconforming use to continue. She told the Board if she and her family were aware that a multiple group home would be allowed in the area they would not have bought their home. Bob Sparby, 7261 Willow Creek Road, spoke in opposition of allowing the nonconforming use to continue. He cited the lack of supervision from the group home staff as his reason for opposing the project. • Jim Beals, 9465 Amesberry Lane, spoke in opposition of allowing the BOARD OF ADJUSTMENTS AND APPEALS April 9, 1998 Page 10 nonconforming use to continue. He told the Board the facility had been abandoned and not used as intended for a period exceeding the one year period of nonuse. Chairperson Nelson closed the public hearing and returned the floor to the Board for their discussion on the issue. Dunham asked the audience if they could state why they would not be opposed to six residents but would be opposed to sixteen residents. Susan Sparby, 7261 Willow Creek Road, told the Board the property did not offer enough useable flat yard for the children to play in. There is also a safety issue of the children walking the streets. O'Leary asked if it would be possible for the Board to limit future use of the facility to no more than ten residents. Johnson stated the notice of hearing had not addressed any issue of limiting numbers. Rosow stated no conditions could be put on the decision that the Board is charged in making on the appeal. The issue was to be resolved with a "yes or no" decision. The state regulates numbers in group homes. Ismail said he would support adding some conditions if it was possible. Dunham stated he was having a hard time agreeing with the facts that the City is using to prove abandonment. Giglio stated that the owner ignorance of law should not be a reason to prove the property was intentionally being abandoned. He said he agreed with the City Attorneys Findings of Fact. O'Leary agreed with Giglio's comment that ignorance of the law is not a reason to claim the property was not being abandoned. Ford stated he could not agree with the City Attorney's Findings of Fact. Nelson stated that the home has been physically changed to accommodate a single- family use. She agreed with the City Attorney's conclusion that the nonconforming use had been abandoned. The fact that the owner tried to sell the property as a iBOARD OF ADJUSTMENTS AND APPEALS April9, 1998 Page 11 single-family home, as evidenced by the MLS listing, strengthens this conclusion. Motion: Giglio, seconded by O'Leary to support the staffs conclusion in the memo dated February 13, 1998 and find abandonment of the non-conforming use at 7170 Bryant Lake Drive and determine the property to be a single family non-conforming use. Findings of Facts are as follows: The evidence of abandonment is based on: l. The group home ceased to be a group home and remained unused for a period of more than a year. 2. The home was listed for sale as a single-family residence 3. The property was rented as a single-family residence for a period of time. Motion carried 3 - 2 - 1(Ismail abstained; Dunham and Ford voted nay). Chairperson Nelson told the applicant there is a 15-day time limit to appeal the decision to the City Council. V. OLD BUSINESS No old business was considered. VI. NEW BUSINESS A. Election of Offices Ford nominated Nelson as Chairperson, Dunham as Vice-Chairperson and Giglio as Secretary. Nelson, Dunham, and Giglio accepted the nominations. The nominations were passed unanimously. VII. ADJOURNMENT Motion: Ford, seconded by Giglio to adjourn the meeting. Motion carried 6- 0. The meeting was adjourned at 9:40 p.m.