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HomeMy WebLinkAboutBoard of Adjustments and Appeals - 06/08/2000 APPROVED MINUTES BOARD OF ADJUSTMENTS &APPEALS THURSDAY,JUNE 8, 2000 7:00 P.M. CITY CENTER Council Chamber 8080 Mitchell Road BOARD: Cliff Dunham, Chairperson; William Ford; Louis Giglio; Ismail Ismail; Michael O'Leary and Mary Vasaly STAFF: Jean Johnson, Zoning Administrator Richard Rosow, City Attorney Kevin Schmieg, Building Official Carol Pelzel, Recorder GUESTS: John Cvetnic, 6955 Mariann Drive; Nathan Bergeland, 7012 Willow Creek Drive; David Hellmuth, Attorney; Sherry Adam, Edina Realty CALL TO ORDER Chairperson Dunham called the meeting to order at 7:05 p.m. ROLL CALL—PLEDGE OF ALLEGIANCE Present: Cliff Dunham, William Ford, Louis Giglio, Ismail Ismail, Michael O'Leary and Mary Vasaly(arrived at 7:15 p.m.) Absent: No one I. APPROVAL OF AGENDA Giglio asked that the agenda be corrected by eliminating B. 1.,which is a duplication of B.2., in Request#2000-07. He suggested that the items be renumbered as 1. a. and b. and 2. Motion/Second: Giglio/O'Leary, to approve the agenda as amended. Motion carried, 5-0. II. APPROVAL OF MINUTES Minutes of May 11,2000. Motion/Second: Ismail/O'Leary, to approve the May 11 minutes as published. Motion carried 5-0. Minutes Board of Adjustments &Appeals June 8, 2000 III: VARIANCES A. Request#2000-06 by John and Roberta Cvetnic for 6955 Mariann Drive for approval to construct a third-stall garage 11.4 feet from the side lot line (Code requires a 15-foot minimum setback). John Cvetnic, 6955 Mariann Drive, appeared before the Board explaining that he is requesting approval of a variance to change the setback requirements on the south side of his lot from 15 feet to 11.4 feet to allow him to add a third stall to his double garage. Cvetnic presented photos of his house and the existing garage. He is proposing to add a 14-foot wide third stall for storage of his boat. He currently stores the boat on the apron near the street. Cvetnic pointed out that the 14-foot width is the minimum he could consider to accommodate either the boat/trailer or Chevy Suburban. Cvetnic said he has talked to his neighbors and has signatures from 14 neighbors supporting the request. Jean Johnson presented the staff reporting stating that the property is zoned R1-22 which requires a 15-foot minimum side yard setback. This home does have an existing 24' x 24' garage back 25.4 feet from the side lot line. The applicant is requesting a 14-foot wide addition for a third stall garage. The only option available to the applicant is to reduce the width of the addition. Johnson reported that notices were mailed to the surrounding property owners and the City did not receive any comments from those neighbors. In response to a question from Ford, Cvetnic explained that on his street there are approximately ten houses and of those two have three-stalled garages. Dunham opened the public hearing. Having no one appear,Dunham closed the public hearing. Giglio said he does support this request with the hardship being the topography of the land,which does not allow for an alternate location of this addition. Ismail said he concurs and stated that the backyard is rather steep. Motion/Second: Giglio/Ismail to approve Request#2000-06 with the stated hardship being the topography of the land, which does not allow the applicant an alternative location for the addition. The motion carried, 5-0. B. Request#2000-07 by Nathan D. Bergeland for 7012 Willow Creek Road to grant the following variances for the existing non-conforming house and gazebo: 1. Grant the following variances for the existing non conforming house and gazebo: a. A setback of 40 feet from the Ordinary High Water Mark of Bryant Lake for the house. b. A setback of 0 feet from the Ordinary High Water Mark of Bryant Lake for the gazebo. (Code required setback is 100 feet for structures). 2 Minutes Board of Adjustments &Appeals June 8, 2000 2. To alter the non conforming house structure by removing a one story portion of the house and constructing in its place a two story addition 60 feet from the Ordinary High Water Mark (required setback is 100 feet). Code allows only routine maintenance and repairs on non-conforming uses.) 3. To permit repair, remodeling and improvements to the existing non-conforming house and gazebo. The proposed work includes electrical installations, replacement of roofs and insulation, construction of a two story addition, and new fixtures, doors, windows, cabinets, flooring, stove&venting, gas fireplace, and siding. (City Code, Sec.11.75 NON-CONFORMING USES, STRUCTURES AND SIGNS. Subd.1. Purposes. This Section is intended to limit the number and extent of non-conforming uses by prohibiting their enlargement, their re-establishment after abandonment, and the alteration of restoration after destruction of the structures they occupy. Eventually, certain classes of non-conforming structures of nominal value, and certain non-conforming signs are to be eliminated or altered to conform. Subd.2 Continuation and Maintenance. A. Except as otherwise provided in this Chapter, a use, lawfully occupying a structure or a site on the effective date of this Section or amendments thereto that does not conform with the use regulations or the site area per dwelling unit regulations for the district in which the use is located shall be deemed to be a non-conforming use and may be continued except as otherwise provided in this Section. B. Non-conforming uses must comply with all regulations for off-street parking and loading, screening, landscaping and performance standards. C. Routine maintenance and repairs may be performed on a structure or site the use of which is non-conforming and on a non-conforming structure.) 4. Appeal the order of the Building Inspector requiring the removal of the gazebo or the relocation of the gazebo to a location meeting setbacks. (Vasaly arrived during discussion of this item.) Nathan Bergeland, 7012 Willow Creek Road, explained that he purchased the property with the understanding that he would remodel and improve the property. Bergeland stated that there is a lot of leaking of the roof occurring as well as problems with the integrity of the siding. Bergeland pointed out that he is not intending to change the plat, however,he is requesting to extend the structure upward to provide for a sloping roof. Bergeland said he is requesting to put on a new roof, new siding, as well as add some new windows to give the structure a more aesthetic flair. Bergeland said he would also like to put in a wooden floor in 3 Minutes Board of Adjustments &Appeals June 8, 2000 the dining room, new cabinets in the kitchen and to possibly open up the basement area. His main intent is to update the home. Bergeland said that regarding the Gazebo, he did do some repairs in order to maintain the integrity of the property. He explained that he was having a party and the Gazebo was not safe to use and he, therefore,braced up the building. He was not aware that a permit was necessary for the type of work he was doing. Again, Bergeland said he is not intending to change the structure of the Gazebo or to build outside of that structure but to maintain the integrity of it. He would like to put windows in instead of screens and to update the electricity. David Hellmuth, Attorney for the applicant, distributed pictures of the subject property. He explained that Bergeland's primary goal is to maintain and repair the existing structures. The siding needs to be replaced as well as the windows which are poorly sealed and don't open. They are requesting clarification as to what the applicant can legally do under the exclusion of the Code in order to maintain the property. The roof could be replaced with a flat roof,however, a better solution would be to eliminate the existing deck area and to build up and make it a sloping roof that matches up with the normal roof of the structure. Hellmuth said he did review the Staff's report and has responded to that. He feels the basis for denying this request is not adequate. The primary issue with the denial is that 90% of what they are proposing is maintenance and repair which falls within the exclusions. They may go a little beyond that by correcting what could be a long-term problem. Ismail said he feels that removing a portion of the house and adding two rooms is beyond repair and maintenance. Bergeland responded that the only way to maintain the integrity of the structure would be to remove a portion of the house and build up to replace it. He would like to eliminate the roofing where the deck exists because they believe that wood is rotted. Bergeland estimated the exterior stucco work would be approximately$80,000, $30,000 for roof repairs, $30,000 for windows. Dunham inquired if the house had been thoroughly evaluated by a professional in order to identify building repairs needed beyond what is listed? Mr. Bergeland responded negative. In response to a question from Giglio, Bergeland explained that it is his intent to take care of the septic system should this request be approved. Vasaly asked if Bergeland was aware that the house and Gazebo were non-conforming when he purchased the property. Bergeland said he did not. In December a neighbor told him about the Developer's Agreement on the property. Vasaly asked if Bergeland has considered tearing down the existing structures and building a new home. Bergeland responded that he likes the existing structure and he anticipates the cost would be 4 Minutes Board of Adjustments &Appeals June 8, 2000 considerably more than what he is currently proposing to do to the existing structure( an estimated $200,000-$300,000 for repairs). It would also involve his having to find temporary housing while the existing home is tore down and the new one is built. Hellmuth pointed out that the cost to build a new home would be substantial and would require substantial excavating to build a house similar to the size of the existing house. Vasaly said it appears to her that the applicant is proposing more replacement than repair of the house. Richard Rosow, City Attorney, explained that the Developer's Agreement does not play a role in this request. The request is because of the Shoreland Ordinance. The house and gazebo are non-conforming uses. The applicant is requesting a variance to do maintenance and repair above and beyond ordinary maintenance and repair. Items beyond ordinary maintenance and repair require building permits. Rosow stated that should the Board approve the variances requested, they must determine hardship. Also, if the Board grants the variance it should be conditioned on the amendment of the Developer's Agreement. The Board must also decide if they will overrule the decision of the Building Official regarding the gazebo. It is impossible to put the gazebo back into the condition it was before the repairs were made. The alternatives are to remove it from the property or to move it back beyond the setbacks so it is a conforming structure. Giglio asked what routine maintenance and repairs include. Rosow responded that the Building Official would determine what is permitted. Kevin Schmieg, the City's Building Official, described the work that was done on the gazebo by Bergeland. Rosow explained that the Board is being asked to act on two separate matters. The first action is to act on the variance request and the second is to affirm or overrule the decision of the Building Official. Vasaly asked if the variances are approved would anyone else be allowed to build on the other lots. Rosow responded that future development could not occur unless the Development Agreement was changed. Jean Johnson presented the staff report reporting that the main issues are the setbacks from Bryant Lake. The applicant is also requesting to alter the non- conforming house, and a list of the repairs and improvements are included in the applicant's submission. The other requested action is on the Building Official's order for the removal of the gazebo or relocation. Johnson reviewed the background of this request. Notices were mailed to surrounding property owners. Staff did not receive any written comments from neighbors. Dunham opened the public hearing. Sherry Adams, realtor with Edina Realty, explained that she represented Mr. Bergeland when he purchased this property. The gazebo added tremendous charm to the property. They were never informed that these structures were non- 5 Minutes Board of Adjustments &Appeals June 8, 2000 conforming and the Title Company did not disclose any such information. Adams pointed out that the applicant's total intent when he purchased the property was to remodel it. The seller was aware of this and agreed to provide him with the plans. Being no one else requesting to speak, Dunham closed the public hearing. Ford said he does not support the variances due to the list of repairs and improvements to the non-conforming structure, it is a significant amount of money. The intent of the ordinance is that non-conforming structures are not to be improved and he does not feel that the variances meet the intent of the Code. Ford said he does have a more difficult time in deciding how the gazebo should be handled. The applicant may have done more than ordinary maintenance to the gazebo, a hardship may be present. O'Leary said he feels Bergeland is being penalized because he purchased the property not knowing it was non-conforming. With regard to the changes to the gazebo,he only increased the structure integrity and O'Leary said he did not feel that Bergeland should have to tear it down or remove it. O'Leary stated that he feels the Code is too rigid. The reason for the extensive maintenance needed is because regular maintenance was not done. The applicant was not aware that he could not make the improvements he is proposing. O'Leary said he supports a major portion of the variances. He does not necessarily agree that the applicant should be able to build an additional bedroom but he should be able to replace siding and windows. Vasaly pointed out that the purpose of the Code is to eventually eliminate non- conforming uses. O'Leary said he feels it is an undue hardship to the applicant since he did not know the structures were non-conforming. Ismail said he has difficulty in accepting the premise that the applicant did not know that he could not make improvements to the property. Ismail indicated that he would not be able to support the variances being requested. Vasaly said that testimony presented this evening gives her the impression that this is not a house that can be fixed up with routine maintenance. The applicant himself has stated that it is difficult to call this situation a hardship. Vasaly said she could not support the variances requested. Dunham explained that he is not in favor of the variances requested for either the house or gazebo. The house is in need of major repairs. Dunham said he feels the applicant has made substantial changes to the gazebo. Board members discussed Action I, item 3.e., of the staff report regarding the applicant's knowledge of the property's condition at time of purchase. Clarification on the item was asked. Richard Rosow, City Attorney,responded reference is to the owner's knowledge of the property's physical condition. 6 Minutes Board of Adjustments &Appeals June 8, 2000 The consensus of the board members was to insert the word `physical' before the word condition in item (e). Motion/Second: Ford/Vasaly, to deny Variance Request#2000-07 based upon the following findings: (a) The alterations proposed for the house and gazebo are significant and exceed routine maintenance and repair allowed by City Code for non-conforming uses. (b) There are no circumstances unique to the property that justify granting the variances and thereby altering the previously approved plan. (c) There has been no showing of"Undue Hardship" as defined in the City Code, Section 11.76, Subdivision 1. (d) The property can be put to a reasonable use if used in conformance with the City Code. (e) The property owner purchased the property with knowledge of the physical condition. (f) At the time the property owner purchased the property it was a non- conforming use under the City Code. (g) The variances requested are significant and do not meet the spirit and intent of the City Code,which contemplates the eventual elimination of non- conforming structures. (h) The variances requested do not adhere to Section 11.50 of the City Code providing for shoreland regulation,which contains required structure setbacks from a lake's Ordinary High Water Mark. (Motion carried 6:0) Motion/Second: Vasaly/Ismail, to affirm the decision of the Building Official regarding the gazebo. The motion carried, 4-2 with Ford and O'Leary voting nay. IV. NEW BUSINESS Johnson reported that currently there are not items to be considered by the Board for their July meeting. VI. ADJOURNMENT Motion/Second: Vasaly/Ismail, to adjourn the meeting at 9:25 p.m. Motion carried, 6-0. 7