HomeMy WebLinkAboutBoard of Adjustments and Appeals - 07/14/1983 APPROVED MINUTES
BOARD OF APPEALS AND ADJUSTMENTS
THURSDAY, JULY 14, 1983 7:30 PM, CITY HALL
BOARD OF APPEALS MEMBERS: Chairman Ron Krueger, Richard Lynch,
James Dickey, Roger Sandvick, and
Hanley Anderson
BOARD STAFF: Jean Johnson, Zoning Administrotor,
and Lynda Diede, Recording Secretary
ROLL CALL: All Board members were present.
I. Minutes of June 9, 1983.
Dickey moved, seconded by Sandvick, to approve the minutes of June 9,
1983, Motion carried unanimously.
II. VARIANCES
A. Request #83-18, submitted by Republic Supply Company & Leonard
Swedlund, for property located at 9000 Riley Lake Road, legally
described as Lot 6, Aud. Subd. #372. The request is for a
variance from City Code, Sec. 11 .03, Subd. 2, to plat 3 lots
under 10 acres in size, permit a 30 foot sideyard setback in-
0 stead of the required 50 feet for the existing building. Lot
sizes proposed are 4.6 & 4.7 acres.
Gregory Frank, Consulting Engineer of McCombs-Knutson Associa es,
showed plans of the proposed project and reviewed the three v r-
iance requests. The requests are unique with a history dating
back seven years. Frank stated that they would like to be per-
mitted a 30' sideyard setback instead of the required 50' for the
existing building. In regard to the shoreline management provision,
they are requesting 4.6 acres, 4.7 acres and 4.7 acres instead of
the required minimum of a 5 acre lot size. The third variance
involves a minimum lot size for a rural zoning area. Instead of
a 10 acre minimum, they are proposing 4.6 acres, 4.7 acres and
4.7 acres.
Frank pointed out that the site is located on the north side of
Lake Riley. It has 14.1 heavily wooded acres, with , miles of
shoreland. It is the developers intent to develop it into three
lots.
Frank noted that this project was presented before the City Planning
Commission, the City Council and the Board of Appeals in 1979 and
approval was recommended. This is the only piece of property in
the City that had received preliminary plat approval when the ord-
inance was for a five acre minimun. The developer did not proceed
with the final plat or development, so the approval expired. The
City of Eden Prairie was at one time interested in acquiring the
site for a park at Lake Riley. Plans were vacated however, when a
Board of Appeals and Adjustments - 2 - July 14, 1983
grant was not available. The City, in October of 1982, changed
its ordinance from a 5 acre to a 10 acre minimum.
• Krueger asked what the difference in marketability would be in
having two lots as opposed to three. Leonard Swedlund, President
of Ecklund-Swedlund, commented that there would not be a lot of
difference.
Lynch stated that based upon previous approvals, it seemed unfair
to penalize the proponent because the City decided a 10 acre lot
is better than a 5 acre lot.
Dickey inquired if there were any buyers. Swedlund replied, yes.
Sandvick asked if anyone in the audience was concerned with toe
variance. There were no comments. Frank stated that no one had
expressed opposition at the Planning and the City Council meetings.
Swedlund remarked that a neighbor, Mrs. Jacques, had sent a letter
to the Council approving the subdivision.
Lynch asked if Swedlund lived in the house that exists on the
property. Swedlund said, yes.
Sandvick inquired if the DNR had to be involved with the shoreline.
Frank stated that the City Code is more restrictive than the DNR.
Sandvick asked who the attorney for Republic Supply Company was.
Frank introduced Rita Luke, Attorney, who is representing Republic
• Supply Company.
MOTION: Dickey made a motion to approve Variance Request
#83-18, submitted by Republic Supply Company and
Leonard Swedlund with the following findings:
1 ) It is identical to the situation in 1980
When Mr. Swedlund represented it.
2) That there be a one year time frame.
3) The variance would not have an adverse
affect on the City.
Lynch seconded the motion. Motion carried unanimously.
They have one year to exercise the petition.
B. Request #83-19, submitted by Bert A. Notermann, for property
located at 16180 Flying C1'oud Drive. The request is for a variance
from City Code, Chapter 11 , Sec. 11.03, Subd. 2, to grant setback
variances of: A. Building location: 1 Within 2' of Co. Rd.#4
ri ht of wa . 2 Within 6' of US 169-212 ri ht of wa 35' re-
uired setback. B. Parking locations: 1 Inside Co. Rd. #4
right of way. 2 Within 33 of US 169-212 right of way, 35
required setbacks; and Subd. 3, I. , 2, c, to permit construction
• of a loading facility on a street frontage_.
Board of Appeals and Adjustments - 3 - July 14, 1983
Bert Notermann, owner of Lion's Tap, introduced his planning
consultant, Dick Putnam, from Tandem Corporation, to the Board.
• Putnam reviewed the proposed plans for expanding the building'
moving and expanding the parking lot and realigning the roadw9y
of Co. Rd. #4 and Highway #169.
Putnam stated that the proposed parking lot would hold 60 cars
behind the building, with driveway access off County Road #4. '
There would be no access to Highway #169.
Putnam explained that the variance request pertains to the location
of the structure itself. The building is within 5-6' of Highway #169
right of way today. It is within 7' from the existing right of way
of County Road #4 today. The addition to the building of 10' would
be within 2' of the existing right of way. Notermann proposes to
purchase a sliver of property from Sever Peterson, neighbor. They
plan to put some of the material that comes out of the parking lot
to fill the area, so the county can come in and realign the road to
straighten the intersection.
Putnam stated that the plan was reviewed by the Planning Commission
and the City Council . Plans were changed a number of times to
accommodate suggestions.
Lynch asked what the county plans on doing as far as moving the road.
Putnam replied that with the help of the City, the county may find
the dollars and help put in the storm sewer.
• Anderson inquired what would happen to the handicapped spaces if the
County road is not moved. Putnam replied that there would not be any.
Sandvick asked what the proposed building would hold at maximum
capacity. Notermann replied that there would be seating for 158.
There would be three seats per parking space.
Lynch questioned as to when building would start. Notermann said
that they are ready to begin now.
Krueger inquired if there was anyone in the audience regarding the
variance. There were no comments.
MOTION: Lynch made a motion to approve Variance Request
#83-19, submitted by Bert A. Notermann. Anderson
seconded the motion. Motion carried unanimously.
They have one year to exercise the petition.
C. Request #83-20, submitted by Welsh Companies, for property located
at Northeast corner of W. 78th Street & Prairie Center Drive. The
request is for a variance from City Code, Chapter 11, Sec. 11 .03,
Subd. 2, for: 1 Construction of an office building, 34' in hei ht
instead of 30' , and 2 Construction of an access drive on the
property line instead of maintaining a 10' setback.
•
J
Board of Appeals and Adjustments - 4 - July 14, 1983
Lee Barrus, Development Construction Co-ordinator of Welsh
Construction Corporation, displayed plans of the proposed
• building.
Barrus stated that the building will be located south of #494,
north of W. 78th St. , and the NE corner of the Eden Prairie
shopping center. The original design on the lot was for 20,000
square feet with two stories. They were unable to feasibly
construct it on a 1 . 5 acre site. They went to a three story
building, which will have an east and west brick structure.
Reflective glass will be on the north and south. This was
approved by the Planning Commission and the City Council.
Barrus commented that the headquarters of Welsh Companies will be
located here and will occupy the first and possibly the second
floors. The three stories will not be visible from #494, only
from W. 78th St.
Barrus stated that Larry Peterson of the Preserve owns the ad-
joining property. They will be sharing the expenses of the road
together at a future date. Whoever purchases the property next
door will build a structure and all access will come off that
entry. The entry will limit the access off of W. 78th St.
Sandvick inquired as to the height of the building. Johnson
replied 34' . Other buildings in the City are higher.
MOTION: Anderson made a motion to approve Variance Request
• #83-20, submitted by Welsh Companies. Dickey
seconded the motion. Motion carried unanimously.
They have one year to exercise the petition.
D. Request #83-21 , submitted by Hipp's Construction, for propert,
located at Lot 7, Block 3, Edenvale 14th Addition. The request
is for a variance from City Code, Chapter 11 , Sec. 11 .039 Subd.
2, do permit platting of a lot 6,009 square feet in size instead
of the required 6,500 square feet.
Richard Hipp, Hipp's Construction, presented his proposal to the
Board.
Hipp stated that he was present at the June meeting with a front-
yard setback request. The request was tabled and a variance was
published for a lot size variance.
Hipp remarked that he had sold both sides of the lot.
Dickey inquired if anything had been done to prevent damage to
the tree. The City's concern is for the tree. Johnson stated
that the Staff mentioned that the Forester felt that there was
some damage. Hipp felt that no damage had been done. .
MOTION: Lynch made a motion to approve Variance Request
• #83-21 , Submitted by Hipp's Construction. Anderson
seconded the motion. Motion carried unanimously.
They have one year to exercise the petition.
Board of Appeals and Adjustments - 5 - July 14, 1983
E. Request #83-22, submitted by Tom & Peggy Sandvig, for property
located at Lot 6, Block 2, Sunset Trails Estates, 6500 Duck Lake
Road. The request is for a variance from City Code, Cha ter' 11 ,
Sec. 11 .03, Subd. 2, to permit construction of a residence within
25 feet of the front property line instead of the required 3 feet.
Tom Sandvig, owner of the property at 6500 Duck Lake Road, presented
his request. He displayed plans drawn up by his architect and
pointed out that there is a slope at the back of their lot. They
would like to move the house forward 5' .
Krueger inquired what the extra cost in blocks would be. Sandvig
replied it would be the cost of 8-10 blocks.
Lynch asked if this were the first house built in the development.
Sandvig said, yes.
Lynch added that this is the precedence setting house for the street.
Sandvig agreed; he pointed out that most of the other lots on the
street have the same grade.
Lynch stated that the fellow that platted the lots should be the one
to come in for a variance.
Johnson commented that another existing condition is the way that
the developer left the grade. Each buyer will have to alter grades
for their house. Originally the proposed grades were for modified
• underground homes.
Krueger pointed out that the hardship is that they want to put a
certain type of house on that particular lot. It is not the right
lot for the house.
Krueger inquired if they had looked into the expense of compacting it.
Sandvig said it would require thousands of yards of dirt to build it
up.
Sandvick asked if there was anyone in the audience in regard to this
variance. There were no comments.
MOTION: Sandvick made a motion to approve Variance Request
#83-22, submitted by Tom & Peggy Sandvig, with the
following findings:
1 ) There are no objections from the neighbors.
2) It is not harmful to the health and welfare
of the citizens of Eden Prairie.
Dickey seconded the motion. Sandvick voted aye, with
Lynch and Anderson voting nay. Motion carried. They
have one year to exercise the petition.
Board of Appeals and Adjustments - 6 - July 14, 1983
F. Request #83-23, submitted by Scott & Stephanie Feldmann, for
property located at 18865 Pheasant Circle, Lot 2, Block 6,
Hidden Ponds Second Addition. The request is for a variance
from City Code, Chapter 11 , Sec. 11 .03, Subd. 3, H. , 7, to
permit construction of a driveway within 1 foot of the ro e t
line instead of the 10 feet between end of driveway return a d
property line.
Scott Feldmann, property owner at 1886 5 Pheasant Circle,
presented his request. He stated that he is requesting a
1 ' setback for the driveway at the property line. The reason
for the variance request is to put in a straight driveway from
the garage to the cul-de-sac and to therefore avert a potentially
hazardous curve.
Feldmann displayed exhibits pertaining to his variance, including
the Certificate of Survey.
Krueger asked what the ordinance said about this request. Johnson
stated that it reads that the minimum distance between the end of
the driveway return and the property line be 10' .
Feldmann commented that they have found in excess of 50 violations
of that ordinance in Eden Prairie, most of which are on cul-de-sacs.
Beverly Cronk, 18895 Pheasant Circle, stated that her main concern
was that of the slope that exists. The water table is high and snow
• will drain directly down to their lot. Feldmann added that there will
not be a great impact on the area, as a swale does exist.
John Skare, 18860 Deerfield Trail, stated that his property is
directly behind Feldmanns. His concern is with the Cronks and
that they have room for removal of snow and for their mailbox.
David Cronk, 18895 Pheasant Circle, pointed out that Feldmann cars
are parked on their property. Dirt has also been piled on their
lawn due to construction. If the request were approved, they would
be losing what they felt was a front portion of their property.
Stephanie Feldmann, 18865 Pheasant Circle, noted that the damage
done to Cronks yard was minimal. They don't have control over how
their builder excavates. They plan on laying sod or replacing the
grass.
Anderson asked why Feldmann was not interested in a trade of land
with the Cronks. Feldmann responded that he felt that it was an
irreverent issue. He cannot afford to incur the costs involved in
retitling, plat plans and legal fees. The site plan was approved
by the City. They do not want to lose any property.
Anderson inquired if he was aware at the time the home was built
that the driveway would have to go in the center. Feldmann replied
• no, his builder was not aware of the ordinance.
David Cronk stated that they would be willing to pay all expenses
Board of Appeals and 'Adjustments 7 - July 14, 1983
for a land division. Feldmann stated that he was not interested
in talking about property division. He designed the house to fit
• the lot per the survey, and he shouldn't be penalized to sell
property to achieve a safe condition on the driveway.
Anderson stated that he had a problem approving the variance. There
are two or three available alternatives.
Sandvick asked why the Cronks and the Feldmanns hadn't gotten
together. Beverly Cronk replied that they had tried.
Dickey suggested that more thought be given to the situation and
return next month with the variance. Feldmann replied that he
wanted it dealt with now.
Sandvick asked if there was anything drawn up by Cronk's lawyer
that we should know about this evening regarding any variation
of the variance. Beverly Cronk stated that the sole reason for
the papers was to activate the Homeowner's Association of Hidden
Ponds.
MOTION: Lynch made a motion to deny Variance Request
#83-23, submitted by Scott & Stephanie Feldmann
with the following findings:
1 ) Undue hardship unique to this parcel has
not been demonstrated.
• 2) Approval would not be in keeping with the
intent of the code, but would be disruptive
to immediate properties.
Anderson seconded the motion. Sandvick voted nay,
with Dickey abstaining. Motion carried. This re-
quest can be appealed to the Citv Council .
III. OLD BUSINESS
Dickey questioned damage done to the oak tree on the property of
Richard Hipp. Dickey talked to the City Forester and was told
damage had occurred. Johnson stated that it could be repaired by
trimming the crown and moving the dirt.
Johnson stated that Appleside had put up some signs. The process has
been started in taking the signs down. The code requires that we give
them a 30 day notice. The State Highway Department has given them a
60 day notice.
IV. NEW BUSINESS
None
V. ADJOURNMENT
Sandvick moved, seconded by Lynch, to adjourn the meeting at 9:25 PM.
Motion carried unanimously.
(612) 33B-0755
L A W O F F I O t i
LANG, PAULY & OREGERSON, LTD.
4108 IDS CENTER
10MINNEAPOLIS, MINNESOTA '55402
DeERr I. LANG
ROGER A. PAULY
DAVID H. OREGERSON
RICHARD F. ROSOW August 22, 1983
MARK J. JOHNSON
JOSEPH A. NILAN
JOHN W. LANG
Ms. Jean Johnson
Building Administrator
Eden Prairie City Offices
8950 Eden Prairie Road
Eden Prairie, MN 55344
Dear Ms. Johnson:
You have requested a review of the considerations and
principals applicable to a determination of whether lot size
variances should be granted to permit the building of houses,
on parcels of a size less than that required by Chapter 11 of
the City Code, where such parcels existed as separate tracts
at the time of the adoption of such provision of the City Code
or its predecessor ordinance. City Code Chapter 11, Section 11. 10,
Subd. 2 of that section specifies permitted uses in the Rural
District as follows:
• "Subd. 2. Permitted uses.
'A. Agriculture, accessory and related uses.
B. Public facilities and services.
C. Single family detached dwellings and
accessory structures without platting on parcels of
not less than 10 acres.
D. Single family detached dwellings and accessory
structures without platting on parcels of five or more
acres, but less than ten acres, as of July 6 , 1982. "
The five (5) acres limit was also included in the previous ordinance
No. 135, adopted on November 6, 1969, relating to zoning.
Chapter 11 does not contain any exemption from the requirement
imposed by Sec. 11. 10 that single family dwellings must be on
parcels of not less than 5 acres existing as of July 6 , 1982,
and 10 acres thereafter. Sec. 11. 75 permits the continuance of
nonconforming uses. A nonconforming use is one "lawfully occupying
a structure or a site on the effective date of this Section. . . 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 a nonconforming use and may be continued
Subd. 2A. Obviously, if a dwelling did not exist on a
parcel at the time of adoption of the ordinance, no nonconforming
• use existed at that time.
Ms. Jean Johnson
Page Two
. August 22, 1983
It may be .assumed that Chapter 11, including Sec. 11. 10, is
valid unless it is found that is has no substantial relationship
to public health, safety, morals, or general welfare, County of
Freeborn v. Claeson, 295 Minn. 96, 203 N.W. 2d 323. In that case
the court said at N.W. 2d 326 ,
"The burden of proof is upon defendant to establish that
the legislative body has acted arbitrarily or unreasonably
and that there is no substantial relationship to the public
health, safety, morals, or welfare. What best furthers
public welfare is a matter primarily for determination by
the legislative body concerned. .. Even where the reasonable-
ness of a zoning ordinance is debatable or where opinions
differ as to the desirability of the restriction it imposes,
the courts are not to interfere with the legislative
discretion. " (citations omitted)
Assuming the general validity of Chapter 11, the question
remains whether the City may deny issuance of a building permit
for a dwelling in a rural district by virtue of Sec. 11. 10 because
the parcel for which the building permit is requested is , and
• was at the time of adoption of the ordinance, less than 5 acres.
The application of a zoning ordinance to the owner of specific
property may be invalid if it results in an unconstitutional taking
of his property, U. S. CONST. amend. V; Minn. CONST. art. 1 §7;
Krahl v. Nine-Mile Watershed District, 283 N.W. 2d 538 (1979) ;
Holaway v. City of Pipestone, 269 N.W. 2d 28 (1978) ; Czech v. City
of Blaine, 312 Minn. 535, 253 N.W. 2d 272 (1977) ; McQuillin, Mun.
Corp. (3rd Ad. ) , Section 24. 45. The rule enunciated by the Minnesota
Supreme Court is stated in Czech at 253 N.W. 2d 274 as follows :
"For there to be an unconstitutional taking a landowner
must demonstrate that he has been deprived, through
governmental action or inaction, of all the reasonable
uses of his land. C. F. Lytle Co. v. Clark, 491 F. 2d 834 ,
838 (10 Cir. 1974) ; County of Freeborn v. Claussen, 295
Minn. 96 , 203 N.W. 2d 323 (1972) ; see, generally, Freeman,
Give and Take: Distributing Local Environmental Control
Through Land-Use Regulation, 60 Minn. h. Rev. 833.
In quoting the rule with approval in Krahl, the court reiterated
that the burden of proof is upon the landowner when it said at
283 N.W. 2d 543 , "In the instant case, Krahl has not met his burden
of showing that he can make no reasonable use of the land. "
While it is clear that in order to prevail, the landowner has
• the burden and must show that the questioned governmental action
deprives him of all reasonable use of his land, it is not so clear
of what that showing must consist.
Ms. Jean Johnson
Page Three
• August 22, 1983
In Krahl, the most recent case, the court held the landowner
did not meet the burden of proof. That case involved property
situated within the Nine-Mile Creek Watershed District. Krahl
purchased the property on a contract for deed from a party who
was purchasing it from a previous owner, also on a contract for
deed, dated July, 1959. In 1961 the Minnesota Water Resources
Board prescribed the Nine-Mile Creek Watershed District overall
plan, which regulated encroachment into the flood plain of Nine-
Mile Creek. In 1970 Krahl appeared before the watershed district
managers with several plans for development which required filling
the flood plain in excess of 20 percent permitted by the plan.
He was denied a permit. In its opinion, the court concluded that
the denial of the permit did not constitute a taking of Krahl ' s
. property for which compensation must be paid. In concluding that
Krahl did not meet his burden of proof, the court stated at
283 N.W. 2d 543,
" . . . the watershed district has persuasively
argued that a number of reasonable uses remain
for the land: for example, the district asserts
that the land could be used agriculturally; to
meet open-space requirements of the zoning code; as
• a density credit area; for golf driving ranges,
parking lots, recreation uses, set-back areas; or
for any other use which would not impede the
flow of surface waters. Accordingly, Krahl ' s claim
must fail. "
In Czech the court reached a conclusion opposite that
in Krahl. Czech involved an attempt by the landowner to have land
,adjacent to his mobile home park rezoned for expansion of the
park. The rezoning was denied. On appeal of the ensuing legal
action, the Supreme Court held the City' s failure to grant the
rezoning was an unconstitutional taking of his property. The holding
was based upon the conclusion that the general characteristics of
the property, including the high water table and general nature of
the terrain, virtually rendered the property useless for any other
than a mobile home park, and a finding that the public health,
safety, and welfare would not be endangered by such a development
on the property. In County of Freeborn, the Supreme Court reversed
the lower court' s denial of the County' s request for an injunction
against landowner, without prejudice to the latter' s right to
petition for rezoning of his land on the ground that it is not
suitable for use for the residential purposes for which it was
zoned. In that case the land was being used in a nonconforming
manner for the outdoor storage and repair of equipment.
• Thus, while the rule placing the burden of proof on the land-
owner to demonstrate that he has been deprived of all reasonable
uses of his land is clear, the application of that rule is
dependent upon the facts in each specific case.
Ms. Jean Johnson
Page Four
August 22, 1983
As noted above uses permitted pursuant to Sec. 11. 10
include agriculture, accessory, and related uses. In determining
whether the owner of a parcel not meeting the current size require-
ments for a dwelling should be granted a variance, a investigation
must first be made to determine whether there is any other reason-
able use of the land. If any other reasonable use of the land is
found, the owner would not be entitled as a matter of right to a
variance. Minn. Stat. Sec. 462. 357, Subd. 6 , which authorizes
appeals to the Board of Appeals and Adjustments embodies this
test. Subd. 6 grants to the Board the power,
" (2) To hear requests for variances from the literal
provisions of the ordinance in instances where their
strict enforcement would cause undue hardship because
of circumstances unique to the individual property under
consideration, and to grant such variances only when it is
demonstrated that such actions will be in keeping with
the spirit and intent of the ordinance. "Undue hardship"
as used in connection with the granting of a variance
means the property in question cannot be put to a reason-
able use if used under conditions allowed by the official
controls, the plight of the landowner is due to circum-
stances unique to his property not created by the landowner,
and the variance, if granted, will not alter the essential
character of the locality. Economic considerations alone
shall not constitute an undue hardship if reasonable
use for the property exists under the terms of the
ordinance . . . (Emphasis supplied)
In considering whether a variance as to the minimum size
parcel necessary for a dwelling should be granted, the Board
may also consider what, if any, other variances or permits may
be required by the City Code and the facts relating to those
matters. For example, whether set backs for a proposed structure
are adequate or would require a variance, as well as the effect
the granting of any such variance would have upon the essential
character of the locality. If a permit for certain construction
such as on a steep slope is required the type of structure
contemplated and how the slope will be protected from erosion
are proper matters for consideration. The Board may also consider
any matter as to which a variance, if granted, would affect public
health, safety, or welfare.
•
Ms. Jean Johnson
Page Five
August 22, 1983
CONCLUSION
1. An owner of a parcel of land consisting of less than 10
acres or 5 acres situated in the Rural District is not entitled
as a matter of right to a permit to build a single family dwelling
on the parcel even if the parcel existed as a separate tract
prior to the adoption of Chapter 11 of the City Code or its
predecessor Ordinance No. 135.
2. The owner is entitled to a permit if adoption of the
minimum parcel size has deprived him of all reasonable use of his
land.
3. The burden of proof that he has been so deprived is upon
the owner.
4. In considering whether a variance should be granted,
the Board may consider other potential uses of the land, other
restrictions and limitations, on the use of the land as well
as any effect a proposed variance would have upon the health,
safety, and welfare of the public.
/Sincerely---,
Roger A. 'Pauly
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