HomeMy WebLinkAboutBoard of Adjustments and Appeals - 06/14/1984 i4PPROVED MINUTES
BOARD OF APPEALS AND ADJUSTMENTS
THURSDAY, JUNE 14, 1984 7:30 PM, ADMINISTRATION
BLDG. , ROOM 5
BOARD OF APPEALS MEMBERS: Chairman Ron Krueger, Richard Lynch,
Roger Sandvick, James Dickey and
Hanley Anderson
BOARD STAFF: Zoning Administrator Jean Johnson, City
Research Planner Steve Durham and Record-
ing Secretary Lynda Diede
ROLL CALL: Anderson was absent.
I. MINUTES
A. Minutes of May 10, 1984.
MOTION: Lynch moved, seconded by Krueger, to approve the minutes of
May 10, 1984. Dickey abstained. Motion carried.
B. Minutes of May 14, 1984.
MOTION: Lynch moved, seconded by Krueger to approve the minutes of
May 14, 1984. Dickey abstained. Motion carried.
II. VARIANCES
A. Request #84-10, submitted by Kent Molde, John Golle & Wally Cruz
for property located at 7011 Willow Creek Road, legally descriaed
as Lot 6, Block 1 , Willow Creek. The request is for a variance
from City Code, Chapter 11 , Section 11 .50, Subd. 3, to permit
construction of a second dock per the one abutting lot and to
place the dock within 7.5 feet of the side lot line instead of
maintaining a 15 foot setback. Continued from the February 9,
1984 and May 10, 1984 meetings.
On June 5, 1984, the proponents requested another extension of
their variance request.
MOTION: Lynch made a motion to table the item, with no indication
of approval or denial . The request will be republished
when ready. Sandvick seconded the motion. Motion
carried unanimously.
Board of Appeals and Adjustments - 2 - June 14, 1984
B. Request #84-19, submitted by David L. Brown for property located at
northwest corner of US 169 & Eden Prairie Road. The request is for
• a variance from City Code, Chapter ll , .Section 11 .03, Subd. 2, to
permit construction of a single family residence upon an existing
3.2 acre Rural zoned lot. Continued from the April 12, 1984 and
the May 10, 1984 meetings.
Hugh Bishop, attorney representing David L. Brown, presented the
proposal to the Board. The first issue addressed was that of the
driveway. Jim Benshoof of Benshoof & Associates was introduced.
Their firm deals with traffic engineering and planning consult-
ation. The driveway area was measured and analyzed. It was re-
commended that there should be a turn-around constructed at the
bottom of the driveway near the street to provide a space for a
vehicle to turn around. This would avoid backing out on Eden
Prairie Road. A profile of the driveway was displayed. There is
a landing area available on the property. The grade on the main
portion of the driveway is 10.4%. This is within all applicable
driveway grades. The Institute of Transportation Engineering
allows grades up to 15%. With the profile provision, grading,
and a turn-around, it is felt that this would provide safe design
construction. A chart was displayed depicting site distances
that provide necessary safety:
Sight Distance to Left Sight Distance to Right
Available 360' Available 325'
MN DOT 340' MN DOT 285'
ITE Standard 250' ITE Standard 195'
The standards are based on 25 MPH speed.
Sandvick inquired what the stopping distance would be coming down
the driveway. Benshoof stated that it would be in relation to the
speed. He was confident one could stop under normal circumstances,
Sandvick expressed concern over Minnesota weather and its effect on
stopping.
Bishop stated that a percolation test of the soil was submitted to
the Building Inspector and it met with his approval .
Bishop reviewed what the record title was when Brown purchased the
parcel in 1977. Brown commented that he was told at that time by
the City it was possible to get a building permit.
Bishop stated that on June 14, 1984, documents were received from
Mr. Sorensen's office, through Mr. Pauly. The documents stated
that on October 25, 1967, Mr. Gingold,Jr. signed a contract for
deed with Graves for the purchase of land which included the Nielson,
Brown and other parcels. On the same date he received a warranty
deed for the Nielson parcel . According to the unrecorded contract
for deed (unknown to Brown previously) he was the equitable owner of
the parcel . It was a voluntary conveyance, but the conveyance was
made before the ordinance was imposed. When Gingold,Jr. lost his
Board of Appeals and Adjustments - 3 - June 14, 1984
contract, he split it into two parts. On January 21 , 1969, he lost
part to the bank and part to the Graves. Bishop referred to the
• letter from Sorensen. The placement of the mortgage and the
amount of the property subject to the property were voluntary acts
of Gingold, Jr. However, the voluntary act occurred before the 5 acre
limitation. Every zoning variance application is considered on its
own terms. Unlike others, these actions were done prior to the ord-
inance. Graves and Gingold never applied to the City for a division
of the land. Up to this time, there were no restrictions to the
property regarding divisions. Equitably, 3.2 acres should be given
a grandfather right.
Dickey inquired if any neighbors had tried to buy the land. Brown
replied that he had not been approached.
Bishop referred to the nature of the mortgage. The mortgage had a
provision that the land subject to the mortgage could be bought back,
however Gingold did not exercise that option. In 1974, Gingold signed
a new contract for deed. The source of Browns title goes to Gingold,Sr.
and then back to the Graves.
Dean Edstrom, 10133 Eden Prairie Road, stated that this request amounts
to a rezoning, not a variance. There is a significant change in the
requirements imposed by the ordinance. Edstrom reviewed the policies
of the City Code. He addressed the area of private wells and the
potential danger of the proposed driveway on Eden Prairie Road.
Edstrom felt that that the engineering study of the road was mis-
leading and did not reflect the accidents that have occurred.
Sandvick questioned if the line of sight would be hindered in the
winter months coming out of the driveway. Edstrom replied that it
depends on the height of the snow and the height of the car. The
road gets narrower in the winter and it would cut off some of the
sight lines.
Edstrom asked Brown if Gingold, Sr. discussed the history of the
parcel when it was purchased. Brown stated that Gingold, Sr. said
he did own more property in the :area.
Krueger asked what process a steep slope ground permit would follow.
Johnson pointed out that if the Board were to approve this variance,
a steep slope ground permit would have to be submitted for the
Planning Commission,the Park and Recreation Commission and the City
Council review.
Dickey asked if the property was legally divided or platted. Roger
Pauly, city attorney, stated that there is no issue with regard to
the subdivision. The subdivision ordinance did not apply to parcels
with 22 acres or greater at the time the Brown parcel was divided.
Mrs. David Brown commented that it is their sole intent to build on
the property. She was brought up in Eden Prairie and enjoyed the
• quality of life and the schooling. They have two pre-school children.
Board of Appeals and Adjustments - 4 - June 14, 1984
John Hansen, 16200 Hilltop Road, stated that he and his wife had
• considered buying the land at one time. However, Gingold purchased
the land and subdivided it. In 1974, Gingold sold the property to
Ken Christenson. Christenson obtained a building permit. Subse-
quently, Christenson traded the property for a lot in South St. Paul
through Castle Realty. Brown bought the land and it remained in
Gingold's name because he was holding the contract. Hanson felt
that the property has everything going for it except objection of
some neighbors.
Pauly inquired if the percolation test information was provided.
Johnson stated that it is on the Advance Engineer site plans
submitted with the request.
Pauly reviewed the power of the Board of Appeals to consider granting
of variances. The reasons for granting a variance are:
1 ) Strict enforcement of the Code would mean undue hardship.
2) Because of circumstances unique to the individual property,
Chapter 11 of the City Code authorizes what are considered
proper variances. It provides for those resulting from the
size, shape or dimensions of the site. The size, which is
the issue in this instance, is within the authority of the
Board to consider. The statute says that variances may be
granted only when it is demonstrated that such actions will
be in keeping with the spirit and intent of the ordinance.
• a) Undue hardship is defined as a situation where the
property can not be put to a reasonable use if used
under conditions allowed by the official controls.
b) The plight of the landowner is due to circumstances
unique to the property and not created by the land-
owner.
c) The variance, if granted, will not alter the essential
character of the locality.
Pauly stated that the ammendment to the ordinance in 1969, for the first
time, required parcels to be 5 acres or more. This was a limiting
restriction. In situations where parcels are less than 5 acres prior
to the adoption of the ordinance the Board may deny the request for a
variance if:
1 ) Brown had not been deprived through adoption by the City of
the 5 acre requirement, of all reasonable uses of his land.
If the only reasonable use for the parcel is to build a house
on it for residential use then you would deprive and the
enforcement of the 5 acre provision would deprive the owner
of all reasonable uses. If you find the parcel can be used
for some other reasonable purpose, there is no constitutional
• compulsion to grant a variance, or
Board of Appeals and Adjustments - 5 - June 14, 1984
2) Brown or his predecessor owned the Brown parcel in common
with one or more parcels on or after October 14, 1969, the
date of the adoption by the City of the 5 acre minimum lot
size, which together constitited 5 or more acres and there-
after conyeyed such other parcel or parcels. The fact that
Brown purchased his parcel in 1977 does not require a con-
clusion that the hardship was self-induced unless he or his
predecessor owned and disposed of an adjacent parcel or
parcels described above.
Two cases are cited in a memo to the Board dated May 1 , 1984,
The Brown case differs in that there was common ownership of the
Brown and Nielson parcels in August 1967. In October11967, Gingold,
Jr. entered into a contract for deed with Graves covering
both the Brown and Nielson parcels (approximately 4.4 acres) .
The contract for deed was unrecorded. On the same day, Graves
followed up with a quit claim deed relating to the Nielson
parcel . In 1968, Gingold placed a first mortgage on the
property to Eberhardt Company. A second mortgage to Eberhardt
was placed in February 1969. During this time, Gingold had a
contract right to purchase the Brown parcel . The mortgage
creates an equitable interest in the Nielson property in
favor of Eberhardt at the time it was signed. In September
1972, the Nielson parcel was sold by the Sheriff pursuant
to a mortgage foreclosure. In December 1972, there was an
unrecorded assignment of the contract for deed by Gingold,
Jr. to Gingold, Sr. Gingold, Jr. did not redeem from the
mortgage foreclosure. The mortgage foreclosure in 1972
effectively conveyed the title to Twin City Federal after
the redemption period had expired (March 1973) . Subsequently,
the property passed to the Marquette Bank and it was sold to
N .1son.
The key things to consider are what happened prior to October
1969 regarding the contract for deed and the mortgage. Consider-
ation must be given regarding actions entered into by Gingold,
Jr. in purchasing the Brown and Nielson parcels by contract
for deed and mortgaging the Nielson parcel . This was prior
to the adoption of the 5 acre limitation on October 14, 1969.
Gingold failed to pay off the contract and mortgage. It must
be decided whether this constitutes a voluntary or involuntary
conveyance or hardship.
3) The proposed use of the Brown parcel for construction of a
dwelling would create a significant and substantial condition
detrimental to the health, safety or welfare of the public
such as: potential contamination of wells, road or other
safety considerations.
Sorensen commented on the potential hazard of Eden Prairie Road and
pointed out that this is a substantial variance. Sorensen stated
that Brown is bound by the action of his predecessors.
Board of Appeals and Adjustments - 6 - June 14, 1984
Mrs. Dean Edstrom, 10133 Eden Prairie Road, commented on the dangers
of waiting for a school bus on Eden Prairie Road.
• Lynch inquired if the City had a record of the previous building permit.
Johnson replied that none was found in the Building files.
Lynch expressed concern on how the property was taxed and if it was
platted. Edstrom commented that the primary principal is the common
ownership.
Lynch had concern on how the property came to be and. the change of
title. How could the City change the ordinance and not deal with
pieces of property. There is a reasonable amount of hazard involved
in the road access. The issue of voluntary caused hardship is diff-
icult for him to assess.
MOTION: Sandvick made a motion to deny Variance Request #84-19,
submitted by David L. Brown. He stated in support of
the motion that:
1 ) The area in which the Brown parcel is situated is
a high risk area in terms of safety factors.
2) The size of the variance is unreasonable.
3) There is useage of the land. We are not denying
Brown use of the land at this time.
DISCUSSION: Krueger added that with the steep slopes ,
• driveway, 30% elevation on Eden Prairie Road, and
previous accident history, it is a dangerous situation.
Dickey stated that he had seen some of the school bus
accidents in the .area and was involved in one with a
child. It would concern him greatly if a school bus
couldn't stop on the proposed Eden Prairie Road location.
Dickey seconded the motion. Lynch voted nay. Motion
carried 3:1 .
The Staff was requested to prepare findings in connection
with the motion and for submission to the Board.
C. Request #84-28, submitted by James Brennan for property located at_-
7194 Tartan Curve, legally described as Lot 5, Block 8, Hidden Ponds
Second Addition. The request is for a variance from City Codej Chapter
11 , Section 11 .03, Subd. 2, to permit the construction of a porch within
7 feet of the side lot line. Code requires a 10 foot minimum.
James Brennan, 7194 Tartan Curve, reviewed the request with the Board.
His request is to replace the existing deck with a three season porch.
Brennan is the second owner of the house and a building permit was
granted prior to his buying the home. Plans are to replace the deck,
not enlarge it.
Krueger asked if he were planning to build a three season porch.
Brennan replied yes, then he would put the deck on the back of the
house.
Board of Appeals and Adjustments - 7 - June 14, 1984
Krueger inquired if there were any comments from the audience. There
were none.
Sandvick asked if the deck was existing and Brennan just planned to
improve it. Brennan replied yes , it will be reconstructed.
Lynch inquired about the oversized deck. The permit was issued for
a 8'xl2' deck and a 10'xl6' deck was built. Brennan replied that it
was built by the previous owners.
Johnson stated that the variance requested is required either for the
existing structure or the reconstruction. Photos were displayed.
Krueger inquired if neighbors had been spoken to. Brennan replied yes.
Krueger asked if the encroaching stairway would be removed. Brennan
said yes.
MOTION: Sandvick made a motion to approve Variance Request
#84-28,submitted by James Brennan with the following
findings:
1 ) It will enhance the property.
2) There are no public objections or safety hazards.
Dickey seconded the motion. Motion carried unanimously.
Lynch added that the findings of the variance improves
the situation by removing the steps on the lot line.
D. Request #84-29, submitted by Russ Kleve for property located at
12151 Sunnybrook Road. The request is for a variance from City
Code, Chapter 11 , Section 11 .03, Subd. 2 & Subd. 3, C. , to permit
construction of a detached garage within 10 feet of the side lot
line 30' minimum required by Code) & within 65' of the front
property line (minimum required to meet average setbacks would be
87.6 ft. ).
Russ Kleve, 12151 Sunnybrook Road, spoke to the request. His home is
built on the middle of the lot. If the garage were to be built in the
rear of the property two trees would have to be removed and a 175' drive-
way installed. If the proposed garage was placed in the front of the
home it would detract from the appearance of the house.
There were no comments from the audience.
Kleve stated that there is thick hedge near the property line and it
will not impact the neighbor.
MOTION: Lynch made a motion to approve Variance Request #84-29,
submitted by Russ Kleve for property located at 12151
Sunnybrook Road. Sandvick seconded the motion. Motion
carried unanimously.
Board of Appeals and Adjustments - 8 - June 14, 1984
E. Request #84-30, submitted by Hospitality Growth Services, Inc. for
property located at 6480 City West Parkway. The request is for a
variance from City Code, Chapter 11 , Section 11 .03, Subd. 2, to
permit construction of a hotel 77.5' in hei ht Code maximum is 40
ft.), a floor area ratio of .64 Code maximum is .40 and from
Subd. 3 to permit parking on site of 388 spaces Code requirement
is 538 spaces) . And to permit construction of a drive entrance at
the lot line.
Jim Eastman, representing Hospitality Growth Services, Inc. presented
the proposal to the Board. Site plans were displayed of the 52 acre
site. It will consist of a 7 story building with 228 rooms. The
project was approved by the Planning Commission and the City Council .
The rezoning approval is contingent upon the applicant obtaining the
required variances from the Board of Appeals.
Krueger inquired about the 388 parking spaces on the site.
Eastman stated that they have a common parking easement with the
building next door. There will be shared useage.
Johnson stated that there are 388 spaces provided on the site. 20
more stalls could be utilized on site and 150 spaces are shared
agreement on the O'Neill site.
Sandvick asked about the type of office building next door.
• Scott Anderson, Anderson Development, Inc. replied that it would be
typical office useage.
MOTION: Krueger made a motion to approve Variance Request
#84-30,submitted by Hospitality Growth Services,
Inc. with the following findings :
1 ) The parking plan has been thoroughly studied.
2) It has been approved by the Planning Commission and
the City Council .
3) Parking variance is based upon proof of parking of
an additional 20 spaces on site and shared parking
of 150 parking spaces.
Sandvick seconded the motion. Motion carried unanimously.
DISCUSSION: Sandvick questioned if Staff had future plans to
revise the height maximum. Johnson replied no, as the Code is
for the overall City and a greater height in an area like the
intersection of County Road 4 and TH 5 for office would be
inappropriate. Therefore, height variances for areas such as
the Major Center Area, etc. , will follow either the PUD or
variance process.
•
Board of Appeals and Adjustments - 9 - June 14, 1984
F. Request #84-31 , submitted by Eden Prairie Hotel Company for property
• located in the southeast quadrant of TH 5 and I-494. The request is
for a variance from City Code, Chapter 11 , Section 11 .03, Subd. 2, to
permit construction of a hotel at a .48 floor area ratio (Code max-
imum is .40) and from Section 11 .70 to permit a sign 40 feet in
height and 120 sq. ft. in size. (Code maximums are 20 feet in height
and 80 sq. ft. of size. )
Ed Bosio, representing Eden Prairie Hotel Company, presented his re-
quest to the Board.
Krueger asked where the sign was to be located. Bosio displayed plans
indicating where the sign would be located. They would like the sign
to be 50% bigger which would be 120 square feet and 40' high.
Krueger asked how high the buildings were. Bosio replied that they
would be two stories, and 28' high.
Krueger commented that the sign would be at the highest point of the
site.
Lynch stated that with that kind of visibility the sign should conform
to the Code. He would be ammendable to another sign on the back of the
property.
Johnson stated that supportive data as to the need for a larger and
• taller sign has not been submitted.
Lynch recommended that two signs as per Code be put up as opposed to
one big sign.
Dickey questioned if Eden Prairie Hotel Company had met with recommend-
ations of the Planning Staff. Johnson replied that they had been ad-
dressed, noting that ,signage shall comply with City Code requirements.
They would be permitted two free standing signs according to Code. One
sign could be 80 square feet and the other 50 square feet.
Bosio stated that they would resubmit the sign variance request when a
representative from the traffic and advertisement area could be present.
MOTION: Krueger made a motion to approve Variance Request #84-31,
submitted by Eden Prairie Hotel Company for the Floor
Area Ratio only. The sign variance request is withdrawn
at this time. This variance will not be harmful to the
health and welfare of the citizens of Eden Prairie.
Lynch seconded the motion. Motion carried unanimously.
G. Request #84-32, submitted by Super 8 Motel for property located North
of West 78th Street. The request is for a variance from City Code,_
Chapter 11 , Section 11 .03, Subd. 2, to permit construction of a motel
with a floor area ratio of .44 (Code maximum is .40).
Harvey Rott, representing Super 8 Motel reviewed the plans with the
Board.
Board of Appeals and Adjustments - 10 - June 14, 1984
Krueger noted that both the Planning Department and City Council have
approved the project.
Krueger asked if anyone in the audience had questions or comments.
None were raised.
MOTION: Lynch made a motion to approve Variance Request #84-32,
submitted by Super 8 Motel with the following findings:
1 ) It is a slight variance reviewed by Commission and
Council .
2) It will not be detrimental to the health and welfare
of the citizens of Eden Prairie.
Sandvick seconded the motion. Motion carried unanimously.
H. Request #84-33, submitted by Amoco Oil Company for property located at
8100 Flying Cloud Drive. The request is for a variance from City Code
Chapter 11 , Section 11 .03, Subd.2, to permit a gas pump canopy within
16 feet of the front property line (Code requires a minimum of 35 feet).
Mark Namtvedt, representing Amoco Oil Company, spoke to the request.
Lynch questioned if they were asking for a gas pump canopy plus narrow-
ing the boulevard to allow freer access.
• Namtvedt stated that they would be widening the front by 5' . It would
make for a smoother flow of traffic. The present island is not wide
enough for a car parked there to exit. With the new island proposal
there will be 12 fueling positions. The new pumps allow then to have
three products in one pump.
Sandvick inquired if Namtvedt was aware of the landscape suggestion of
the Staff. Namtvedt stated yes, but he would not like to see a wall
constructed. He would be willing to put in additional landscaping.
Dickey stated that he would not be in favor of a wall .
Johnson stated that the alternative to a wall is a strip of green space.
Plant material may not survive in areas less than 4' of sod. In such
cases a matching wall would provide better screening.
Johnson said that there is 1 ' of sod between the curb and sidewalk.
One foot of sod is not a useful area for plant material .
Lynch inquired why there is "0" lot line across the street and no
screening. Johnson stated that it is required that parking be
screened, not the buildings.
Namtvedt stated that the sidewalk was not being interferred upon.
•
Board of Appeals and Adjustments - 11 - June 14, 1984
Dickey commented that Amoco and Shell had gone to plastic plants and
perhaps that would work on this site.
MOTION: Dickey made a motion to approve Variance Request #84-33,
submitted by Amoco Oil Company with the following
findings:
1 ) Owner be required to add additional landscape material
as may be required by the Planning Department to meet
the screening requirements of City Code.
Sandvick seconded the motion. Motion carried unanimously.
I. Request#84-34, submitted by William Carpenter for property located
at 15517 South Eden Drive. The request is for a variance from City
Code, Chapter 11 , Section 11 .03, Subd. 2, & Subd. 3, C. , to permit
construction of a garage within 18.2 feet of the front property line
(Code requires a minimum of 36 feet as per the average setback of the
block.
William Carpenter, 15517 South Eden Drive, presented the request to the
Board.
Sandvick inquired if there was anyone in the audience concerned with
the variance.
Carpenter's contractor was present. He stated that Carpenter would
• like to construct a new double car garage and addition to the house.
The garage will not block any view.
Kreuger asked if there was any opposition from the neighbors. There
was none.
MOTION: Sandvick made a motion to approve Variance Request
#84-34, submitted by William Carpenter with the
following findings :
1 ) There are no objections from the residents that were
notified.
2) The variance is not detrimental to the health and
welfare of the citizens of Eden Prairie.
3) Neighbors were spoken to and there was no conflict.
Dickey seconded the motion. Motion carried unanimously.
Board of Appeals and Adjustments - 12 - June 14, 1984
III. OLD BUSINESS
None
IV. NEW BUSINESS
None
V. ADJOURNMENT
MOTION: Sandvick moved, seconded by Krueger, to adjourn the meeting
at 10:40 PM. Motion carried unanimously.
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