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HomeMy WebLinkAboutBoard of Adjustments and Appeals - 07/11/1985 APPROVED MINUTES BOARD OF APPEALS AND ADJUSTMENTS THURSDAY, JULY 11 , 1985 7:30 PM, ADMINISTRATION BLDG. , ROOM 5 8100 SCHOOL ROAD BOARD OF APPEALS MEMBERS: Chairman Ron Krueger, Richard Lynch, Roger Sandvick, James Dickey and Hanley Anderson BOARD STAFF: Assistant Planner, Steve Durham and Recording Secretary, Lynda Diede ROLL CALL: Anderson and Dickey were absent. I. MINUTES A. Minutes of June 13, 1985. MOTION: Lynch moved, seconded by Krueger, to approve the minutes of June 13, 1985, with the following amendments: P. 2, para. 1 , line 2, change to read,"Rodberg said that he only had . one bid for the block work which was from Hans Hagen." P. 2, para.14, change to read,"Lynch was concerned about the three season porch being accomplished as a do-it-yourself project. " P. 2, para. 3, line 2, change to read, Rodberg said that he plans to put decorative panels on the existing garage door. " P. 7, para. 9, line 2, change "reviewed the Code" to "brought up to Code." P. 8, para. , change "$100,000" �� to $10,000. �� P. 9, para. 1 , change control to conformance. Motion carried --2-0-1 . (Sandvick abstained. ) II. VARIANCES A. Request #85-21 , submitted by Hampton Inn for property located west of Hwy. #169, south of Valley View Road, east of Hwy. #5. The re- quest is for a variance from City Code, Chapter 11 , Section 11 .03, Subdivision 2 B, to permit the construction of a 125 room hotel with a floor area ratio of .47. Code permits .a maximum F.A.R. of .40. George Watson, representing Hampton Inn, stated that they would like a continuation of the request until the next scheduled meeting. (The City Council denied first reading of Hampton Inn at its July 2, 1985 meeting.) MOTION: Lynch made a motion to continue Variance Request #85-21 to the next scheduled meeting August 8, 1985. Sand- vick seconded the motion. Motion carried unanimously. Board of Appeals and Adjustments - 2 - July 11 , 1985 B. Request #85-22, submitted by Ivan S. Kerr for property located at • 10961 Mount Curve Road The request is for a variance from City Code, Chapter 11 , Section 11 .03, Subdivision 2 B, to permit the construction of a deck 7 feet from the side lot line. Code requires 15 feet. I Bob Robertson, representing Ivan S. Kerr, reviewed the proposal with the Board. He plans to construct a deck within 7 feet of a side yard setback. The deck will be constructed within the confines of an existing tie wall . Lynch inquired if the request was for convenience. Robertson said yes. There is a water trap there now. Sandvick asked if there was discussion with the neighbors. Robertson said that there were no neighbors yet. It is new construction. The closest house is four houses down the street. Sandvick asked if there were comments from the audience. There were none. Nine Public Hearing Notices were sent out. No inquires were received by City Hall . MOTION: Lynch made a motion to approve Variance Request #85-22, submitted by Ivan S. Kerr with the following findings: 1) It seems logical to extend the deck to the tie wall . • 2) There is no hardship, howewer there is nothing that is unbeneficial to the health and welfare of the citizens of Eden Prairie. Sandvick seconded the motion. Motion carried unanimously. C. Request #85-23, submitted by William & Barbara Smisek for property located at 9991 Dell Road The request is for a variance from City_ Code, Chapter 11 , Section 11 .03, Subdivision 2 B, to permit platting of a 4.26 parcel zoned rural . Code requires 10 acre minimum. William Smisek, 9991 Dell Road, spoke to the request. Durham noted that at one time Smisek owned two parcels of property. One parcel was 1 .15 acres, the other 19.00 acres. In 1977, the 19.00 acres were sold. In 1982, Smisek bought back 3.11 acres, making the lots 4.26 acres and 15.89 acres . This was not recorded with Hennepin County or the City. The minimum acreage for a parcel zoned rural was increased to 10 acres in 1982. Krueger asked what would be done with the 4.26 acres. Smisek said that was where his home was located. The rest of the acreage was sold in 1977. Krueger inquired who paid the taxes. Smisek replied that he did. Board of Appeals and Adjustments - 3 July 11 , 1985 Durham noted that the City Staff reviewed both properties. The • 1 .15 acre property has a 30 foot access to Dell Road. The 15 acre property has no access; it is landlocked. The City would like to see an easement for a public access plus a plat and dedication of a public street right-of-way and scenic easement along Riley Creek. If approved by Board of Appeals , the request must go to the Planning Commission ar.d the City Council . Krueger asked if there were any comments from the audience. George Marshall , 9905 Dell Road, has property to the west of Smisek. He inquired if Smisek had an easement to Mr. Anderson's 19 acres . Smisek said yes. This was also not recorded. Marshall said that he was not interested in how much land Smisek keeps. He was interested in the right-of-way or easement for the property that Smisek sold across the creek. Marshall does not want to have to furnish easements. His concern was for the ease- ment to the north. MOTION: Lynch made a motion to approve Variance Request #85-23, submitted by William Smisek with the following findings: 1 ) Both the 4.26 acre site and the 15.89 acre site be subject to approval by the Planning Commission and City Council . 2) Both the 4.26 acre site and 15.89 acre site be recorded plats within one year from approval of variance. 3) Both the 4.26 acre site and 15.89 acre site be subject to a scenic easement along Riley Creek. 4) Both the 4.26 acre site and 15.89 acre site be subject to a 30' road right-of-way easement along the southern border of the lots. Sandvick seconded the motion. Motion carried unanimously. D. Request #85-24, submitted by Midwest Asphalt Corporation for property located at 6401 Industrial Drive. The request is for a variance from City Code, Chapter 11 , Section 11 .03, Subdivision 2 B: 1 ) To permit platting of Lot L at 2.3 acres (Code requires 5 acre minimum) . 2) To permit a minimum lot depth for Lot L of 169 feet (Code requires 300 feet) . 3) To permit a minimum lot depth for Lot E of 260 feet (Code requires 300 feet) . 4) To permit truck scale in front yard setback (Code requires 75 feet) . Board of Appeals and Adjustments - 4 - July 11 , 1985 Dick Bury, President of Midwest Asphalt, reviewed the request with the Board. They would like to construct a new office and shop facility for their company. They have a purchase agreement with F & L Enterprises to buy the 108 feet adjacent to their north property line. Krueger inquired if they owned the land next door. Bury replied yes. Krueger suggested that they incorporate the 108 feet into one big lot and move the lot line. Bury said that was part of their original plan. Sandvick asked if Bury had any blueprints. Bury said no, first they wanted to see if the Board would approve the request. There are $2,000 of fees tied up in the surveys . Bury said that he did not want to spend more money if the request was going to be denied. Sandvick said that the Board would like to see some more detail such as: lot lines , parking stalls and landscaping. Bury stated that it is a shop building and there is no room for land- scaping. Bury intends to blacktop the entire area. Sandvick asked how many employees were in the building. Bury said that there are 5 people in the office. They have 20 parking stalls across the street. There is not a lot of room for landscaping and parking. • Durham stated that the City would like to see this area brought up to City Code standards. Separate from the variance request, all other portions of City Code relating to landscaping, building materials, and parking requirements, would be applicable. Any new construction or redevelopment is subject to present City Code. Bury said that if the plant was ever moved, everything would go but the proposed building. Sandvick read from the Staff report for the July 11 , 1985 meeting: "Staff would recommend continuance of Variance Request #85-24 to allow the proponent time to prepare in greater detail a site plan which would warrent the variance requested. The proponent should be directed to: 1 . Submit detailed building plans, 2. Indicate location of parking areas and amount of parking stalls required, 3. Provide a landscape and screening plan. 4. Provide an alternative location for truck scale located outside of 75' front yard setback. " Sandvick noted that the area needs to be cleaned up and brought up to City Code. Bury said that without some encouragement from the Board he is not going to hire an architect. Lynch said that the request looks reasonable to him, but that it lacks detail . Board of Appeals and Adjustments - 5 - July _11 , 1985 Bury stated that the truck scale has to be in front of the building. • Krueger asked if the building could be shifted back. Bury said that they got a 50 foot setback from the back. They are trying to min- imize the variance request. Durham said that the rear setback is 25 feet. Bury stated that they would rather make a longer building then. Lynch noted that the scale is not a building. It is not a big deal . It is just a platform. Lynch felt that the property is fundamentally unique. Sandvick suggested that they slide the building back 25 feet, allowing the truck scale to be out of the front yard setback. Bury said that they could add 25 feet of building to the back. Lynch said that Bury's plan is fundamentally sound, but that it needs detail . Sandvick suggested that Bury get ideas from Staff and bring them back to the Board. Sandvick asked if Bury wanted to continue the variance. Bury said that he would leave it up to the Board. Sandvick said that they could continue the variance or deny it. Bury said that if the Board wanted to continue the variance they could, however, he did not want to spend a large amount of money going to an architect to get plans drawn up. Sandvick said that they weren't asking for that. They were asking for some preliminary drawings showing detail . Durham noted that they needed details such as: landscaping and amount of office space vs. shop space. Bury said all right. Lynch felt that it was unreasonable for Bury to come in and put a box on a piece of paper and expect the Board to approve the variance. The placement must depict areas such as: loading docks, ramps, accesses, etc. It leaves too much to the imagination. Bury said that he understood; it was a misunderstanding on his part. He apologized. There were no comments from the audience. MOTION: Sandvick made a motion to deny Variance Request #85-24, with the following findings: 1 ) The proponent has not showed a strong case to detail to the patterns of his drawing. 2) Proponent had a chance to continue the variance request to the next regularly scheduled Board of Appeals meeting and did not accept it. Board of Appeals and Adjustments - 6 - July 11 , 1985 3) The variance is not in keeping with the spirit and intent of the City Code, 4) No undue hardship has been demonstrated. Lynch seconded the motion. Motion carried unanimously. E. Request #85-25, submitted by William Kelly for property located at 17301 Padons Drive. The request is for a variance from City Code, Chapter 11 , Section 11 .50, Subdivision 6 BC to permit construction of a garage 25 feet from Ordinary High Water Mark Code requires 100 feet) . William Kelly, 17301 Padons Drive, spoke to the request. He would like to build a 22 car garage at the end of the driveway. It is a logical location for the garage. It will not cause undue hardship to the neighbors. The Code requires 100 feet of clearance from Duck Lake. Krueger inquired what other choices there were. Kelly said that as far as the survey is concerned, there is not much choice. Placement of a garage anywhere on his lot would require a variance. Durham noted that the house was constructed in 1963, prior to the Shoreland Ordinance which was adopted in 1982. The house is 60 feet from the Normal Ordinary High Water Mark at the elevation • of 918 feet. Kelly said that it is logical to build the garage at the end of the driveway. If put in another location, it could block the view of the lake for neighbors. Lynch noted that the Watershed District and the Department of Natural Resources do not look favorably on the location. Duck Lake Trail historically has water problems. Kelly stated that he has never had water problems in the basement. Krueger inquired if the problem was the elevation on the location. Durham said that the Ordinary High Water Mark and the Flood Plain are both 915 feet. The Watershed District requires that any structure be built 2 feet above the flood plain. Krueger asked how many feet he would have to put the garage up. Durham said that it would have to be 917 feet. Krueger suggested that Kelly put the garage on the end of the house. Kelly said that was an idea, but it would be easier to build a de- tached garage. Durham said that the DNR would not recommend the garage location 25 feet from the Ordinary High Water Mark. Kelly noted that he must resurvey his land. Kelly felt that he owned more land to the west. Board of Appeals and Adjustments - 7 - July 11 , 1985 Sandvick stated that he would like to see more details and hear other alternatives. Sandvick inquired if there were any neighbors present. Willard Kelchner, 17308 Padons Drive, stated that the location picked for the garage is the best location. It does not deny any neighbors less view of the body of water. If the garage is placed behind the house their view is blocked. Kelchner had, no problem with the proposal . Sandvick asked how many neighbors would be denied a view and what percentage. Kelly said perhaps one neighbor would be denied 100% and it would be from the back windows. Lynch said if the garage is attached to the home it would not block any view. Kelly agreed. Lynch said that the Board is not concerned with economics; its concern is to try to live within the ordinance. Lynch stated that he had a problem with the fact that the DNR re- commended an alternative location. He felt that the variance request should be continued and alternatives brought in. Kelly wondered what the Board needed for details. Sandvick said that the Board needs whatever it takes to satisfy the DNR. Kelly stated that he would like to request a continuance. Kelly asked how much property the City owns from the street line. Durham said that it is usually a 60 foot right-of-way, so it would be approximately from curb to property line. MOTION: Lynch made a motion to continue Variance Request #85-25 submitted by William Kelly, to the next scheduled meeting August 8, 1985. This will allow time for Mr. Kelly to prepare alternative plans and talk with neighbors. Sandvick seconded the motion. Motion carried unanimously. Board of Appeals and Adjustments - 8 - July 11 , 1985 • F. Request #85-26, submitted by Welcome Home for property located at 7170 Bryant Lake Drive. The request is for a variance from pro-. visions of City Code, Chapter 11 , including Sections 11 .03, 11 .45, and 11 .50: 1 ) To permit conversion of a screened porch, 18 feet from the rear lot line, into an office/conference room. 2) To permit a deck addition to the northwest corner of the main structure 15.7 feet from the rear lot line. 3) To permit construction of enclosed stairway, to be added to the west side of the main structure, 34 feet from rear lot line. 4) To permit an addition of a garage and 1-3 above within 150 feet of the Ordinary High Water Mark of General Development Waters. 5) To determine whether proposed changes in the building, constituting a non-conforming use, located on the property, may be made. Steve Schele, Program Director/Administrator of Welcome Home, -re- viewed the request with the Board. Blueprints of the house were displayed. Schele identified the requested variances: 1 ) To permit conversion of a screened porch 18 feet from the rear lot line, into an office/conference room. The screened porch is on the south side of the building. It would be used as an office/meeting room. This would enhance the overall effectiveness of delivery of service by providing private meeting space to both supery sory and client issues. It will not change the external appear- ance of the building. 2) To permit a deck addition to the northwest corner of the main structure 15.7 feet from the rear lot line. t Board of Appeals and Adjustments - 9 - July 11 , 1985 Welcome Home is requesting to keep the deck which is al- ready in place on the northwest corner. It will offer clients a comfortable, secure, stress-free environment. 3) To permit construction of an enclosed stairway, to be added to the west side of the main structure, 34 feet from rear lot line. Welcome Home is required (UBC Table 33 A) to add a stairway, since the occupancy will exceed 10. It will have a minimal impact on the appearance of the building. Without the stairway, they cannot use the facility as effectively for the proposed program. Lynch inquired about the stairway requirements. Schele saidthat the Uniform Building Code requires that they have two stairways a specific distance apart. Even though there are two stairways there now, they are not the required distance apart. Schele referred to provisions in the City Code in regard to the variances. Nothing that Welcome Home wants to do is contrary to anything in these sections. They are all within the harmonyjand intent of the Code. Schele read from City Code, Chapter 11 , Section 11 .45, Subd. 4, Flood Plain Uses, B, 2. It states in part: "Consideration of the effects of a proposed obstructionlor use shall be based on the reasonable assumption that there Will be an equal degree of encroachment extending for an entire reach on both sides of the stream. " Schele felt that the assumption is, as water rises, it is going to extend beyond the banks of the stream. The site that the building sits on is on much higher ground. It is not in danger of flooding. Schele referred to City Code, Chapter 11 , Section 11 .45, Subd. 7, Variance Standards, A. It states in part: "Variances from the strict language of this Section may be granted by the Council only when 1 ) such variance is determined to be in the public interest." Schele noted that the program will serve primarily western Henn- epin County residents and without the stairway, they cannot use Board of Appeals and Adjustments - 10 July 11 , 1985 the program described as effectively. or 2)" where strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration. However, no variance shall have the effect of permitting a lower degree of flood protection than the regulatory flood protection elevation for the land under consideration. The Council shall grant variances only pursuant to the provisions of this Section. " Schele read from City Code, Chapter 11 , Section 11 .45, Subd. 8, Factors and Conditions Upon Which Decisions May be Based. It reads in part: A. " Factors. In passing upon a permit or variance application, the Council shall consider all revelent factors sp cified in this Section, and also consider the followinq factors: 5. The importance of the services provided by the proposed facility to the community. 7. The compatibility of the proposed use with existing devel- opment and development reasonably anticipated in the future. 11 . The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site. " Schel:e stated that the service is badly needed. Also, each of the modifications proposed is highly compatible with the structure as it now exists in terms of both use and appearance. Schele referred to City Code, Chapter 11 , Section 11 .45, Subo. 16, Interpretation. It states in part: "In interpreting and applying the provisions of this Section they shall be held to be the minimum requirements for the pro- motion of the public health, safety, prosperity and general welfare. " Schele felt that the City can grant the variances requested and meet these requirements. Schele read from City Code, Chapter 11 , Section 11 .50, Shoreland Management, Subd. 3, Regulation of Structures Within the Lake. It reads in part: L. 11 Factors Considered Prior to Granting Permit. In exercising its discretion to grant or deny permits , the Council may consider, among other things, the following: 4. Whether the proposed facility will be compatible with adjacent development. " • Schele felt that the facility is highly compatible. Board of Appeals and Adjustments -11 - July 11 , 1985 Schele referred to City Code, Chapter 11 , Section 11 .50, Shoreland • Management, Subd. 7, Additional Zoning Restrictions. In addition to the requirements set out in Subd. 6 above, the following restrict- ions shall apply to all shoreland areas and protected waters. It reads in part: E. ''Exceptions to Zoning Restrictions of this Section. 3. "Where development exists on both sides of a proposed building site within the same lot as the proposed building site, structural setbacks may be altered to take setbacks of existing structures into account if approved by the Building Inspector." Schele said that the garage and the house itself are the existing structure. The stairway would not be significantly close to the stream. Schele noted that Variance Request #4 had been eliminated from the request. Schele said that Variance Request #5 deals with future expansion of the building. There are 3 points on which expansion could be debated: 1 ) The City Council on January 22, 1985, decided that the use had been established as multi-residential . The Attorney General 's opinion substantiates that vote. 2) The Attorney General cited an example which suggested that a change in non-conforming use which is not material under applicable ordinances would not constitute an expansion of a non-conforming use. 3) The Court of Appeals rejected an argument that additional residents on "major physical changes" in a building on a non-conforming site would constitute an expansion of a non- conforming use. (Northwest Residence, Inc. v. City of Brooklyn Center. ) John Koneck, lawyer from the firm of Fredrikson and Bryon, represented several residents of the Willow Creek neighborhood. Koneck, opposes the variance and questioned why Welcome Home was present as they have no interest in the property. Koneck said that there is no ;purchase agreement. Koneck reviewed background information. Don Hanson, owner of the property, entered into a purchase agreement and sold the property to Francis Condon. Condon intended to lease the pro- perty to Welcome .Home. That purchase agreement is no longer in force because certain contingencies in it were not satisfied. Condon has no interest in the property. Koneck felt Welcome Home has no ',interest in the property and they are here prematurely. The matter should either be continued or denied. Schele stated that Welcome Home has demonstrated interest in the property for one year. Board of Appeals and Adjustments - 12 - July 11 , 1985 James Just, Executive Director of Welcome Home, said that Koneck is using a smoke screen attempt, which has been demonstrated time and time again. There is some question as to legality of the continuing purchase agreement. Legal counsel informs Welcome Home that they do indeed have interest to the property. Welcome Home is present here tonight with a valid application. Koneck stated that the owner hasn't joined in avariance application, which concludes that there is no valid purchase agreement. Koneck noted that the setback requirements in the variance are not small . They are for 32 feet, 34 feet, and 16 feet. Koneck referred to City Code, Chapter 11 , Section 11 .45, Subd. 7, A, Variance Stand- ares. (See p. 2. ) Koneck stated that he has not heard any discussion that would fall in the category of undue hardship as required by the ordinance for Welcome Home. Koneck noted that there are 3 criteria for a hardship: 1 ) The property in question can't be put to a reasonable use if the ordinance were enforced. Koneck felt that Welcome Home could be used as a duplex. 2) The plight of the landowner must be due to circumstances unique to his property; not created by the landowner. Koneck felt that the landowner created the problem himself. The plight of the landowner is caused by the fact that the landowner wants to use the property in ways that the zoning ordinance doesn't allow. 3) The variance, if granted, must not alter the essential character of the locality. Koneck noted that it is a single family low density area. The variance will change the area into a high density, apartment, quasi-commercial use. If Welcome Home has to comply with the ordinances regarding setbacks, they are going to suffer econ- omic hardships. Economic hardship alone is not enough to grant a variance. Schele stated that they could not put the structure to a .reasonable use for Welcome Home's purposes without variances. Schele said that they have a contract with Hennepin County to provide service for 16 people. Regarding altering the essential character of the locality, Schele said that the issue of a higher density was discussed at the City Council level . It does not belong before the Board tonight. Krueger stated that he had no problem with the setbacks, He questioned • if granting of the variances is the last step in the Welcome Home approval process. Just replied that they hoped so. Board of Appeals and Adjustments - 13 - July 11 , 1985 Roger Pauly, City Attorney, stated that this request could go to the City Council if someone appealed the decision. Krueger said that if the Board approved the variances, construction could begin. He inquired if Welcome Home had all necessary licenses. Just said that they have applied for the licenses and gone through the entire process . The situation is contingent upon Welcome Home being able to occupy, modify and utilize the building. The health, and program licenses, etc. , all come together at that time. Pauly noted that the only issue that has been determined by the City Council is that the property is presently a proper non-conforming use as a multi-dwelling. Under State Law, use of the licensed facility for up to 16 persons would be permitted. The issue now involves the modifications of the property. There are two basic questions that should be addressed and answered: 1 ) Under the City Code, relating to non-conforming uses, can these physical changes be made to the property. You should disregard the fact that it will be used for a group home facility. That issue is not here; the question is, can the physical changes proposed to the property, be made to a non- conforming structure. 2) The request for the variances should or should not be granted. The same criteria should be used that is used in determining all variances. It raises the issue of whether it should or should not be granted. Pauly suggested that members of the Board make a judgment on their own determination and on the basis of the Code. (Pertinent sections are quoted in the Staff Report. ) The section is intended to limit the number and extent of non-conforming uses by prohibiting their enlargement. Also, the Board can compare sections of the Code that deal with the Shoreland and Flood Plain. The Board must decide if changes are of such a magnitude that they are material , significant, and constitute an expansion. A review of similar cases brought before the State Supreme Court indicates the law on the subject of improve- ments to non-conforming uses is rather chaotic. (Ex. The Northwest Residence case involved a four-plex that was turned into a group home. It had four kitchens which were converted into bedrooms and office space. This did not bother the higher court.) Koneck agreed with Mr. Pauly's statement. Koneck stated that it must be decided if it is an enlargement or an alteration of a non- conforming use or just routine maintenance and repairs. Koneck remarked that the interior of the house is being revamped and cost is an important factor. Initially, the cost was set at $20,000- $30,000. The building permit application represented $50,000. The contractor hired by the Willow Creek neighborhood, estimated the cost to be represented as $65,000. That is 2 or more 2 the value of Board of Appeals and Adjustments - 14 - July 11 , 1985 the property. That is a significant enlargement or extension of a non-conforming use. Koneck read from City Code, Chapter 11 .45 Flood Plain Regulation, Subd. 9. Non-Conforming Structures or Obstructions; Lapse; Des- truction. A, 3. It states in part: "If any non-conforming structure or obstruction is destroyed or damaged by any means, including floods , to the extent that the cost of repairing or restoring such destroyed or damaged non-conforming structure or obstruction would be 50% or more of .the Assessor's Market Value for tax purposes at the time of damage, then it shall not be reconstructed except in full compliance, in all respects, with the provisions of this Section including, but not limited to, the obtaining of all required permits. " Koneck remarked that Welcome Home's building hasn't been damaged, but they are spending 50% or more to fix it up. It is an expan- sion of a non-conforming use. Koneck suggested that they tear the building down and start over. Schele said that virtually none of the changes will be on the exterior. Regarding the cost, it doesn't make sense for Koneck to present it as an argument here as the cost is unknown to them. Just noted that Welcome Home has a firm contractor bid that is not • near $65,000. Just mentioned the case brought before the Supreme Court consisting of a four-plex with modifications along the same lines as Welcome Home and which is a permitted use. A precedent has already been set. Schele said that the Board of Appeals rejected an argument that additional residents or major physical changes in a building in a non-conforming site constitute expansion of a non-conforming use. Koneck stated that he has a copy of the case; there is no language in it regarding the use. Krueger noted that we are here to discuss the variance requests. Koneck said that regarding the Flood Plain Regulation, Section 11 .45, and the Shoreland Management, none of the factors have been discussed. It must be considered if it is an undue hardship and also the effect on the community. Koneck apologized to Welcome Home for his arguments. Koneck felt that the essential character of the neighborhood will be changed. Krueger said that the proposed stairway is no catastrophe. There is a turn-around in the front yard and additional parking spaces will be added. Board of Appeals and Adjustments - 15 - July 11 , 1985 Koneck said that one should look at the building on the interior and the way it will look after all the changes are made. Schele noted that the building itself was chosen because it was re- moved from the rest of the neighborhood. It is on a frontage road. Even though it abutts other property, it has a sense of being isolated with much foliage in the area. Just added that down the road is a salvage company, which is not exactly a residential neighborhood. Dan Grote, 7061 Willow Creek Road, stated neighbors are concerned about a precedent being set along Bryant Lake Drive with Welcome Home in the neighborhood. High density land use is being proposed in an area guided for low density. There will be significant changes in the appearance of the neighborhood. There was also concern re- garding use of the Bren driveway (7150 Bryant Lake Drive) , which was not part of the property's access. Just apologized for his attitude. Just said that the Attorney General has indicated that the property is a multi-use property. The language says that it must be permitted as a use for this type of clientele. Welcome Home is trying to accom- plish provisions as put before them by the State and the City. The parking provisions are City requirements. It would be their preference not to pave. The determination has been made with regard to the character and the nature of the building, any modifications to be made don't alter the character of the building. The only change that would suggest an enlargement or expansion of the physical property itself, would be the stairway. It is not a significant change to the character of the building. If the building were to be continued to be used as a duplex , the requirements would apply anyway. Elaine Sorensen, 7121 Willow Creek Road, felt that the facility would be an expansion of the present site. Sorensen was concerned about the purchase agreement. Krueger felt that the purchase agreement was not an issue. Sorensen said that the Board must decide if the changes are an expan- sion of a non-conforming use. Sorensen asked if the Board would approve those changes if someone other than Welcome Home were proposing changes to the building. MOTION: Lynch made a motion to deny Variance Request #85-26 submitted by Welcome Home with the following findings: 1 ) The conversion of a screened porch, the addition to the deck, and the stairway addition, do ,constitute an enlargement of a non-conforming use. 2) The proposed changes are not in keeping with the spirit and intent of the City Code. Board of Appeals and Adjustments - 16- July 11 , 1985 Sandvick indicated that he would have to abstain from the vote. • Pauly suggested the motion be sure to include: 1 ) Whether or not proposed modifications constitute a change or changes not permitted under the Code for a non-conforming use. 2) Whether or not the variance requested should or should not be granted. Lynch did not understand the difference of including Question #2 in the motion. Pauly explained the difference. If it is concluded that the proposed changes do not constitute an enlargement, are not sig- nificant, not material , and are permitted under Code, his view of the state of the law ,is that a variance is not technically required. Pauly stated that there was a stalemate situation as to the motion for the variance. Motion to deny the variance failed for lack of a second. The motion did include the two questions that Pauly stated. . Lynch stated that we must continue the meeting and have more Board representation. Pauly said that the Public Hearing can be continued to another date so that all parties have an opportunity to present additional information and supplement what they have presented. MOTION: Krueger made a motion to continue the meeting until July 25, 1985. Lynch seconded the motion. Motion carried unanimously. III. OLD BUSINESS None IV. NEW BUSINESS None V. ADJOURNMENT MOTION: Sandvick moved, seconded by Krueger to adjourn the meeting at 9:40 PM. Motion carried unanimously.