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HomeMy WebLinkAboutBoard of Adjustments and Appeals - 07/25/1985 - Special APPROVED MINUTES . BOARD OF APPEALS AND ADJUSTMENTS THURSDAY, JULY 25, 1985 7:30 PM, ADMINISTRATION BLDG. , SCHOOL BOARD ROOM 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: Sandvick was absent. I. VARIANCE A. 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. This variance request was continued from the July 11 , 1985 meeting to allow all parties to have an opportunity to present additional information and supplement what they have presented. Also, it will allow for more Board representation. Chairman Krueger suggested that proponent keep within the two issues that the variance is concerned . They are: 1 ) Would the modifications proposed by 'Welcome Home for property which it proposes to occupy at 7170 Bryant Lake Drive, con- stitute such a change as to violate the provisions of the Cite Code relating to non-conforming structures and; Board of Appeals and Adjustments - 2 - July 25, 1985 2) Is Welcome Home entitled to a variance with provisions maintained in City Code, Chapter 11 , with proposed mod- ifications. Steve Schele, Program Director/Administrator of Welcome Home spoke to the request. Schele noted that Roger Pauly, City Attorney, posed two questions at the July 11 , 1985 meeting: 1 ) Do the modifications we propose constitute an expansion of use? Welcome Home feels that it does not constitute an expansion of use. Schele based this on an opinion of the Attorney General , which was submitted by Mr. Pauly. The State Supreme Court decision dealt with the same issue in other cases. Both of these stand as an argument against the expansion of use. Schele quoted from the Attorney General . It reads in part: "Ordinance provisions against. . .enlargment. . .prohibit only a change in a substantial particular in the structure of the builidng, itself. . .so that there is an effective conversion of the previously existing building into a different structure." • Schele said that it accomplishes Code. 2) Are the variances we request permissible? At the July 11 , 1985,meeting Schele quoted various provisions within the City Code. They are provisions for providing a variance; not loopholes. The provisions speak clearly to the exception that needs to be taken. Dickey asked what rights Welcome Home had in respect to the home. Schele stated that they have a signed purchase agreement and a signed variance request by the owner. Dickey asked the name of the owner. Schele replied that it was Don Hanson. Dickey said that he can understand Welcome Home's concept; he is not against it. Dickey questioned if the property really serves the county when it is on the edge of the county. Dickey has a problem with the place- ment of the property and the number of people in it. The job of the Board is to protect the health and welfare of the citizens of Eden Prairie. Adjacent to Welcome Home's property is single family homes. Dickey wondered if there was not a better place for this type of home. Board of Appeals and Adjustments - 3 - July 25, 1985 James Just, Executive Director of Welcome Home, responded thst • Hennepin County is satisfied and enthusiastic about the proposed location. There have been a number of county studies indicating that there is a population to be served specifically in the western suburbs. Just could not say that this was the best location, however. Welcome Home decided not to invite representatives of the Mental Health Board. Their support was given at a previous meeting. Dickey noted that after looking at all information relating to Welcome Home, it might be best to just build a new building right from scratch. The home could be built in an area that might be more pleasant and more conducive to the other citizens of Eden Prairie. Just said that Council Member Redpath addressed that issue at one council meeting. There will be objections wherever they go. Just added that Welcome Home has provided service to the community for 14 years. They have considered whether it is advantageous to identify a building and make the necessary modifications or build from scratch. It is their determination that the particular char- acter of the building is such that they would like to retain it. Aesthetically speaking,it is an aspect that is appealing to the Mental Health Board. One Board member stated that it was the only facility that she had seen that provides services to clients that she would like to live in. Dickey asked if Just and Schele live in Eden Prairie. They both • replied no. Don Sorensen, 7121 Willow Creek Road, asked Steve Durham, Assistant Planner, if the City has been provided with the signed purchase agreement and variance request. Durham replied that no purchase agreement has been submitted. Welcome Home has been asked twice to bring in a completed application. Just stated that he had a valid agreement. He didn't see any point or appropriateness to having the terms of the agreement shared with people who are opposed to the project. Krueger said that the Board is not asking if they have a purchase agreement or not. Krueger noted that Welcome Home is concerned with improving their property which is already in violation of the Code. Sorensen stated that only the owner or a representative of the owner can make a request for a variance. He questioned the legality of the purchase agreement submitted. There have been representations made by Mr. Hanson, Mr. Koneck, Mr. Grote, and by Mr. Hanson's attorney that he has no factual obligations to Welcome Home or to the third party purchaser who was formerly listed on the purchase agreement. Krueger asked if the Board had received a signed variance request. . Durham replied orginally no, not a full application. Board of Appeals and Adjustments - 4 - July 25, 1985 Durham noted that Francis D. Condon's signature was on the agree- ment just submitted. Just stated that Don Hanson also signed the form. Lynch said that the issues before us are out of order. It is not the Board's decision to decide who owns the property, but to deal with the variance request. Krueger asked if there were any comments from the audience. John Koneck, lawyer with the firm of Fredrikson and Bryon, represent- ed several residents of the Willow Creek neighborhood. Koneck asked if City Attorney Pauly explained the two questions in regard to Welcome Home: 1 ) Would the modifications proposed by Welcome Home, for property which it proposes to occupy at 7170 Bryant Lake Drive, constitute such a change as to violate the pro- visions of the City Code relating to non-conforming structures. 2) Is Welcome Home entitled to a variance from provisions contained in Chapter 11 of the City Code relating to the proposed modifications. It was Koneck's understanding from the July 11 , 1985 meeting that • the second question was addressed not only to the modifications in the form of a variance, but the substantial modifications that Welcome Home was proposing relating both to the exterior and the interior of the building. Durham said that he did not recall the interior being mentioned. Koneck disagreed. Koneck stated that with regard to the first question, it was covered at great length at the July 11 , 1985 meeting. Mr. Pauly highlighted the issue clearly when he said that you have to decide whether the improvements proposed by Welcome Home constitute an expansion or enlargement of a non-conforming use, or merely routine maintenance and repairs relating to a non-conforming use. Koneck noted that the improvements proposed by Welcome Home are substantial . Koneck said that City Building Official !Mayne Sanders told Sorenser that_it would probably be cheaper for Welcome Home to tear the building down and start over again. Koneck noted that the standards that you have to apply when deter- mining whether a variance is appropriate are found in Section 11 .76 of the City Code. It reads in part: 1 ) That strict enforcement of the zoning ordinances would cause undue hardship because of circumstances unique to Welcome Home; and Board of Appeals and Adjustments - 5 - July 25, 1985 2) That the granting of such variances will be in keeping • with the spirit and intent of the zoning ordinance. Koneck stated that Welcome Home has not satisfied either of the standards with regards to comments on the court case. This is not a Supreme Court case, but a Court of Appeals case. The Attorney Gen- gral wasn't asked these questions, The City Council specifically did not address the variance issue, only the use. The City Council did not approve the variances, but directed any variance request to the Board of Appeals and ,adjustments. ' Lynch reviewed his motion of denial that he made at the July 11 , 1985 meeting: 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 of the City Code. Lynch felt that no hardship has been demonstrated. It is hard to look at the stairway and feel the configuration of the wall hasn't changed. Also, the screen porch changed into an office is a sub- stantial change. Perhaps the deck isn't that great an issue. The Watershed District and Flood Plain areas are also an issue. • Sorensen stated that the critical issue was that of expanded use, not a question of type of use that the proponents are attempting to make use of the property. There is an argument that it is simply a situation of bringing things up to Code. Anyone with a non- conforming use may want to make changes and extend the life of the property by bringing it up to Code. If you continue to bring prop- erty up to Code you will continue forever to have non-conforming uses. Sorensen mentioned that there was a letter sent to Roger Pauly from Wayne Sanders dated February 28, 1985, stating 26 items that had to be done to the home and others that needed to be confirmed. Sorensen said that there was representation made at the July 11 , 1985 meeting that $20,000 - $30,000 was the cost for making improvements. The improvements may now cost $50,000, but Welcome Home refuses to show the bid. Sorensen noted that conversation with Sanders indicated that Welcome Home has not yet submitted adequate plans . If Welcome Home has not submitted plans to the Building Department, how can they say if the $50,000 bid is accurate. A $50,000 improvement to a property, simply to bring it up to Code, is an expansion. It is not letting property die its natural death. If $50,000 is spent every 5 years on a property to bring it up to Code, then there will be a new property. Sorensen referred to road access needed. Final consent of Marie and _Bill Bren to get access has not been received. No evidence has been submitteu this evening. Board of Appeals and Adjustments - 6 - July 25, 1985 Marie and Bill Bren are opposed to this request. • Sorensen noted that Welcome Home is requesting a prior illegal act to be legal such as: the addition of a deck with no building permit, putting in a new furnace, etc. The Board is being asked to condone prior illegal acts. The extent of the use and the changes do not show a hardship. Schele said that the $50,000 figure is not in regard to the variance request. Welcome Home owning the building is not any different than anyone else owning the building and bringing it up to Code. With regard to the zoning of the building, the Minnesota Statute reads in part: "A licensed residential facility serving from 7-16 persons shall be considered a permitted multi-family residential use for a property for purposes of zoning. " Schele stated that this particular statute was written specifically for the kinds of reaction in the neighborhood. Neighbors are fear- ful of property values , but it doesn't bear up. Zoning is not a question; it has been dealt with before. In regard to not being the spirit of the City Code, Schele stated that there is a spirit in the City Code that provides for variances . He stated the spirit of the provisions, they are not loopholes, but clear and straight forward. • With regard to hardship, the clients of western Hennepin County are the ones that will suffer hardship. Also, without the stairway, it would be a hardship as it is required by the State Building Code. Schele received on July 9, 1985, the details on building code re- quirements from the City Building Inspector. They had been waiting 12 months for the details. Sorensen handed a copy of the building permit application for Welcome Home to the Board for the stated value of $50,000, MOTION: Lynch made a motion to deny Variance Request #85-26 with the following findings: 1 ) With regard to question #1 posed by Mr. Pauly, the modifications proposed by Welcome Home for property located at 7170 Bryant Lake Drive, do constitute such a change that violates provisions of the City Code relating to non-conforming structure. The proposed changes are significant. 2) With regard to question #2, no undue hardship has been demonstrated, This is a hardship created by Welcome Home's own attempt to take a piece of property that is not suited for the use that they intend to use it for. 3 The conversion of a screened porch, the addition to the deck, and the stairway addition, do constitute an enlarg- ment of a non-conforming use. Board of Appeals and Adjustments - 7 - July 25, 1985 4) The proposed changes are not in keeping with the spirit • and intent of the City Code. Dickey seconded the motion. Discussion: Anderson did not see the material expansion of the property at all . The hardship question is there,if you accept that the property is property utilized in a way Welcome Home wants to use it. It is a hardship because they need the variance to make the facility meet State requirements. Anderson noted that when 'someone wants to build a deck, it usually is allowed and it is not a hardship pper se. If we accept that we are not expanding the use we do have a iardshi p. Anderson was not sure about the conversion of the screened porch. If denied, could Welcome Home come back and ask for the stair<ray. Durham said that the Board can grant variances accordingly. The Beard can modify the request as it deems necessary. Lynch noted that the Council has accepted that we can have multi- residents, but the property is grandfathered in as a multi-residential use. Therefore, they can have 16 people. Dickey felt that the question for the Board is what is for the best interests of Eden Prairie for all involved, Welcome Home as ivaell as the landowners. The Board must look at it as one building and the • intended purpose of the building. We must ask if the building goes along with the area around it. The residents that pay the taxes are the people that must be protected. Anderson felt that Welcome Home is situated on its own. Motion carried--3-1-0. Anderson voted nay. II. NEW BUSINESS None III. OLD BUSINESS None IV. ADJOURNMENT MOTION: Lynch moved, seconded by Dickey, to adjourn the meeting at 8:20 PM. Motion carried unanimously.