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4.a Staff Report Continenz Meeting Date: 05/05/2009 Agenda Item: g g i t ; ) 71 Planning Commission/ ‘_( City Council Agenda Report City of Scandia 14727 209th St. North Scandia, MN 55073 (651) 433-2274 Action Requested: The Planning Commission is requested to hold a public hearing on the application of James and Sandra Continenza for a variance to allow an addition to an existing accessory structure which will exceed the allowable square footage (3,888 vs. 3,500 sq. ft.) at 19423 Oxboro Avenue North. The Commission should make a recommendation to the City Council whether the variance should be approved, denied, or tabled to obtain additional information. If the application is recommended for denial, the Commission should recommend findings and reasons for denial. If the request is tabled, or additional time is needed to prepare findings, the City would need to invoke its right to extend the review period by an additional 60 days. Deadline/ Timeline: 60-day review period expires May 5, 2009 Background: • The site is zoned "AG", Agriculture and is in the Shoreland Overlay District for Sand Lake. The Future Land Use Map of the Comprehensive Plan designates the site as "GR", General Rural. • The property tax statement shows this parcel to be approximately 23 acres. At purchase, the applicant received a survey that showed the parcel to contain 20.004 acres above the estimated ordinary high water (OHW) level of Sand Lake. When this survey was completed the OHW was considered to be a point between aquatic and terrestrial vegetation. • At a later date, the Minnesota Department of Natural Resources (DNR) established the exact elevation for the ordinary high water (OHW) level of Sand Lake to be 963.2 ft. Using this OHW a new survey shows that the area of the parcel above the OHW is 19.946 acres. • With a parcel size less than 20 acres and greater than 10 acres, the zoning ordinance allows accessory buildings up to 3500 square feet. With a parcel greater than 20 acres the zoning ordinance allows accessory buildings up to a total size of 4500 square feet. • The applicant proposes to construct a new agricultural building of 2,688 sq. ft., to be attached to an existing 1,200 sq. ft. structure for a total of 3,888 square feet. The building would be used for storage of equipment used in the growing of grapes and the making and processing of wine. • The proposed building is otherwise in conformance with all other requirements of the zoning ordinance. The proposed structure is located 240 feet from Oxboro Ave N. and is greater than 100 feet from either side yard. The proposed structure would be attached to the existing structure to limit the impact on the view from the road. • A variance is the modification or variation of the Zoning Regulations where it is determined that, by reason of exceptional circumstances, the strict enforcement of the ordinance would cause unnecessary hardship. The criteria for granting a variance are contained in Section 6.4 of Chapter 1 of the Scandia Development Code (see excerpt, attached.) Recommendation: Staff recommends approval of the variance. A draft resolution with findings of fact and conditions of approval has been prepared for the Commission's and Council's use. The applicant purchased the property in reliance on a survey that indicated the parcel had sufficient size to allow construction of a building needed for his agricultural use of the property. A later survey showed the lot to be only about 2,350 square feet, or .054 acre smaller than the 20 acres required for their proposed building. A hardship exists because the plight of the landowner is due to circumstances unique to the property, not created by the landowner. The hardship was created when the DNR changed its definition of the OHW for Sand Lake. The variance requested (an additional 388 square feet of building area) seems to be reasonable and appears to be the minimum necessary to relieve the hardship. The design and use of the proposed accessory structure appear to be in harmony with the general purpose and intent of the Zoning Ordinance and Comprehensive Plan. Attaching the structure to the existing building will help screen the structure from the road. The proposal will not alter the essential character of the area. Attachments/ • Draft Resolution 05-05-09-01 Approving the Variance Materials provided: • Location map • Application for variance • Site drawing, legal description, building elevations and aerial view. • Area calculations: entire property, area above upland vegetation line and area above 963.2 elevation 2 • Excerpt of Scandia Development Code, Chapter 1 Section 6.4, Criteria for Granting Variances • League of Minnesota Cities Publication: Variances, Frequently Asked Questions Contact: Mark Rossi, 651-433-4616 Prepared by: Steve Thorp, Code Official & Anne Hurlburt, City Administrator I 9423 Oxboro Ave Corninenza variance 3 CITY OF SCANDIA, MINNESOTA RESOLUTION NO. 05-05-09-01 APPROVING VARIANCE REQUEST FOR 19423 OXBORO AVENUE N. WHEREAS, James and Sandra Continenza have made application for a variance to construct a new accessory structure of 2,688 sq. ft. to be attached to an existing 1,200 sq. ft. structure, for a total area of 3,888 sq. ft., on property located at 19423 Oxboro Avenue North; and WHEREAS, the property is legally described as follows: Sect-26 Twp-032 Range-020 NW1/4-SEI/4 263220 EXC A STRIP 2 RDS WIDE ALONG THE SOUTH LINE &EXC:26. 032.20.42.0003-BEING PT S 350 FT NW1/4-SE1/4S26T32R20 LYING WLY OF C/L OF OXBORO AVE N AS PRESENTLY TRAVEL&THT PT OF S 300FT OF SD NW 1/4-SET/4 LYING ELY OF SD C/L&THAT PT OF N 100FT OF S 400FT OF SD NW 1/4- SE1/4 LYING E OF W 1230FT OF SD NW1/4-SE1/4 & THE S 400FT OF NEI/4-SE 1/4 OF SD SEC 26 & EXC:26.032.20.42.0002 BEING PT NW 1/4-SE 1/4 S26T32R20-BEING TH AT PT OF N 250FT OF S 600FT OF SD NW1/4-SE1/4 SEC26 LYING WLY OF THE C/L OF OXBORO AVE N AS PRESENTLY TRAVELED&THAT PT OF N 300FT OF S 600FT OF W 1230FT OF SD NW1/4-SE1/4 LYING ELY OF SD C/L & EXC THAT PT OF N1/2-SE1/4 S26T32R20 DESC AS FOLL:COM'@NW CORN OF S 600FT OF SD N1/2 THN ELY ALG THE N LN OF SD S 600FT A DIST 658.14 FT TO THE POB OF PARCEL TO BE DESC THN NELY DEFLECT TO LEFT 58DEG24'13" A DIST 66.35FT THN SELY DEFLECT TO RT 75DEG37104"A DIST' 190.96FT TO SD N LN OF S 600FT THN WLY ALG SD N LN A DIST OF 217.17FT TO POB&EXC:N 310FT OF NW 1/4-SET/4 &THE N 351FT OF NE1/4-SE1/4 BOTH IN S26T32R20-SUBJ TO OXBORO AVE N, Washington County,Minnesota; and WHEREAS, the Planning Commission reviewed the request at a duly noticed Public Hearing on May 5, 2009,and has recommended approval of the variance; and NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCANDIA, WASHINGTON COUNTY, MINNESOTA, that it should and hereby does approve the request of James and Sandra Continenza for a variance to allow an accessory structure exceeding the allowable square footage based on the following findings: 1. The property tax statement shows this parcel to be approximately 23 acres. 2. The applicant purchased the property in reliance upon a survey that showed the parcel to contain 20.004 acres above the estimated ordinary high water(OHW) level of Sand Lake. • Resolution No.: 05-05-09-0 I Page 2 of 2 When this survey was completed the OHW was considered to be a point between aquatic and terrestrial vegetation. With a parcel greater than 20 acres, the zoning ordinance allows accessory buildings up to a total size of 4500 square feet. 3. At a later date the Minnesota Department of Natural Resources established the exact elevation for the ordinary high water (OHW) level of Sand Lake to be 963.2 ft. Using this OHW a new survey shows that the area of the parcel above the OHW is 19.946 acres. 4. With a parcel size less than 20 acres and greater than 10 acres, the zoning ordinance allows accessory buildings up to 3500 square feet. 5. The applicant needs an accessory structure of 3,888 sq. feet for an agricultural use of the property, consistent with the Comprehensive Plan. 6. The proposed building is otherwise in conformance with all other requirements of the zoning ordinance. The proposed structure is located 240 feet from Oxboro Ave N. and is greater than 100 feet from either side yard. The proposed structure would be attached to the existing structure to limit the impact on the view from the road. 7. A hardship exists because the plight of the landowner is due to circumstances unique to the property, not created by the landowner. The hardship was created when the DNR changed its definition of the OHW for Sand Lake. 8. The variance requested (an additional 388 square feet of building area) is reasonable and is the minimum necessary to relieve the hardship. 9. The proposed accessory structure is in harmony with the general purpose and intent of the Ordinance and the Comprehensive Plan. 10. The variance will not alter the essential character of the area. FURTHER BE IT RESOLVED, that the following conditions of approval shall be met: 1. That the accessory structure shall be built in conformance with the site plan and building plans received by the City and dated January 8, 2009. 2. That all fees are paid. Adopted by the Scandia City Council this 5th day of May, 2009. Dennis D. Seefeldt, Mayor ATTEST: Administrator/ Clerk ArcIMS Viewer Page 1 of 2 . ;.f" ,r�y 21 s 7.1 �I 2 l iICI 2 2 ` 1 112 4 4 � r 19t4114 .4 58 198011 fi "14 S 5-4 ,›� t 4 :t a 6 ,,`4 "131 "q 1464 .N.:P1 � r 1 \it c 1 " ` 3 , 19 5' 0 tOS # **-'4.1 i 9609 ) �3 ,. 19477 46. filo42 r /// f l L,A!<.. 9423 ©x601W1 A-UE N '24y . 55 14 : 2«v' 1 927.5 • P, , . 41rAr ,,,,,''' 225 4 4 44 14939 Li.... File No. o'/ 7 APPLICATION FOR PLANNING AND ZONING REQUEST City of Scandia, Minnesota 14727 209th Street North, PO Box 128, Scandia, MN 55073 651/433-2274 Facsimile Machine 651/433-5112 Please read before completing: The City will not begin processing an application that is incomplete. Detailed submission requirements may be found in the Scandia Development Code, available at the City office and website(www.ci.scandia.mn.us) and in the checklist forms for the particular type of application. Application fees are due at the time of application and are not refundable, 1. Properly Location: (street address, if applicable) I ci ?) (`-) e It A 1.-A-(' f\J 11'14 2. Washington County Parcel ID: - (JO() 3. Complete Legal Description: (attach if necessary) kc.] 4. Owner(s): Phone: (h) (b) Street Address: -11 IS- I VAL vs-) c c t E-Mail: - — City/ State: LA.,:v_c , (\ , N.c Zip: 5. Applicanetontact PerioDi: Phone: (h) 3J3 P. (b) I - I LI Street Address (Mailing): E-Mail: cc L 141-e \ 4 Sc10-- ( A l' \CL`\--c-1 City/ State: 0,\(:xv cr,r) cru _ Zip: 6. Requested Action(s): (check all that apply) 4/ Variance Minor Subdivision Conditional Use Permit Planned Unit Development Interim Use Permit Preliminary Plat/ Major Subdivision Certificate of Compliance (Residential) Preliminary Plat/Open Space Conservation Subdivision Certificate of Compliance(Commercial) Final Plat Map Amendment (Zoning or Comprehensive Plan) Permit Extension Text Amendment (Zoning or Comprehensive Plan) Other 7. Brief Description of Request: (attach separate sheet if necessary) c. I I (,A k_ -\4 k t- A LI tC Lk_ t - - 8. Project Name: \ )1/4. (...` ,[1/4_ , (( L I hereby apply for consideration of the above described request and declare that the information and materials submitted with this application are complete and accurate. I understand that applicants are required to reimburse the city for all out-of-pocket costs incurred for processing, reviewing and hearing the application. These costs shall include,but are not limited to: publication and mailing of notices; review by the city's engineering, planning and other consultants; legal costs, and recording fees. An escrow deposit to cover these costs will be collected by the city at the time of application. Any balance remaining after review is complete will be refunded to the applicant. No interest is paid on escrow deposits. PLEASE NOTE: If the fee owner is not the applicant, the applicant must provide written authorization by the fee owner in order for this application to be considered complete. Property Fee Owner Signature(s) Date: Applicant Signature(s) Date: \ e)/:(/ ci For City Use Only Application Fees: /50 , 0 5-s Parcel Search Fee: 1'1/52 oc Escrow Deposit: 5 • 00 . ,. . / // 1'1 k 67-111 /1 /7 I `k_i -----• ,,,,,--) 1:',,,( (/' i---4,-/ / ' -'- ,.____, ) Gz 1) ---I- 'k i ). \ \ l \ \ 1. \ I . \ , \ \ ; I \ ------- , I I I II I i f 1 i I / / i T / „, , _ „, • 1 _ .,. c ., ... .., ,....,.,..,. ---. 7 _.....-- ..------ i n i t.,17 i i 1 ... , 1 (e 1 f I IA ,... . 1 : 7 QY . r , . ---..--...„_. - .............-...... Washington County Property Information Page 1 of 1 Close Window Tax Description for 2603220420004. Sect-26 Twp-032 Range-020 NW1/4-SE1/4 263220 EXC A STRIP 2 RDS WIDE ALONG THE SOUTH LINE &EXC:26. 032.20.42.0003-BEING PT S 350 FT NW1/4-SE1/4 S26T32R20 LYING WLY OF C/L OF OXBORO AVE N AS PRESENTLY TRAVEL & THT PT OF S 300FT OF SD NW1/4-SE1/4 LYING ELY OF SD C/L &THAT PT OF N 100FT OF S 400FT OF SD NW1/4- SE1/4 LYING E OF W 1230FT OF SD NW1/4-SE1/4 &THE S 400FT OF NE1/4- SE1/4 OF SD SEC 26& EXC:26.032.20.42.0002 BEING PT NW1/4-SE1/4 S26T32R20-BEING TH AT PT OF N 250FT OF S 600FT OF SD NW1/4-SE1/4 SEC26 LYING WLY OF THE C/L OF OXBORO AVE N AS PRESENTLY TRAVELED &THAT PT OF N 300FT OF S 600FT OF W 1230FT OF SD NW1/4-SE1/4 LYING ELY OF SD C/L& EXC THAT PT OF N1/2-SE1/4 S26T32R20 DESC AS FOLL:COM @NW CORN OF S 600FT OF SD N1/2 THN ELY ALG THE N LN OF SD S 600FT A DIST 658.14 FT TO THE POB OF PARCEL TO BE DESC THN NELY DEFLECT TO LEFT 58DEG24'13"A DIST 66.35FT THN SELY DEFLECT TO RT 75DEG37'04"A DIST 190.96FT TO SD N LN OF S 600FT THN WLY ALG SD N LN A DIST OF 217.17FT TO POB & EXC: N 310FT OF NW1/4-SE1/4&THE N 351FT OF NE1/4-SE1/4 BOTH IN S26T32R20-SUBJ TO OXBORO AVE N � 3 o X3oRo ..1F N . .... ..a)... a) 13.) a) a) c I b (D 10 cv co 0_ :..,.. 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Cl) 0) a) c a) c C 4D CD E 8 co 0 0 0 cp 0 CO. 0 a (,) fp.... -0 0.3 -0 ii2 CD c CD 0) C 03 ...- 03 ...... c0 GO 03 CD 12 03 Z 100N11 ' `n"n"d /zAmr o",u=r,`vuhonla. xlinaymm./x,vuh/im° (12) impervious Surface, The portion of the |o| covered xi1h hoi|dio-s including all appurtenances., (13) Loicnsipo Yc.gn(aiun The complete removal of trees or shrubs in n contiguous nakj'. strip, row, or block. (14) Lake_- Natural environment. Generally omu |, often dha(ow takes with limited capacities for assimilating the impacts of development and recreational use. They often have mUacm| lands with substantial constraints for devetopmeril such as hig)h water tables, exposed bedrock, and unsuitable soils. (15) iuko - Rrcrea\ionx Development, 6cnondk mcdUum-sized iakcs o[`uryin- dcpUm and mhoncm with u rminty of land form, soil, and groundwater situations on the lakes around ihcnn. They often are ohoroc|cnzod hy roodco\(c |cvc|o of' recreational use and cxisxn-1 development. Development consists mainly of seasonal and year-round residences and recreational nhcn{rd commercial uses. (16) Lot Width. The horizontal distance hciv/eon the side |n\ lines of |o( measured at the ordinant high water nnu,k, setback line, und road right-of-way. (/7) Ordinary High Water Level. The boundary orpuNicmKcoandnetlands, andshuUhcan - elevation dclinouhn� <hchi�bcxi xu�r \cvc| uJ�ich hus hccn nu�n��ncd Cor uyuOicient period of time (o leave evidence upon the landscape, commonly �� point whc� �o naturalvegetation changes hnnn predomJnmn(k aquatic to predonx ' dv terrestrial, For water courses, the ordinary high water level is the elevation of the (op of the bank of the channel. For osmnv�o and Oonn�n, dh� nrdino�' biuh water |erd ix ibo operating elevation of the normal summer pool. On |udco with un cokahhshcd ordinary high wokx |end by the Minnesota Department of Natural Resources. that | bal| be considered the oodiuun' high water level. (18) Public Waters. An' water un defined in Minnesota Statutes, Section }0]G.005(15) (19) Riparian Lot. A |(t with frontage nn the lake, (20) Sensitive Resources ManK�emeni The preservation and maria0onen\ of areas unsuitable for development in their natural state due to constraints such as oho]|ox' soil over groundwater or bedrock, highly erosive or expansive aoi|s, steep slopes, susccphhihk to flooding, or occurrence or flora and fauna io need o[special protection. (21) Shore Impact Zone. Lund located hc\vecn the ordinary high water level of public `+ulor and a line parallel to it at n setback, o[50 percent of the required o1rucknc setback. (22) Sborciand. Lund located within the [h||orving distances from the ordinary high water derobono[public waters: (A)Land "i1hin |'U0U feet from the normal high watermark o[o lake, pond orflowage: or, ot.� "/xca,d/"o="1oprn"mCode 5,1-;'2 Parcel name: Area of entire property North: 276731.9992 East : 508731.5024 Line Course:N 89-54-49 E Length: 1318.38 North: 276733.9870 East : 510049.8809 Line Course: S 00-04-40 W Length: 368.29 North: 276365.6974 East : 510049.3809 Line Course:N 89-58-52 W Length: 1734.00 North: 276366.2690 East : 508315.3810 Line Course:N 72-46-01 W Length: 190.96 North: 276422.8427 East : 508132.9937 Line Course: S 31-36-55 W Length: 66.35 North: 276366.3399 East : 508098.2121 Line Course: N 89-58-52 W Length: 177.99 North: 276366.3985 East : 507920.2222 Line Course:N 89-58-52 W Length: 507.15 North: 276366.5657 East : 507413.0722 Line Course:N 00-00-39 E Length: 404.44 North: 276771.0057 East : 507413.1487 Line Course: N 89-54-49 E Length: 294.61 North: 276771.4499 East 507707.7583 Line Course: N 89-54-49 E Length: 1023.79 North: 276772.9936 East : 508731.5472 Line Course: S 00-02-40 W Length: 41.00 North: 276731.9936 East : 508731.5154 Perimeter:6126.96 Area: 1,012,528 sq. ft. 23.244 acres Mapcheck Closure-(Uses listed courses and chords) Error Closure:0.0141 Course: S 66-30-44 E Error North: -0.00564 East : 0.01298 Precision 1: 434.536.17 Parcel name: Area above upland vegetation line North: 2771(11.1729 East : 517145,5618 Line Course: N 89-54-49 E Length: 1318.38 North: 277103.1607 East : 518463.94(13 Line Course: S 00-04-40 W Length: 368.29 North: 276734.8710 East : 518463.4403 Line Course: N 89-58-52 W Length: 1734.00 North: 276735.4427 East : 516729,44(14 Line Course: N 72-46-01 W Length: 190.96 North: 276792.0163 East : 516547,0531 Line Course: S 31-36-55 W Length: 66.35 North: 276735.5135 East : 516512.2715 Line Course: N 89-58-52 W Length: 178.83 North: 276735.5725 East : 516333.4415 Line Course: N 25-04-13 W Length: 22.25 North: 276755.7263 East : 516324.0135 Line Course: N 47-25-39 W Length: 40.98 North: 276783.4502 East 516293.8350 Line Course: N 35-46-44 W Length: 50,11 North: 276824.1034 East : 516264.5377 Line Course: N 55-36-20 W Length: 49.37 North: 276851.9919 East : 516223.7992 Line Course: N 47-39-53 W Length: 37.96 North: 276877.5567 East : 516195.7385 Line Course: N 76-01-47 W Length: 54,27 North: 276890.6585 East : 516143.0738 Line Course: N 58-55-56 W Length: 32.83 North: 276907.6005 East : 516114.9530 Line Course: N 54-11-33 W Length: 33.12 North: 276926.9778 East : 516088.0931 Line Course: N 58-49-17 W Length: 27.33 North: 276941.1267 East : 516064.7107 Line Course: N 27-39-09 E Length: 11.09 North: 276950.9500 East : 516069.8576 Line Course: N 54-37-16 E Length: 81.46 North: 276998.1138 East : 516136.2753 Line Course: N 31-59-29 E Length: 23,47 North: 277018.0193 East : 516148.7096 Line Course: N 10-24-38 W Length: 93.13 North: 277109.6163 East : 516131.8809 Line Course: N 22-24-22 W Length: 33.54 North: 277140.6242 East : 516119.0965 Line Course: N 89-54-49 E Length: 2.72 North: 277140,6283 East : 516121,8165 Line Course: N 89-54-49 E Length: 1023,79 North: 277142.1719 East : 517145.6(154 Line Course: S 00-02-40 W Length: 41.00 North: 277101.1719 East : 517145,5735 Perimeter: 5515.23 Area: 871,368 sq. ft, 20.004 acres Mapcheck Closure - (Uses listed courses and chords) Error Closure: 0.0118 Course: S 85-16-19 E Error North: -0.00098 East : 0.01180 Precision I: 467,392,37 Parcel name: Area of land above 963.2 feet North: 276731.9992 East : 508731.5024 Line Course: N 89-54-49 E Length: 1318,38 North: 276733.9870 East : 510049.8809 Line Course: S 00-04-40 W Length: 368.29 North: 276365,6974 East : 510049.3809 Line Course: N 89-58-52 W Length: 1734.0() North: 276366,2690 East : 508315.3810 Line Course: N 72-46-01 W Length: 190.96 North: 276422.8427 East : 508132,9937 Line Course: S 31-36-55 W Length: 66.35 North: 276366.3399 East : 508098.2121 Line Course: N 89-58-52 W Length: 177.99 North: 276366.3985 East : 507920.2222 Line Course: N 20-39-25 W Length: 19.49 North: 276384.6355 East : 507913.3466 Line Course: N 41-57-24 W Length: 30.94 North: 276407.6441 East : 507892.6611 Line Course: N 36-38-12 W Length: 30.34 North: 276431.9900 East : 507874.5561 Line Course: N 42-54-19 W Length: 34.27 North: 276457.0921 East : 507851.2255 Line Course: N 54-05-37 W Length: 39.13 North: 276480.0404 East : 507819.5311 Line Course: N 53-35-08 W Length: 41.66 North: 276504.7706 East : 507786.0055 Line Course: N 69-32-14 W Length: 44.65 North: 276520.3802 East : 507744.1729 Line Course: N 67-45-58 W Length: 26.75 North: 276530.5021 East : 507719,4118 Line Course: N 55-57-00 W Length: 41.90 North: 276553.9626 East : 507684.6956 Line Course: N 59-48-37 W Length: 31.67 North: 276569.8883 East : 507657.3212 Line Course: N 10-56-57 W Length: 6.54 North: 276576.3093 East : 507656.0790 Line Course: N 71-29-01 E Length: 15.86 North: 276581.3460 East : 507671.1180 Line Course: N 66-35-42 E Length: 31.20 North: 276593.7395 East : 507699.7508 Line Course: N 51-16-01 E Length: 25.72 North: 276609.8324 East : 507719.8142 Line Course: N 20-27-43 E Length: 27.02 North: 276635.1475 East : 507729.2600 Line Course: N 16-35-06 E Length: 28.74 North: 276662.6919 East : 507737.4635 Line Course: N 12-44-36 W Length: 44,80 North: 276706,3884 East : 507727.5813 Line Course: N 02-58-39 E Length: 21.91 North: 276728,2688 East : 507728,7194 Line Course: N 30-53-41 W Length: 23.39 North: 276748,340(1 East : 507716.7095 Line Course: N 21-10-49 W Length: 24,78 North: 276771.4461 East : 507707.7564 Line Course: N 89-54-49 E Length: 1023,79 North: 276772.9897 East : 508731.5453 Line Course: S 00-02-40 W Length: 41.00 North: 276731.9897 East : 50873 I.5134 Perimeter: 5511.52 Area: 868.843 sq. it. .19.946 acres Mapeheck Closure - (Uses listed courses and chords) Error Closure: 0.0146 Course: S 49-24-08 E Error North: -0.00949 East : 0.011(17 Precision 1: 377,501,37 • LEAGUE OF CONNECTING & INNOVATING MINNESOTA SINCE 1913 CITIES VARIANCES Frequently Asked Questions What is a variance? A variance is a way that a city may allow an exception to part of a zoning ordinance. It is a permitted departure from strict enforcement of the ordinance as applied to a particular piece of property. A variance is generally for a dimensional standard (such as setbacks or height limits). A variance allows the landowner to break a dimensional zoning rule that would otherwise apply. Who grants a variance? Minnesota law provides that requests for variances are heard by a body called the board of adjustment and appeals; in many smaller communities, the planning commission or even the city council may serve that function. A variance decision is generally appealable to the city council. For more information, see Minn. Stat. 462.357. When can a variance be granted? A variance should be granted if strict enforcement of the zoning ordinance as applied to a particular piece of property would cause the landowner "undue hardship," The landowner is generally entitled to the variance if and only if the applicant meets the statutory three-factor test for undue hardship. If the applicant does not meet all three factors of the statutory test, then a variance should not be granted. For more information, see Minn, Stat. § 462.357. What kind of authority is the city exercising? A city exercises so-called "quasi-judicial" authority when considering a variance application. This means that the city's role is limited to applying the legal standard of undue hardship to the facts presented by the application. The city acts like a judge in evaluating the facts against the legal standard. If the applicant meets the standard, then the variance should be granted. In contrast, when the city writes the rules in a zoning ordinance, the city is exercising "legislative" authority and has much broader discretion. What is undue hardship? Undue hardship is a legal standard set forth in law that cities must apply when considering applications for variances. It is a three-factor test and applies to all requests for variances. To constitute undue hardship, all three factors of the test must be satisfied. For more information, see Minn. Stat. § 462.357. This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. LEAGUE OF MINNESOTA CITIES 115 UNIVERS!FY AVE IVES1 PHONE (651) 281-1200 FAX: 1651) 281-1298 INSURANCE TRUST ST PAUL MN 55103 20-1,1 TOLL HUE (800) 925-1122 WEE,:WWW Liv\C ORG SruiII Cities Track - 2009 What are the undue hardship factors? The first factor is that the property cannot be put to a reasonable use without the variance. This factor means that the landowner would like to use the property in a particular reasonable way but cannot do so under the rules of the ordinance. It does not mean that the land cannot be put to any reasonable use whatsoever without the variance. For example, if the variance application is for a building too close to a lot line, or does not meet the required setback, the focus of the first factor is whether the request to place a building there is reasonable. The second factor is that the landowner's problem is due to circumstances unique to the property not caused by the landowner. The uniqueness generally relates to the physical characteristics of the particular piece of property, that is, to the land, and not personal characteristics or preferences of the landowner. When considering the variance for a building to encroach or intrude into a setback, the focus of this factor is whether there is anything physically unique about the particular piece of property, such as sloping topography or other natural features like wetlands or trees. The third factor is that the variance, if granted, will not alter the essential character of the locality, Under this factor consider whether the resulting structure will be out of scale, out of place, or otherwise inconsistent with the surrounding area. For example, when thinking about the variance for an encroachment into a setback, the focus is how the particular building will look closer to a lot line and if that fits in with the character of the area. What about economic considerations? Sometimes landowners insist that they deserve a variance because they have already incurred substantial costs or argue they will not receive expected revenue without the variance. State statute specifically notes that economic considerations alone cannot create an undue hardship, Rather, an undue hardship exists only when the three statutory factors are met. Can a city grant a use variance? Sometimes a landowner will seek a variance to allow a particular use of their property that would otherwise not be permissible under the zoning ordinance. Such variances are often termed "use variances" as opposed to "area variances" from dimensional standards. Use variances are not generally allowed in Minnesota—state law prohibits a city from permitting by variance any use that is not permitted under the ordinance for the zoning district where the property is located. For more information, see Minn. Stat. § 462.357. Is a public hearing required? Minnesota statute does not clearly require a public hearing before a variance is granted or denied, but many practitioners and attorneys agree that the best practice is to hold public hearings on all variance requests. A public hearing allows the city to establish a record and elicit facts to help determine if the application meets the undue hardship factors. What is the role of neighborhood opinion? Neighborhood opinion alone is not a valid basis for granting or denying a variance request. While city officials may feel their decision should reflect the overall will of the residents, the task in considering a variance request is limited to evaluating how the variance application meets the 2 Small Ciliec`track -2009 statutory undue hardship factors. Residents can often provide important facts that may help the city in addressing these factors, but unsubstantiated opinions and reactions to a request do not form a legitimate basis for a variance decision. If neighborhood opinion is a significant basis for the variance decision, the decision could be overturned by a court. What is the role of past practice? While past practice may be instructive, it cannot replace the need for analysis of all three of the undue hardship factors for each and every variance request. in evaluating a variance request, cities are not generally bound by decisions made for prior variance requests. If a city finds that it is issuing many variances to a particular zoning standard, the city should consider the possibility of amending the ordinance to change the standard. When should a variance decision be made? A written request for a variance is subject to Minnesota's 60-day rule and must be approved or denied within 60 days of the time it is submitted to the city, A city may extend the time period for an additional 60 days, but only if it does so in writing before expiration of the initial 60-day period. Under the 60-day rule, failure to approve or deny a request within the statutory time period is deemed an approval, For more information, see Minn. Stat. § 15.99. How should a city document a variance decision? Whatever the decision, a city should create a record that will support it. In the case of a variance denial, the 60-day rule requires that the reasons for the denial be put in writing. Even when the variance is approved, the city should create or direct a written statement explaining the decision. The written statement should explain the variance decision, address each of the three undue hardship factors and list the relevant facts and conclusions as to each factor. Can meeting minutes adequately document a variance decision? If a variance in denied, the 60-day rule requires a written statement of the reasons for denial be provided to the applicant within the statutory time period. While meeting minutes may document the reasons for denial, usually a separate written statement will need to be provided to the applicant in order to meet the statutory deadline. A separate written statement is advisable even for a variance approval, although meeting minutes could serve as adequate documentation, provided they include detail about the decision factors and not just a record indicating an approval motion passed. Can a city attach conditions to a variance? By law, a city may impose conditions when it grants variances to insure compliance and to protect adjacent properties, Any such conditions should relate back to the subject of the variance request. For instance, if a variance is granted to exceed an otherwise applicable height limit, any conditions attached should presumably relate to mitigating the affect of excess height. For more information, see Minn. Stat. § 462.357. What happens to the variance once granted? A variance once issued is a property right that "runs with the land" so it attaches to and benefits the land and is not limited to a particular landowner. A variance is typically filed with the county recorder. Even if the property is sold to another person, the variance applies. 3 Small Cities Track-2009