Item 10 Date Application Received: 02/22/17 Date Application Considered as Complete: 03/06/17 60-Day Review Period Expires: 05/05/17 To: From: Chair Thiesse and Planning Commission Members Doug Reeder, Interim City Administrator Melanie Curtis, Planner mcc Date: 20 March 2017 Subject: #17-3916, Peter Eskuche o/b/o Forrest Burke, 1020 Tonkawa Road, Variances Public Hearing Application Summary: The applicant is requesting an average lakeshore setback variance for a new home. Because setback variances are requested and the lot width is substandard, a lot width variance is also required. Staff Recommendation: Planning Department Staff recommends approval. Background The new owner is planning to redevelop the subject property. They wish to construct the replacement residence in a similar location as the existing home. In order to do so they are requesting an average lakeshore setback variance to construct the home slightly ahead of the existing and relatively in line with a majority of the neighboring homes on this shoreline. The home to the north, which determines the subject property s setback, is situated farther back from the lake than the majority of the neighboring homes. The subject property has approximately 100 feet of width where 140 feet is required. Because the applicant is requesting an average lakeshore setback variance, the lot width variance cannot be administratively approved according to Section 78-72. LOT ANALYSIS WORKSHEET Section 78-330 - Setbacks: LR-1B Required Proposed Rear 50 +350 North Side 10 19 South Side 10 12 Lakeshore 75 188 Portions of the home encroach 30 feet lakeward of the Average Lakeshore average lakeshore setback line; the elevated terrace encroaches as much as 40 feet.
Section 78-330 - Lot Area/Width: LR-1B Lot Area Lot Width Required 43,560 s.f. (1.0 acres) 140 Actual 79,000 s.f. (1.8 acre) 100 @ 75 / 100 @ OHWL Section 78-1403- Structural Coverage: Total Lot Area Total Structural Coverage 79,000 s.f. (1.8 acre) Allowed: 11,850 s.f. (15%) Proposed: 5,153 s.f. (6.5%) Section 78-1700 -Hardcover Calculations: Stormwater Overlay District Tier Tier 1 Total Area in Zone 79,000 s.f. Allowed Hardcover 19,750 s.f. (25 %) Proposed Hardcover 15,358 s.f. (19.4%) 300 s.f. w/in 75 (existing) Applicable Regulations: Lot Area and Lot Width Variances (Sec. 78-330) Zoning Code Section 78-72 provides options for the redevelopment of lots which do not meet the minimum area or width requirements for the respective zoning district. Substandard properties within the Shoreland Overlay District, like the subject lot, are able to be redeveloped without variances if specific standards are met; such as: 1. All setback requirements can be met. 2. A Type 1 sewage treatment system consistent with Minnesota Rules, chapter 7080, can be installed or the lot is connected to a public sewer; and 3. The impervious surface coverage meets all hardcover location and square footage restrictions of this chapter and the total square footage of hardcover does not exceed 25 percent of the entire lot area. 4. All other zoning district standards can be met. The applicant s request for an average setback variance results in the property s inability to conform to #1 above. Therefore, a width variance is also required in order to redevelop the property. Average Lakeshore Setback Variance (Section 78-1279) The applicant is proposing to construct a new home with lakeside terrace on the property. The existing home improvements are as much as 11 feet lakeward of the average lakeshore setback line. The new home is proposed to encroach approximately 30 feet lakeward of the average lakeshore setback line and the new elevated terrace is shown with as much as a 40 foot encroachment lakeward of the line. Governing Regulation: Variance (Section 78-123) In reviewing applications for variance, the Planning Commission shall consider the effect of the
proposed variance upon the health, safety and welfare of the community, existing and anticipated traffic conditions, light and air, danger of fire, risk to the public safety, and the effect on values of property in the surrounding area. The Planning Commission shall consider recommending approval for variances from the literal provisions of the Zoning Code in instances where their strict enforcement would cause practical difficulties because of circumstances unique to the individual property under consideration, and shall recommend approval only when it is demonstrated that such actions will be in keeping with the spirit and intent of the Orono Zoning Code. Economic considerations alone do not constitute practical difficulties. Practical difficulties also include but are not limited to inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth-sheltered construction as defined in Minn. Stat. 216C.06, subd. 2, when in harmony with this chapter. The board or the council may not permit as a variance any use that is not permitted under this chapter for property in the zone where the affected person's land is located. The board or council may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling. According to MN 462.537 Subd. 6(2) variances shall only be permitted when: 1. The variance is in harmony with the general intent and purpose of the Ordinance. The lot width variance requested is consistent with the general intent of the Ordinance. The requested average lakeshore setback variance is in harmony with the Ordinance as the most adjacent neighbor sits at a higher elevation and their lake views will not be impacted by the new home. 2. The variance is consistent with the comprehensive plan. The variances resulting in a permit for construction of a single family residence in a residential zone are consistent with the Comprehensive Plan. 3. The applicant establishes that there are practical difficulties. a. The property owner proposes to use the property in a reasonable manner not permitted by the official controls; The request to permit construction of portions of the proposed home lakeward of the average lakeshore setback appears to be reasonable as the owners of the adjacent properties have stated that they are not adversely impacted; the mature vegetation and topography separate the subject property from the adjacent neighbors. b. There are circumstances unique to the property not created by the landowner; The sub-standard size of the Property was not the result of actions by the landowner. The neighboring home to the north is set back further from the lake than most of the surrounding homes resulting in the severe average lakeshore setback applied to the Property; and c. The variance will not alter the essential character of the locality. The lot width variance will not alter the character of the neighborhood. It does not appear that the requested average lakeshore setback variance to permit portions of the new home and elevated terrace will adversely impact views of the lake currently enjoyed by the adjacent property owners. Additionally City Code 78-123 provides additional parameters within which a variance may be granted as follows: 4. Economic considerations alone do not constitute practical difficulties. Economic considerations have not been a factor in the variance approval determination. 5. Practical difficulties also include but are not limited to inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth-sheltered
construction as defined in Minn. Stat. 216C.06, subd. 2, when in harmony with Orono City Code Chapter 78. This condition is not applicable. 6. The board or the council may not permit as a variance any use that is not permitted under Orono City Code Chapter 78 for property in the zone where the affected person's land is located. This condition is not applicable, as the use for a replacement residence is an allowed use in the LR-1B District. 7. The board or council may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling. This condition is not applicable. 8. The special conditions applying to the structure or land in question are peculiar to such property or immediately adjoining property. The conforming lot area, yet substandard lot width of the property is not uncommon in the surrounding neighborhood. The extreme setback of the northerly home is not in character with the immediate neighborhood. 9. The conditions do not apply generally to other land or structures in the district in which the land is located. The majority of the homes both to the north and south of the Property are closer in proximity to the lake and are more consistently in line with each other. The home on the lot directly to the north is set back further than the other immediately adjacent homes. 10. The granting of the application is necessary for the preservation and enjoyment of a substantial property right of the applicant. The applicant states that the variance is necessary. 11. The granting of the proposed variance will not in any way impair health, safety, comfort or morals, or in any other respect be contrary to the intent of this chapter. Granting the requested variances will not adversely impact health, safety, comfort, or morals; nor will it be contrary to the intent of the Code. 12. The granting of such variance will not merely serve as a convenience to the applicant, but is necessary to alleviate demonstrable difficulty. The size of the Property; the topography and location of the adjacent home to the north create practical difficulties affecting the Property; the variances are necessary and not merely serve as a convenience to the owners. The Commission may recommend or Council may impose conditions in granting of variances. Any conditions imposed must be directly related to and must bear a rough proportionality to the impact created by the variance. No variance shall be granted or changed beyond the use permitted in this chapter in the district where such land is located. Septic System Status The property is served by City sewer. Practical Difficulties Statement Applicant has completed the Practical Difficulties Documentation Form attached as Exhibit B, and should be asked for additional testimony regarding the application. Practical Difficulties Analysis Staff finds that there are demonstrable practical difficulties supporting the lot area and lot width variance as well as the average lakeshore setback variance requests.
Engineer Comments The City Engineer has reviewed the plans and provided comments to the applicant; attached as Exhibit G. Public Comments The neighbor comments received are supportive of the project and are attached as Exhibit I. Issues for Consideration 1. Does the Planning Commission find that that the property owner proposes to use the property in a reasonable manner which is not permitted by an official control? 2. Does the Planning Commission find that the variance(s), if granted, will not alter the essential character of the neighborhood? 3. Does the Commission find it necessary to impose conditions in order to mitigate the impacts created by the granting of the requested variance(s)? 4. Are there any other issues or concerns with this application? Planning Staff Recommendation Planning Staff recommends approval of the variances. List of Exhibits Exhibit A. Exhibit B. Exhibit C. Exhibit D. Exhibit E. Exhibit F. Exhibit G. Exhibit H. Exhibit I. Exhibit J. Exhibit K. Application Practical Difficulties Documentation Form Proposed Survey/Site Plan Proposed Plans and Elevations Submitted Hardcover Calculations Site Photos - Staff City Engineer Memo Aerial Photos - Staff Neighbor Comments Property Owners List Plat Map
Item #10 - PC Agenda - 03/20/2017PC Exhibit A #17-3916
PRACTICAL DIFFICULTIES DOCUMENTATION FORM This form is a required submittal for ALL variance applications. An application will not be considered complete or placed on any meeting agendas until this form is complete and submitted to the City. Minnesota State Statutes Section 462.357, Subdivision 6(2) requires that practical difficulties be demonstrated in order for a variance to be granted. The difficulties must be unique to the property as variances run with the land and not the land owner. Personal and economic situations are not considered valid practical difficulties. In order for an application to be heard by the Planning Commission and City Council practical difficulties having merit must be demonstrated. HOW DO I PROVE A PRACTICAL DIFFICULTY? This form has 12 points outlining the basis City staff uses to determine if practical difficulties exist and how the variance will affect the surrounding community. To prove practical difficulties, address all the relevant points listed below and answer them as clearly as possible. Since you are requesting the code exception, you have the burden of proving that the variance is justified. The information the City receives is what is used in determining a denial or approval recommendation. If you leave something out it will not be considered. Please address each of the twelve practical difficulties criteria as they relate to the request, if they do not apply, write N/A in the space provided: 1. The property owner proposes to use the property in a reasonable manner not permitted by the Zoning Chapter. 2. The plight of the landowner is due to circumstances unique to his property not created by the landowner. 3. The variance, if granted, will not alter the essential character of the locality. 4. Economic considerations alone do not constitute practical difficulties if reasonable use for the property exists under the terms of the Zoning Chapter. 5. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth sheltered construction as defined in Minnesota Statutes, Section 116J.06, Subd. 2, when in harmony with this Chapter. 6. The Board of Appeals and Adjustments or the Council may not permit as a variance any use that is not allowed under this Chapter for property in the zone where the affected person's land is located.
7. The Board or Council may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling. 8. The special conditions applying to the structure or land in question are peculiar to such property or immediately adjoining property. 9. The conditions do not apply generally to other land or structures in the district in which said land is located. 10. The granting of the application is necessary for the preservation and enjoyment of a substantial property right of the applicant. 11. The granting of the proposed variance will not in any way impair health, safety, comfort, morals, or in any other respect be contrary to the intent of the Zoning Code. 12. The granting of such variance will not merely serve as a convenience to the applicant, but is necessary to alleviate demonstrable difficulty. Practical Difficulties Statement Should you feel the practical difficulties cannot fully be described in the above criteria, describe the practical difficulties preventing compliance with Zoning Ordinance requirements in the following lines (attach additional sheets if necessary):
Item #10 - PC Agenda - 03/20/2017 File #17-3916 [Total Pages 32] PC Exhibit C #17-3916
Item #10 - PC Agenda - 03/20/2017 PC Exhibit D #17-3916
Property Address: Prepared by: City of Orono Hardcover Calculation Worksheet Date: Stormwater Quality Overlay District Tier: (Circle one) Tier 1 Tier 2 Tier 3 Tier 4 Tier 5 Step 1: EXISTING HARDCOVER In the following table identify all items of existing hardcover on the property, keyed by letter to Certificate of Survey (survey must accompany this form). Use as many lines as necessary to accurately depict existing hardcover status of the property. For Tier 1 properties, identify any features by letter within the 75 setback line and calculate hardcover square footage separately for each portion. Key to Survey Hardcover Item (Describe) Length x Width Item #10 - PC Agenda - 03/20/2017 Total (Square Feet) (Example) (Garage) (24 x 30 ) (720 ) A B C D E F G H I J K L M N O P Q R S T U V W X Y Z (1) Total Existing Hardcover Excludable Hardcover (See City Code Sec 78-1684): (2) Total Excludable Hardcover (3) Net Existing Hardcover [Subtract line (2) from line (1)] (4) Total Lot Area Existing Hardcover Percentage [ (3) (4) ] % (Proposed Hardcover next page)
Property Address: Prepared by: City of Orono Hardcover Calculation Worksheet Date: Stormwater Quality Overlay District Tier: (Circle one) Tier 1 Tier 2 Tier 3 Tier 4 Tier 5 Step 2: PROPOSED HARDCOVER In the following table, identify all items of proposed hardcover on the property, keyed by letter to Certificate of Survey (survey must accompany this form). Include all existing hardcover items that are intended to remain, as well as all proposed hardcover items that will be added. Use as many lines as necessary to accurately depict proposed hardcover status of the property. For Tier 1 properties, identify any features by letter which are within the 75 setback line and calculate hardcover square footage separately for each portion. Key to Survey Hardcover Item (Describe) Length x Width Item #10 - PC Agenda - 03/20/2017 Total (Square Feet) (Example) (Garage) (24 x 30 ) (720 ) A B C D E F (serving the 1000 Tonkawa property) G H (within 75-feet of OHWL) I J K L M N O P Q R S T U V W X Y Z (1) Total Proposed Hardcover Excludable Hardcover (See City Code Sec 78-1684): (2) Total Excludable Hardcover (3) Net Proposed Hardcover [Subtract line (2) from line (1)] (4) Total Lot Area Proposed Hardcover Percentage [ (3) (4) ] %
Item #10 -PC PC Agenda - 03/20/2017 File #17-3916F [Total Pages 32] Exhibit View from edge of Hoffman patio over Burke property #17-3916
From lake side of Burke home looking northwest to Hoffman home Item #10 - PC Agenda - 03/20/2017
From: To: Cc: Subject: Date: Melanie Curtis "Peter Eskuche" "Scott Wullschleger"; "Burke, Forrest G"; "Randy Sterns" Engineer Review: #17-3916 for 1020 Tonkawa Rd Monday, March 13, 2017 10:48:00 AM Peter Our engineer reviewed the proposed plans and made the following comments. These comments should be addressed with the plans submitted for building permit. 1. Special care will need to be taken to ensure the plan does not direct water to the neighboring properties especially the one to the south. Will likely need a swale, drain tile or some other means of controlling the hardcover and surface water runoff. 2. The retaining walls that are over 4 feet will require an engineered design signed by a professional engineer. Let me know if you have any questions. Thanks. Melanie Curtis, Planner Direct 952.249.4627 Planning & Zoning Office 952.249.4620 2750 Kelley Parkway, Orono, MN 55356 Email: mcurtis@ci.orono.mn.us Website: www.ci.orono.mn.us
Approximate Average Lakeshore Setback Line Item #10 - PC Agenda - 03/20/2017
Subject Property Hoffman home location
From: Bremer, Cynthia A. To: Melanie Curtis Cc: Dennis Bremer Subject: Hi Date: Wednesday, December 07, 2016 6:12:32 PM I am reaching out on behalf of our neighbors at 1020 Tonkawa. We certainly support the buyers' effort to move the house forward from where it is currently. It would not impact our sight lines at all and would still be very very far away from the lake. And I actually think moving it forward from where it is now would be helpful to us given the topography of the lot. There is potential run off from their property how it lays out currently, which I think would be greatly improved if they were allowed to move forward a bit. The house two down from them is very forward of where they would be looking to build. And the house immediately next to them, while further back, I think is an exception to how the lakeshore lays out and will no doubt be considered a teardown when it changes hands at some point. Is it still the case that the buyers would be allowed to build on the current location, regardless? That was certainly my understanding of the law when I was involved. But I realize things change fast in your world. Dennis or I would be happy to chat with you or whoever at the city is handling this. We want to help and support both the Williamses and the new buyers. Thank you. Happy holidays! Cynthia A. Bremer Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Wells Fargo Center, 90 South Seventh Street, Suite 3800 Minneapolis, MN 55402 Telephone: 612-336-6868 Fax: 612-339-0061 cynthia.bremer@ogletreedeakins.com www.ogletreedeakins.com Bio This transmission is intended only for the proper recipient(s). It is confidential and may contain attorney-client privileged information. If you are not the proper recipient, please notify the sender immediately and delete this message. Any unauthorized review, copying, or use of this message is prohibited.