HomeMy WebLinkAbout7D - Variance Appeal McCoy
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
CITY COUNCIL AGENDA REPORT
MEETING DATE:
AGENDA #:
PREPARED BY:
REVIEWED BY:
DECEMBER 1, 2003
70
CYNTHIA KIRCHOFF, AICP, PLANNER
JANE KANSIER, PLANNING COORDINATOR
CONSIDER APPROVAL OF AN APPEAL OF THE PLANNING
COMMISSION'S DECISION TO DENY VARIANCES FOR THE
CONSTRUCTION OF A DECK ADDITION (Case File #03-131)
AGENDA ITEM:
INTRODUCTION:
Historv: On October 27, 2003, the Planning Commission denied Tim
and Jane McCoy's requests for rear and side yard setback Variances
for the construction of a 14 foot by 20 foot deck addition on property
located at 2830 Fox Run NW (Lot 1, Block 2, The Wilds).
The Commission supported the overall upgrade of the dwelling, but
found no hardship. The design of the home was cites as the issue,
not the minimum setback. Furthermore, the Commission did not find
the applicant's argument about replacing a large deck with a smaller
deck compelling, because the original deck was illegal. The
Commission did not support staff's recommendation that impervious
surface in excess of 30 percent be removed as a condition of granting
the Variances.
Backaround: Section 1108.408 of the Zoning Ordinance permits any
owner of affected property within 350 feet of the subject property to
appeal the decision of the Board of Adjustment (Planning
Commission) to the City Council. On October 28,2003, James Bates,
attorney for the McCoys, appealed the Planning Commission's
decision.
DISCUSSION:
Current Circumstances: The property is zoned PUD (Planned Unit
Development) and SD (Shoreland Overlay District), and is guided R-
UMD (Urban Low/Medium Density Residential) in the 2020
Comprehensive Plan. The property was platted as Lot 1, Block 2, The
Wilds in 1993.
L:\03 Files\03 Appeals\03-131 McCoy\cc~fy:tiorlake.com
Phone 952.447.4230 / Fax 952.447.4245
Lot 1, Block 2 directly abuts the fairway for the fifth hole of The Wilds
Golf Course. The Wilds was approved as a PUD, so a modification of
the required rear yard setback was approved for those lots abutting
the golf course in the form of a resolution. Instead of the 25 foot rear
yard setback required in the R-1 use district, a 15 foot setback is
permitted.
In 1995, a building permit was issued for the construction of the
existing single family dwelling. On the building permit it was noted by
City staff that a deck would have "potential setback problems." It was
also noted on the building permit that proposed impervious surface
should be removed to comply with the maximum 30 percent coverage.
View from the fairway
On the survey submitted with the building permit, the dwelling was
shown 15.2 feet from the rear property line, at its closest point. After
the dwelling was complete, a deck was constructed on the rear,
abutting the fairway, unbeknownst to the City and without a building
permit. The appellant removed that deck and commenced the
construction of a new deck on the rear of the dwelling as shown in the
picture above. Construction was started without the issuance of a
building permit. The City received a complaint about the deck being
constructed without a permit, so City staff inspected the site and
issued a "Stop Work Order." This application for setback Variances
followed.
Issues: The appellant would like to construct a 14 foot by 20 foot
(280 square feet) deck addition on the rear of the existing dwelling.
The deck is proposed to maintain the following setbacks:
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Yard Required Proposed
Rear 15' 2.9'
Side - East 10' 6.7'
The deck complies with the west side yard and front yard setbacks.
Not only is the existing deck nonconforming, but also the amount of
existing impervious surface exceeds 30 percent. Staff has calculated
it to be approximately 37 percent. Decks open to the sky having open
joints of at least ~ inch are exempted from the calculation of
impervious surface, so the proposed deck would not increase hard
surface. Removal of proposed impervious surface was a condition of
granting the original building permit. Staff would like to see
impervious surface in excess of 30 percent be removed from the site,
since it was condition of the original building permit.
The appellant is also proposing to encroach 7.1 feet into the 10 foot
drainage and utility easement that extends the length of the rear
property line. In conjunction with the variance application, the
appellant is requesting to enter into a Private Use of Public Property
Agreement with the City to allow for the encroachment into the
easement. If this appeal were overturned, the City Council would then
have to take action on this agreement. However, at this time, the City
Council is not required to do so.
In a Planned Unit Development (PUD) standard Zoning Ordinance
setbacks may be modified. In this case, the City Council approved an
amendment to the PUD "to reduce the rear yard setback of Yz acre
and 1/3 acre homesites from 25 feet to 15 feet and villa homesites
from 20 feet to 5 feet, for lots located adjacent to the golf course
fairways." Hence, this property has already been granted a rear yard
setback Variance to be 10 feet closer to the rear property line than the
standard setback. The existing dwelling has already taken advantage
of that relief.
Variance Hardship Findinas: Section 1108.400 of the Zoning
Ordinance states that the Board of Adjustment may grant a
Variance from the strict application of the provisions of the
zoning ordinance, provided that:
1. Where by reason of narrowness, shallowness, or shape of a lot,
or where by reason of exceptional topographical or water
conditions or other extraordinary and exceptional conditions of
such lot, the strict application of the terms of this Ordinance
would result in peculiar and practical difficulties or exceptional
or undue hardship upon the owner of such lot in developing or
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using such lot in a manner customary and legally permissible
within the Use District in which said lot is located.
The shape of the lot did not preclude the original property owner from
developing the property for a single family dwelling, a legally
permissible use within The Wilds PUD. The lot has ample buildable
area, so the strict application of the setback requirements in
conjunction with the lot shape did and does not create practical
difficulties. Moreover, in 1994, the property was granted a rear yard
setback modification to permit a 15 foot rear yard setback, rather than
the 25 foot rear yard setback. The existing dwelling complies with the
required 15 foot rear yard and 10 foot side yard setbacks.
The appellant contends that the property is an oddly shaped lot. The
property is not a traditional rectangle, but it still accommodated a large
dwelling on the property. It is not an undue hardship to not have a 14
foot by 20 foot deck. The appellant could construct a small balcony
off the existing door to allow access to the rear and side yard.
2. Conditions applying to the structure or land in question are
peculiar to the property or immediately adjoining property, and
do not apply, generally, to other land or structures in the Use
District in which the land is located.
The conditions upon which the Variance requests are based are not
peculiar to this site. All properties in residential use districts have to
comply with minimum rear yard setbacks. The subject site is unique
only in that it was allowed to have a 15 foot rear yard setback
because it abuts the fairway of The Wilds. Furthermore, the only
reason the Variances are requested is because the dwelling is much
too large for the lot. This does not make a peculiar situation. It was
noted on the building permit that there are "potential setback
problems" for a future deck. The City acknowledged this fact so the
contractor and/or property owner would be aware of the situation.
More important, the door was located on the side of the dwelling for a
reason. It is likely the builder/original original owner was aware that a
deck could not be built because the dwelling was placed at the
minimum required setback.
The appellant argues that the subject site is unique because "the
home and surrounding area consist entirely of upper bracket real
estate, a condition that does not broadly apply to other developments
in the Use District." The City Attorney does not believe the cost of
surrounding homes relates at all to the uniqueness issue. The
Comprehensive Plan states "City ordinances shall be enforced by the
City staff in an equitable and uniform manner," It appears as though
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the appellant contends that the property should be treated differently
because it is considered "upper bracket real estate." Discriminatory
treatment is contrary to public policy.
3. The granting of the proposed Variance is necessary for the
preservation and enjoyment of a substantial property right of the
owner.
The granting of rear and side yard setback Variances is not necessary
for the preservation and enjoyment of a substantial property right of
the owner. In 1995, the City issued a building permit for a single
family dwelling, so the owner currently enjoys a substantial property
right. The construction of a deck was noted as a problem. A deck is
not typically an element of a reasonable use of the property. The City
has denied setback Variances for deck additions in the past. A
"reasonable use" is not based upon the individual property owner's
desires. It is based upon the criteria that "but for" a Variance the
property owner would not be permitted to use the property in any
manner. Reasonable use does not mean a use that the property
owner believes is reasonable. Moreover, City policy makers
determine what the reasonable use by implementing the
Comprehensive Plan and Zoning Ordinance.
The appellant states that the Variances are for an "ordinary deck" of
"minimum reasonable size." There is a question as to what is an
ordinary deck on a dwelling with a 3,641 square foot building footprint.
A deck that is attached to the dwelling is typically considered an
extension of the living space. In this case, the "ordinary deck of
minimum reasonable size" was converted to roofed/enclosed living
space. To reiterate, the previous owner utilized what could be
dedicated to a deck as living space. There is no additional buildable
area remaining to build a deck. A review of dwelling footprints in the
immediate vicinity indicates the subject property has the one of the
largest homes on Fox Run and Fox Trail, with a footprint of 3,641
square feet. Of the 13 existing dwellings, only four are more than
3,000 square feet, including the attached garage. The remaining nine
are less than 3,000 square feet. According to Scott County records,
the largest footprint is 3,672 square feet and the smallest is 2,124
square feet.
4. The granting of the proposed Variance will not impair an
adequate supply of light and air to the adjacent property,
unreasonably increase the congestion in the public streets,
increase the danger of fire, or endanger the public safety.
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It does not appear as though the rear and side yard setback
Variances will impair an adequate supply of light and air to adjacent
property or negatively impact public safety.
5. The granting of the Variance will not unreasonably impact on
the character and development of the neighborhood,
unreasonably diminish or impair established property values in
the surrounding area, or in any other way impair the health,
safety, and comfort of the area.
The granting of the rear and side yard setback Variances will
unreasonably impact the character and development of the
neighborhood by creating a new neighborhood rear yard setback
along the golf course.
The appellant argues that the inability to rebuild a reasonable size
deck will "diminish and impair established property values. The sight
of a 'walkout to nowhere' is an eyesore, and a small balcony within
the setbacks would be proportionately grotesque." The existing door
is not directly visible from the golf course. The lack of a 14 foot by 20
foot deck will not unreasonably diminish property values in the Fox
Run/Fox Trail neighborhood. The dwelling is substantially larger than
the majority of the homes in the vicinity, so Variances for the deck will
provide the property owner with more rights than adjacent property
owners.
6. The granting of the proposed Variance will not be contrary to
the intent of this Ordinance and the Comprehensive Plan.
The purpose of the Zoning Ordinance is to "prevent overcrowding of
land and undue concentration of structures and population by
regulating the use of land and buildings and the bulk of buildings in
relation to the land surrounding them," This purpose is implemented
through required minimum yard setbacks. Variances to reduce the
required minimum rear and side yard setbacks without a
demonstrable hardship or difficulty are inconsistent with the purpose
of the Zoning Ordinance.
The appellant argues "the granting of the variance request will
preserve the spirit and intent of the Prior Lake Zoning Ordinances by
preserving a reasonable and customary use enjoyed by all properties
in the neighborhood." The property owner already has the reasonable
and customary use enjoyed by adjacent properties.
7. The granting of the Variance will not merely serve as a
convenience to the appellant but is necessary to alleviate a
demonstrable undue hardship or difficulty.
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The Variances will serve as a convenience to the property owner,
because a small balcony can be constructed without Variances.
Requested relief is not necessary to alleviate a demonstrable undue
hardship, but is based upon the appellant's desire to overbuild the
property.
The appellant contends that the Variances are a necessity to "rebuild
a deck to reasonable proportion and in accordance with the home's
value and uses planned for it when it was built." The survey
submitted with the building permit for the dwelling did not consider a
future deck addition, so it is assumed that one was not designed for
the home. Furthermore, if a future deck was contemplated, the
builder should have reduced the size of the dwelling footprint to
comply with minimum setbacks.
8. The hardship results from the application of the provisions of
this Ordinance to the affected property and does not result from
actions of the owners of the property.
Although the appellant did not construct the dwelling, they designed a
deck that encroaches into the required rear and side yard setbacks. A
balcony can be constructed on the east elevation to provide access to
the rear and side yard.
The appellant states that a deck is "a necessary part of a home of this
character." If a deck were truly necessary to maintain the character of
this dwelling, it would have been designed with the home. Instead it is
an afterthought that does not comply with ordinance requirements.
9. Increased development or construction costs or economic
hardship alone shall not be grounds for granting a Variance.
Staff does not believe that increased development or construction
costs or economic hardship are the basis for these requests.
CONCLUSION:
The appellant would like to construct a 14 foot by 20 foot (280 square
feet) deck addition on property zoned PUD and SD. In order to do
such, rear and side yard setback Variances are required. In
conjunction with the Variance application, the appellant is also
seeking approval of a Private Use of Public Property Agreement to
allow the use of a portion of the existing 10 foot drainage and utility
easement that extends along the rear property line. However, the City
Council is not taking action on that request at this time.
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ALTERNATIVES:
RECOMMENDATION:
The strict application of required setbacks does not pose a practical
difficulty on the development of the property because:
1. The property owner currently has a reasonable use of the
property. The existing single family dwelling complies with all
required setbacks (but the impervious surface exceeds 30 percent
of the lot area); and
2. A small deck or balcony can be constructed that meets all
required setbacks.
3. The existing dwelling footprint occupies area that could have been
used for a deck.
The subject property has a substantially larger home than adjacent
properties, and approving the requested setback Variances would
provide an advantage to one individual property owner. Based upon
the findings set forth in this report, staff recommends denial. The
Planning Commission concurred with staff's recommendation.
The City Council has three alternatives:
1. Uphold the decision of the Planning Commission and deny the
appeal.
2. Overrule the decision the Planning Commission and grant the
appeal. In this case, the Council should direct staff to prepare a
resolution with findings of fact approving the Variance.
3. Defer this item and provide staff with specific direction.
Staff recommends Alternative #1. This requires a motion and second
to adopt a motion and second to adopt a resolution upholding the
decision of the Planning Commission to deny the requested Variance.
However, should the City Council overrule the decision of the
Planning Commission, the following conditions shall apply:
1. The resolution must be recorded at Scott County within 60 days of
adoption. Proof of recording, along with the acknowledged City
Assent Form, shall be submitted to the Planning Department prior
to the issuance of a building permit.
2. The building permit is subject to all other applicable city, county,
and state agency regulations.
3. The applicant shall enter into a Private Use of Public Property
Agreement with the City to allow for the encroachment into the 10
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8
foot drainage and utility easement. No building permit will be
issued until Council has approved this agreement.
4. Impervious surface shall be reduced to 30 percent.
ATTACHMENTS:
1. Resolution 03-XX
2. Appeal letter
3. Location map
4. Survey
5. Appellant's arrative and supporting information
6. Octo r 2 2003, Planning Commission meeting minutes
REVIEWED BY:
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9
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
RESOLUTION 03-XX
A RESOLUTION UPHOLDING THE PLANNING COMMISSION'S DECISION
TO DENY A 12.1 FOOT VARIANCE FROM THE REQUIRED 15 FOOT REAR
YARD SETBACK AND 3.3 FOOT VARIANCE FROM THE REQUIRED 10
FOOT SIDE YARD SETBACK FOR THE CONSTRUCTION OF A DECK
ADDITION
BE IT RESOLVED BY the City Council of the City of Prior Lake, Minnesota;
FINDINGS
1. James Bates, on behalf of Tim and Jane McCoy, has appealed the
Planning Commission's decision to deny rear and side yard setback
Variances for the construction of 14 foot by 20 foot deck addition on
property zoned PUD (Planned Unit Development) and SD (Shoreland
Overlay District) at the following location, to wit;
2870 Fox Run NW,
Lot 1, Block 2, The Wilds, Scott County, Minnesota.
2. The City Council has reviewed the application for the Variances as contained
in Case #03-131 PC, held a public hearing, and upheld the Board of
Adjustment's decision hereon on December 1, 2003.
3. The City Council has considered the effect of the proposed variance upon the
health, safety, and welfare of the community, the existing and anticipated
traffic conditions, light and air, danger of fire, risk to the public safety, the
effect on property values in the surrounding area and the effect of the
proposed variance on the Comprehensive Plan.
4. The shape of the lot did not preclude the original property owner from
constructing/developing the property for a single family dwelling, a legally
permissible use within The Wilds PUD. The lot has ample buildable area, so
the strict application of the setback requirements in conjunction with the lot
shape did and does not create practical difficulties. Moreover, in 1994, the
property was granted a rear yard setback modification to permit a 15 foot rear
yard setback, rather than the 25 foot rear yard setback. The existing dwelling
complies with the required 15 foot rear yard and 10 foot side yard setbacks.
1:\03 files\03 appeals\03-131 mccoy\uphold resolution.doc
www.cityofpriorlake.com
1
Phone 952.447.4230 / Fax 952.447.4245
5. The conditions upon which the Variance requests are based are not peculiar
to this site. All properties in residential use districts have to comply with
minimum rear yard setbacks. The subject site is unique only in that it was
allowed to have a 15 foot rear yard setback because it abuts the fairway of
The Wilds. Furthermore, the only reason the Variances are requested is
because the dwelling is much too large for the lot. This does not make a
peculiar situation. It was noted on the building permit that there are "potential
setback problems" for a future deck. The City acknowledged this fact so the
contractor and/or property owner would be aware of the situation.
6. The granting of rear and side yard setback Variances is not necessary for the
preservation and enjoyment of a substantial property right of the owner. In
1995, the City issued a building permit for a single family dwelling, so the
owner currently enjoys a substantial property right. The construction of a
deck was noted as a problem. A deck is not typically an element of a
reasonable use of the property. The City has denied setback Variances for
deck additions in the past. A "reasonable use" is not based upon an
individual property owner's desires. It is based upon the criteria that "but for"
a Variance the property owner would not be permitted to use the property in
any manner. Reasonable use does not mean a use that the property owner
believes is reasonable. Moreover, City policy makers determine the
reasonable use by implementing the Comprehensive Plan and Zoning
Ordinance.
7. The granting of the rear and side yard setback Variances will unreasonably
impact the character and development of the neighborhood by creating a new
neighborhood rear yard setback along the golf course.
8. The purpose of the Zoning Ordinance is to "prevent overcrowding of land and
undue concentration of structures and population by regulating the use of
land and buildings and the bulk of buildings in relation to the land surrounding
them." This purpose is implemented through required minimum yard
setbacks. Variances to reduce the required minimum rear and side yard
setbacks without a demonstrable hardship or difficulty are inconsistent with
the purpose of the Zoning Ordinance.
9. The Variances will serve as a convenience to the property owner, because a
small balcony can be constructed without Variances. Requested relief is not
necessary to alleviate a demonstrable undue difficulty, but is based upon the
applicant's desire to overbuild the property.
10. The contents of Planning Case #03-131PC are hereby entered into and
made a part of the public record and the record of decision for this case.
1:\03 files\03 appeals\03-131 mccoy\uphold resolution.doc 2
CONCLUSION
Based upon the Findings set forth above, the City Council hereby upholds the
decision of the Planning Commission denying the following Variances, as shown
on Exhibit A- Certificate of Survey:
1. A 12.1 foot variance from the 15 foot rear yard setback required in The
Wilds PUD.
2. A 3.3 foot variance from the 10 foot side yard setback required in The
Wilds PUD.
Passed and adopted this 1 sl day of December, 2003.
YES NO
Haugen Haugen
Blomberg Blomberg
LeMair LeMair
Petersen Petersen
Zieska Zieska
{Seal} Frank Boyles, City Manager
1:\03 files\03 appeals\03-131 mccoy\uphold resolution.doc
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CERllFICATE OF SURVEY PREPARED FOR:
TIM ~CCOY
2830 FOX RUN NW
PRIOR LAKE, MN 55372
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LEGAL DESCRIPllON AS PROVIDED:!'
Lot 1. Block 2. 1l-IE 'MLDS. Scott County, Minnesota. Also
showing all visible improvements and/or encroachments onto
or off, from sold property if any, as of this 2nd day of July,
2003.
Rev. 10/6/03 To show proposed deck info,
I hereby certify that this Certificate of Surwy was prepared
by me or under my direct .upervl.lon and that I am a duly
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Minnesota.
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!llnne.ota Ucen.e No. 10183
Dated thl....1!:I.!:i.ot Ja !'J . 2003
FILE NO. 9707 BOOK 238 PAGE 76
EXHIBIT A
HUEMOELLER, BATES & GONTAREK PLC
ATTORNEYS AT LAW
16670 FRANKLIN TRAIL
P.o. BOX 67
PRIOR LAKE, MINNESOTA 55372
(952) 447-2131
Fax: (952) 447-5628
Writer's email address:idb(@.priorlakelaw.com
OCT 2 8 2003
-1 ',_,,_._
JAMES D. BATES
ALLISON J. GONTAREK
BRYCE D. HUEMOELLER
October 28, 2003
tvtr. Donald R. Rye:
Prior Lake Planning Director
16200 Eagle Creek Avenue
Prior Lake MN 55372
Re: Tim and Jane McCoy - Application for Variance
Case File 03-122
Dear Mr. Rye:
This letter is notice of appeal to the Prior Lake City Council from the October 27,
2003, action by the Planning Commission denying the McCoys' variance application for
construction of a deck on their property.
Please forward me copies of the Planning Commission's minutes and any further
staff reports prepared for the City Council meeting as they become available. Thank you
for your assistance.
c~::.
ames D. Bates
JDB:bj
cc: Tim and Jane McCoy
Location Map for
McCoy Variances
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CERTIFICATE OF SURVEY PREPARED FOR:
nM ~cCOY
2830 FOX RUN NW
PRIOR LAKE, MN 55372
VAllEY SURVEYING CO.. P.A.
16670 FRANKLIN TRAIL SE
SUITE 230
PRIOR LAKE, MN 55372
(952) 447-2570
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LEGAL DESCRIPTION AS PROVIDED:."
Lot 1, Block 2, n-tE 'MLDS, Scott County, Minnesota. Also
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Rev. 10/6/03 To show proposed deck info.
_..-/ ;
I hereby oertlfy that thl. Certificate of Survey wal prepared
by me or under my direct supervlllon and that I am a duly
Ucenlecl Land Surve)'Or' under the lawI of the State of
!llnnelata.
.~~,/J& L~ ~
!llnnelota Ucenle No. 10183
Dated thll~Of Jet 1'J . 2003
FILE NO. 9707 BOOK 238 PAGE 76
. DENOlES IRON MONUllENT FOUND
o DENOlES IRON MONU!lENT SET AND MARKED
BY MINN.ESOTA UCENSE NO.101B3
SURVEY
APPLICATION OF
TIM AND JANE McCOY
FOR SIDE AND REAR SETBACK VARIANCES AND
APPROVAL OF AGREEMENT FOR PRIVATE USE OF PUBLIC PROPERTY
Background
In May of this year, Tim and Jane McCoy bought a detached single family home at
2830 Fox Run, which abuts the fifth fairway of The Wilds golf course in the Wilds
community of Prior Lake. The home had been vacant for several months and McCoys
purchased it following foreclosure by the mortgage company. McCoys have made
substantial improvements to the house, to bring it up to the quality standards within the
neighborhood, and have made it their home. The subject of their variance application is a
need to replace a large, deteriorated deck with a new, much smaller one.
McCoys had inspected the property before the purchase and understood the house
would need substantial additional investment because of its condition. Although construction
had been finished in 1995 and the original certificate of occupancy issued in October of
1998, the previous owners had seriously neglected the property and this, coupled with the
period of vacancy, left the house in a sorry state.
As soon as they closed on the property the McCoys began cleaning up and improving
the home. To date they have spent more than $300,000.00 in the process. In the course of
their work they found the existing deck, which extended the entire back side of the home
(please see attached photo sheet), was rotting and needed to be replaced. They removed the
bad footings and most of the existing deck, and put in the footings and support posts for a
much smaller replacement, in the reasonable belief that the original home and deck had been
inspected and approved as being in compliance with the Wilds P.U.D. and applicable
ordinances. At this point, though, it was brought to McCoys' attention that no original permit
had been issued to construct the original deck and that there were potential setback problems,
even with the smaller replacement. McCoys was surprised and dismayed at this development
but stopped work on the deck and immediately arranged to have the property surveyed. In
discussing the survey results and their plans with the Prior Lake City Engineering and
Planning Departments, McCoys have found that in order to build a deck of any reasonable
size they will need variances from the IS-foot rear yard setback applicable to lots in The
Wilds that abut on golf course fairways, and from the 10- foot side yard setback.
The house was built to have a deck, with a walkout door on the second level. The
original building permit file references decks "by future permit" and notes possible setback
problems, since the house alone was close to the rear yard setback line. McCoys have
APPLICANTIS NARRATIVE
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reduced the planned deck size to 14 by 20 feet, which they believe is the minimum
reasonable under the circumstances. To deny the McCoys the ability to replace a deck on a
home of this scale would seriously compromise not only the McCoys but also the
neighborhood in general.
Legal Variance Standard
By statute, Minnesota cities have authority to grant variances in cases of "undue
hardship," which exists in cases where
the property in question cannot be put to a reasonable use if used under conditions
allowed by the official controls, the plight of the landowner is due to circumstances
unique to the property not created by the landowner, and the variance, if granted, will
not alter the essential character of the locality. Economic considerations alone shall
not constitute an undue hardship if reasonable use for the property exists under the
terms of the ordinance. Minnesota Statutes Section 462.357 Subd. 6(2).
The Minnesota Court of Appeals has on several occasions been called on to interpret
the phrase "cannot be put to a reasonable use." It has repeatedly said, most recently in April
of 2003, that this means only that the landowner would like to put the land to a reasonable
use but that the proposed use is prohibited under the strict provisions of the zoning code. The
court has said this language does not mean a variance can only be granted where there is no
reasonable use of the property at all without the variance, because in that case the Minnesota
Constitution would compel a variance regardless of what the statute said. The variance
applied for in this case clearly falls within the Court's definition of "undue hardship."
Criteria in the Prior Lake Ordinance
Based on the nine criteria in the Prior Lake ordinances used to evaluate variance
requests, the McCoys should not be prevented from replacing the deck on their home. It is
only reasonable to grant them the ability to replace, at the smallest reasonable size, the deck
a home of this character requires.
1. Strict application of the ordinance would result in peculiar and practical
difficulties or exceptional or undue hardship in developing or using the lot in a
customary and legally permissible manner, because of the narrowness, shallowness, or
shape of the lot.
McCoys' lot is an oddly shaped platted lot of record in a neighborhood of upper
bracket homes. The homes are large and placed strategically to incorporate views of the golf
course and the surrounding natural areas. When McCoys purchased the house, there was a
large deck attached to the rear, overlooking the fifth fairway. Mr. McCoy, being a diligent
-
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homeowner, dismantled the deck with the intent of replacing it with a smaller, more securely
built structure. The home was designed and built to include a deck, a necessary and nearly
universal feature of single family homes in the immediate neighborhood, and the City's
permit file anticipated construction of a deck. By strict application of the terms of the
Ordinance the McCoys are now faced with the peculiar and practical difficulty of being
unable to have any reasonable deck at all.
McCoys propose that if the requested variance is granted, the attached Agreement for
Private Improvement of Public Property between McCoys and the City be executed. As part
of this variance request, we respectfully ask that this Agreement be approved.
2. Conditions applying to the structure or land in question are peculiar to the
property or immediately adjoining property, and do not apply, generally, to other
land or structures in the Use District in which the land is located.
Although a deck plan was not included in the survey prepared for the original building
permit, notes in the City's permit file contemplated construction of a deck extending from
the upper level, and anticipated the potential setback problems given the size of the house
relative to the lot size. The home and surrounding area consist entirely of upper bracket real
estate, a condition that does not broadly apply to other developments in the Use District. The
McCoys' lack of a reasonable deck on a home of this scale significantly impacts the
neighborhood. The McCoys have mitigated the peculiar challenges of the placement of the
home on the lot by reducing the size of the proposed deck to the minimum width (14 feet)
that will reasonably accommodate a standard patio table and chairs. It is also worth noting
that on its lower level the house has only lookout windows, so a patio below the planned
location of the deck would have difficult access and would block views from inside the
house.
3. The granting of the proposed variance is necessary for the preservation and
enjoyment of a substantial property right of the owner.
Without the requested variances, the McCoys have an exit that drops a full story and
creates a safety issue. Resolving this problem within City setback requirements would allow
no more than a small balcony at the side of the house, instead of an ordinary deck from which
McCoys could enjoy the expansive views of the golf course and surrounding area behind the
house. They have children and grandchildren who visit often, and reasonably expect to be
able to entertain guests in their home. Denial of their ability to rebuild a deck of minimum
reasonable size is a denial of a substantial property right.
4. The granting of the proposed variance will not impair an adequate supply
of light and air to the adjacent property, unreasonably increase the congestion in the
public streets, increase the danger of fIre, or endanger public safety.
"
-3-
Allowing McCoys to rebuild the deck adjacent to the golf course fairway will in no
way affect the supply of light and air to any adjacent property, or the views from other
neighboring properties. No additional congestion will result from allowing McCoys to
rebuild the deck, nor will additional danger of fire or compromise of the public safety result.
5. Granting the variances will not unreasonably affect the character and
development of the neighborhood, unreasonably diminish or impair established
property values in the surrounding area, or in any other way impair the health safety,
and comfort of the area.
McCoys' inability to rebuild a reasonable deck will diminish and impair established
property values. The sight of a ''walkout to nowhere" is an eyesore, and a small balcony
within the setbacks would be proportionately grotesque. Allowing McCoys to rebuild the
deck as proposed would be more likely to increase, rather than decrease, property values in
the area, and will preserve the high standards already in place.
6. Granting the proposed variances will not be contrary to the intent of this
Ordinance and the Comprehensive Plan.
Because the proposed deck abuts an open area, a golf course fairway that is expected
to remain open, the granting of the variance request will preserve the spirit and intent of the
Prior Lake Zoning Ordinances by preserving a reasonable and customary use enjoyed by all
properties in the neighborhood.
7. Granting the variances will not merely serve as a convenience to the
applicants but is necessary to alleviate a demonstrable undue hardship or difficulty.
The variances requested are not a convenience but a necessity. McCoys have
minimized the deck size and are replacing an unsafe and much larger structure. The granting
of variances is necessary in order for McCoys to rebuild the deck to reasonable proportion
and in accordance with the home's value and the uses planned for it when it was built.
8. The hardship results from the application of the provisions of this
Ordinance to the affected property and does not result from actions of the owners of
the property.
McCoys had no part in the original construction of the home and purchased the
property in good faith with the reasonable belief that the existing deck had been approved
and could be replaced. They believed they could restore the home to a neighborhood asset
rather than a liability, with a smaller deck that is a necessary part of a home of this character.
9. Increased development or construction costs or economic hardship alone
..
-4-
shall not be grounds for granting a variance.
The variance request is not an economic issue but rather one of full reasonable use and
enjoyment of property. While the McCoys believe the value of the home would be reduced
without a reasonable deck, this variance request comes about because of their wish to use
their newly acquired home for their enjoyment and that of their family and guests.
Based on the Prior Lake ordinances and Minnesota legal principles that guide the
variance application process, we believe the Planning Commission should find as follows:
1. Strict application of the Prior Lake Zoning Ordinances will result in peculiar and
practical difficulties with respect to Tim and Jane McCoy's property by denying them the
ability to rebuild a deck. This will preclude the preservation and enjoyment of their property
rights.
2. The peculiar and practical difficulties result from the circumstances unique to the
property because of the shape and size of the lot and the approved placement of the house
on the lot during original construction.
3. The peculiar and practical difficulties are caused by the provisions of the Prior ,_
Lake Zoning Ordinances and are not the result of the actions of the owner. The owners'
proposed use of the land is reasonable and the strict application of the ordinances would
preclude such reasonable use.
4. The requested variances preserve the spirit and intent of the Prior Lake Zoning
Ordinances, produces substantial justice and is not contrary to the public interest, because the
reasonable use is consistent in all respects with the existing and proposed land use in the
neighborhood, and provides an enhancement to the neighborhood as a whole.
On behalf of Mr. and Mrs. McCoy, we respectfully request that the Planning
Commission approve: (1) the requested variance from the rear year setback, (2) the
requested variance from the side yard setback, and (3) the Agreement for Private
Improvement of Public Property. We appreciate your consideration.
James D. Bates, for
Huemoeller, Bates & Gontarek PLC
Attorneys for Tim and Jane McCoy
16670 Franklin Trail SE
Prior Lake, MN 55372
(952) 447-2131
(952) 447-5628 fax
.
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McCoy Home - Front View
Rear View Showing Original Deck
HUEMOELLER, BATES & GONTAREK PLC
ATTORNEYS AT LAW
16670 FRANKLIN TRAIL
P.O. BOX 67
PRIOR LAKE, MINNESOTA 55372
(952)447-2131
Fax: (952) 447-5628
Writer's email address:idb(a).priorlakelaw.com
JAMES D. BATES
ALLISON J. GONTAREK
BRYCE D. HUEMOELLER
November 28,2003
Mayor Jack G. Haugen
4824 Adrian Circle SE
Prior Lake, MN 55372
Council Member Jim Petersen
3338 Todd Road SW
Prior Lake, MN 55372
Council Member Andrea Blomberg
16327 Victoria Curve SE
Prior Lake, MN 55372
Council Member Joseph G. Zieska
5316 Hampton St. NE
Prior Lake, MN 55372
Council Member Chad LeMair
5524 Highpointe Court SE
Prior Lake, MN 55372
RE: Tim and Jane McCoy Variance Appeal
Case File 03-122
Dear Mayor Haugen and Council Members:
The purpose of this letter is to supplement the narrative and oral comments submitted
to the Planning Commission in support of the McCoys' variance application. Having
reviewed the 1994 Council resolution amending the Wilds PUD (copies of which are
attached to the original staff report and to this letter), and plats of the affected areas and the
ordinances relating to planned unit developments, we believe all residential properties
adjacent to the golf course are in a unique situation that allow the Council considerably more
latitude in granting rear yard setback variances. In short, here are the reasons.
1. The Wilds is a planned unit development (PUD), which by ordinance (1106.100)
is intended to provide a flexible approach to development and allow modifications to the
strict application of regulations within the various use districts. Specifically, Section
1106.401 permits PUDs to provide no rear yard setback when the abutting property is not
residentially zoned or used, as is the case with properties adjacent to the golf course.
2. In its 1994 amendment to the Wilds PUD' the City established a policy that no
more than a 5 foot rear yard setback is required for properties adjacent to the golf course
fairways.
Mayor Haugen and City Council Members
November 28, 2003
Page 2
3. The logic of the City's distinction between setbacks for the villa homesites (5 feet)
and the single family homesites (15 feet) appears to be to establish a 5-foot distance between
structures and the boundary of a 10- foot drainage and utility easement to which all the single
family lots adjacent to the golf course are subject. The villa lots, on the other hand, are not
subject to any drainage or utility easements along the rear lot lines, and as a result are only
subject to a 5-foot rear yard setback as stated in the January 1994 amendment. A copy of the
plat for The Villas at The Wilds is attached to this letter.
4. While the footings of the McCoys' deck, if permitted, will encroach upon the
City's drainage and utility easement area, no utility lines or other improvements have been
placed there to date. The McCoys have proposed, in their variance application, to enter into
an agreement with the City whereby they acknowledge the proposed deck may have to be
removed, temporarily or otherwise, in the event the City does propose to make improvements
in the easement area. This will preserve the City's interest in fully exercising its rights under
the easement and effectively means the McCoys are only asking for a 2.1 foot variance from
the 5-foot rear yard setback established in 1994.
5. The preexisting deck, much larger in size than the one McCoys wish to put in its
place, generated no complaints over the several years of its use, indicating it did not restrict
the views of neighboring properties.
6. Assuming that concerns remain about obstructing any neighbor's view of the golf
course, it is important to note the restrictive covenants applicable to properties in The Wilds
adjacent to the golf course make clear that a purchaser has no right to expect his or her view
of the golf course will be or remain unobstructed. The golf course is not required to prune
or thin trees or other landscaping and may add trees and other landscaping to the course, or
change its elevation or configuration, from time to time, any of which may have the effect
of blocking an owner's view ofthe course entirely. The specific provision is Section 16.03
of the First Amended Declaration dated and recorded July 31, 1995, with the Scott County
Recorder as Document 355988.
We believe all the facts and circumstances strongly support this reasonable use by
McCoys of their property, and respectfully ask the Council to consider the additional
information in ths letter and grant the variance requested by Mr. and Mrs. McCoy.
Sincerely,
6~
James D. Bates
JDB:bj
cc: Cynthia Kirchoff
I I
"RS94OC5"
RESOLUTION 94-06
RESOLUTION OF THE PRIOR LAKE CITY COUNCIL TO AMEND THE Wll.nS
PLANNED UNIT DEVELOPMENT
MOTION BY:
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
SECONDED BY:
the Prior Lake Planning Commission conducted a Public Hearing on the
6th day of January 1994, to act on a petition submitted by Prior Lake
Development L.P., to reduce the rear yard setback requirements for lots
abutting the fairways of the golf course; and
notice of the hearing pn said fi1otion has been duly published and posted in
accordance with the applicaltle Minnesota Statutes; and .,
the amendment will not adversely affect the land use relationship between
the golf course and homes, and the amendment is consistent with the
stated and desired objectives of the City; and
the amendment would result in an opportunity to address the full range of
the marketplace; and
the amendment is reasonable and produces substantial justice and is not
contrary to the interests of the City; and
There were no objections to the amendment by the public.
NOW, THEREFORE, BE IT RESOLVED BY THE PRIOR LAKE CITY COUNCIL,
THAT IT DOES HEREBY APPROVE THE AMENDMENT TO THE WILDS PUD AS
FOLLOWS: J
~
The Wilds PUD text pages 41, 42, and 43 is amended to reduce the rear yard setback-of
112 and 1/3 acre homesites from 25 feet to 15 feet and villa homesites from 20 feet to 5
fee~or lots located adjacent to the golf course fairways. .
"
""'"
APPLICABLE REGULATION
4629 Dakota St. S.E., Prior Lake, Minnesota 55372 / Ph. (612) 4474230 / Fax (612) 447.4245
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