bza-minutes-sep-27-22REGULAR MEETING MINUTES
This meeting was conducted in a hybrid format with in‐person and remote options for attending,
participating, and commenting. The City used Webex to conduct this meeting and members of the public
were able to monitor the meeting and provide comment by calling in.
Call to Order
The meeting was called to order at 7 pm and the land acknowledgement was read by Chair Carlson.
Roll Call
Members present: Kade Arms‐Regenold, Chris Carlson, Richard Orenstein, Ellen Brenna –
Planning Commissioner
Members absent: Nancy Nelson
Staff present: Jason Zimmerman – Planning Manager, Myles Campbell – Planner
Approval of Agenda
MOTION made by Orenstein, seconded by Carlson to approve the agenda of September 27, 2022, as
submitted.
Motion carried
Approval of Minutes
MOTION made by Carlson, seconded by Commissioner Brenna to approve the August 23, 2022 meeting
minutes.
Motion carried
1.Address: 4501 Merribee Dr
Applicant: Nancy Lyons
Request: To locate a shed in a front yard – closer than the principal structure and 33 feet off of the
required 35 feet to a distance of 2 feet from a front property line.
Jason Zimmerman, Planning Manager, reviewed the request, showed members its location in the
city, and elaborated on its corner location. Staff explained the lot’s current size and explained there’s
a proposal going before City Council in October for an adjacent vacated ROW to be added to the
property.
Zimmerman went on to review the property, the request, and how the ROW vacation and lot
consolidation would address the concrete slab crossing the current property line. The proposal is to
locate the new shed in the “front yard” closer than the principal structure and within the 35ft
setback. This portion of the yard acts as a side yard but due to zoning codes on corner lots, it’s
classified as having two front yards.
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Practical Difficulties
As proposed, the shed would be positioned in an area that both functions as a side yard and is
predominately screened from view by the existing fence. The intended size is not excessive
and it is a complementary use commonly found on single‐family lots. Staff believes the
proposed use is reasonable.
In light of the desire to construct a shed to hold bicycles, yard equipment, and other items,
the applicant notes that due to the topography of the lot there are few places where a shed
could be located while still practically fulfilling that purpose. The conforming portion of the lot
is far removed from the active areas. The dramatic changes in grade as well as the reduced
depth of the yard facing Lee Ave are unique circumstances that are not caused by the
landowner.
The proposed location for the shed is in an area that is shielded from view from the public
right‐of‐way by a fence. The portion of the property facing Lee Ave functions as a side yard,
and the current placement of the home is nonconforming in that it sits roughly 12 feet from
the (front) property line. While the introduction of the proposed shed would be a change to
the lot, it would be minor and staff believes granting the variance would not alter the
essential character.
Other Considerations
Staff assesses whether the request represents the smallest feasible variance or if there are other
options available:
Given the nature of the site as a corner lot, the only conforming alterative for the placement of
a shed would be at the bottom of the hill in the rear yard. While this would avoid the need for a
variance, its location would be ill‐served for the intended purpose of providing storage for
bicycles and other equipment typically associated with the garage (at the top of the hill).
Alternatively, no shed could be constructed and all items would need to fit within the garage.
Recommendations
Staff recommends approval of the variance to allow an accessory structure to be located closer to
the front setback than the principal structure.
Staff recommends approval for the variance of 33 feet off of the required 35 feet to a distance of 2
feet for an accessory structure from the front property line.
Further, staff recommends including the following condition:
1. The approvals shall be contingent on the final approval by the City Council and the recording of
a plat that combines the existing lot with the vacated right‐of‐way along Lee Avenue.
Staff and Board members reviewed the elevation on the lot, the vacated section details, the fence
height,
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Chair Carlson invited the applicant to speak.
Nancy Lyons, Applicant, thanked staff for their presentation and said they were available for questions
but didn’t have any details to add. Applicant added they love their house and want to maintain the
integrity of the home within the neighborhood.
Chair Carlson opened the open forum at 7:15pm.
Lauren Akin
2441 Lee Ave
I live the closest to the shed location and can see its location. I have a lot of confidence the shed will
only add value and I’m not opposed in any way.
Mathews
2420 Lee Ave
I have no objection and support both variances.
Staff received an email comment:
Judith Krause
4508 Meribee
I’m in support of the proposal and project.
There were no remote commenters.
Chair Carlson closed the open forum at 7:17pm.
Chair Carlson opened the Board Discussion.
Member Orenstein noted his agreement with staff analysis and all the requirements are met. Chair
Carlson echoed this statement. Commissioner Brenna added neighbor support of the project adds to
it’s approval.
A MOTION was made by Commissioner Brenna and seconded by Member Orenstein to approve the
variance to allow an accessory structure to be located closer to the front setback than the principal
structure
AND to approve the variance of 33 feet off of the required 35 feet to a distance of 2 feet for an
accessory structure from the front property line with the listed condition.
Motion carried.
2.Address: 309 Edgewood
Applicant: Roger Friedell
Request: To allow an increase in average grade over the existing elevation by 2.5 feet, 1.5 feet over
what is allowed by right.
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Myles Campbell, Planner started be showing the location in the City and provided a background of
the zoning, the property, topography, and the stormwater concerns at the front of the lot. The
applicant would like to teardown the current home and repair the grading to the home. Raising the
grade at the front elevation triggers the zoning variance request, as the average is increasing from
910.5 elevation to 913 average elevation. Staff represented the contours to illustrate the specific
elevations discussed.
Staff collaborated with Engineering and Environmental staff and noted their recommendation is to
approve a variance relating to average grade but a half foot less than the requested amount.
Practical Difficulties
The increase in grade is correcting an existing site issue that should be corrected given the
opportunity provided by the new build, overall staff finds this request reasonable.
While all lots often have flat or sloped areas in their topography to be worked around, few in
the city have this issue of being at level with their associated street, which many issues in
regards to directing storm water flows. Staff believes the site exhibits unique circumstances.
While the new house will be slightly higher than what is existing in terms of finished floor
elevation, it will not have a second story above the main floor and this variance would not be a
major contributing factor in the change in the lot’s appearance with the new home. Staff
believes that the requested variances will not alter the essential character of the
neighborhood and city.
Other Considerations
Staff assesses whether the request represents the smallest feasible variance or if there are other
options available:
As Engineering staff noted in their review, a lesser variance for increase in average grade could
allow for the applicant to correct the front grading issue without running into issues with
driveway slope or without dropping the walkout level to the same elevation as the floodplain to
the southwest.
Recommendation
Staff recommends denial of a variance to allow an increase in average grade over the existing
elevation by 2.5 feet, 1.5 feet over what is allowed by right.
Staff recommends approval of a variance to allow an increase in average grade over the
existing elevation by 2 feet, 1 foot over what is allowed by right.
Staff and members reviewed the request as a whole and the potential new home plans.
Chair Carlson invited the applicant to speak.
The applicants weren’t present.
Chair Carlson opened the open forum at 7:35pm.
There were no in person commenters.
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There were no callers.
Chair Carlson closed the open forum at 7:37pm.
Chair Carlson opened the Board Discussion.
Orenstein stated the request seemed reasonable and the grade change is to help the flow. Carlson
added as a homeowner, he would listen to the advisement of the engineering staff and thinks the
staff recommendation and condition is sound.
A MOTION was made by Orenstein and seconded by Carlson to deny the variance to allow an
increase in average grade over the existing elevation by 2.5 feet, 1.5 feet over what is allowed by
right.
Motion carried.
A MOTION was made by Orenstein and seconded by Commissioner Brenna to approve a variance
recommended by staff and allow an increase in average grade over the existing elevation by 2 feet, 1
foot over what is allowed by right.
Motion carried
3.Address: 6601 Plymouth Ave
Applicant: Paul Patton and Barbara Pierson
Request: To construct a three‐season porch within the shoreland setback – 13 feet off of the required 50
feet to a distance of 37 feet from the ordinary high‐water line.
Jason Zimmerman, Planning Manager, started the presentation by giving the Board a background on
the home and lot as well as it’s location in the City. The rear of the property backs up to Bassett
Creek and a rear deck was constructed in 1999. Staff pointed out that at the time, the interpretation
of the Shoreland setback did not require a variance for the deck (though with today’s interpretation
it is shown to be approximately 12 feet inside the required 50 feet setback).
Staff noted the applicant’s details to the proposal:
The porch would be limited to 18 feet wide by 12 feet deep
It would extend into the shoreland setback by no more than 13 feet
It would be elevated with only supporting posts intruding at the ground level
A modified stairway would also be within the setback, but by no more than the amount caused
by the new porch
The porch would not extend into the side setback
110 square feet of patio paving could be removed and replaced with a permeable, planted area
Practical Difficulties
The use of a three‐season porch, especially in a rear yard, is reasonable and typically would not
trigger the kind of scrutiny generated by this application. If not for the proximity to Bassett
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Creek, staff would have no issue approving the use. Staff believes the proposed use is
reasonable.
While adjacency to Bassett Creek is a limiting factor in seeking approval for the proposed three‐
season porch, hundreds of other properties across the city face similar regulations and are
generally able to remodel or redevelop in ways that do not require a variance. Staff has offered
a compromise that takes advantage of the portion of the rear yard most accommodating of a
conversion of the nonconforming deck, but does not believe additional expansion is warranted.
Given this option and the preferences of the applicants, staff does not find that unique
circumstances are the cause of the landowner’s problem.
The targeted requirements of the shoreland setback are designed primarily to limit the
intrusion of structures or other uses that may detract from the experience of using the
protected waters (in this case, Bassett Creek). The addition of an elevated three‐season porch
visible from the creek would contradict these efforts. Therefore, due to the sensitive nature of
the Shoreland Overlay District and the importance placed on maintaining the “natural
character” of the protected waters, staff believes granting the variance would alter the
essential character.
Other Considerations
Staff assesses whether the request represents the smallest feasible variance or if there are other
options available:
As discussed above, staff believes a three‐season porch constructed in place of the existing
deck would provide the enclosed experience desired by the applicants while still respecting the
intent of the shoreland setback, though the layout or size may not be the preferred scenario.
Recommendation
Based on the factors above, staff recommends denial of the variance request for 13 feet off of the
required 50 feet to a distance of 37 feet to allow the construction of a three‐season porch.
Staff and members reviewed the plan, DNR oversight of the creek, the original variance in 1999,
current landscaping, and the expansion of height versus out towards the creek.
Chair Carlson invited the applicant to speak.
Paul Patton, Applicant, thanked staff for their help and guidance through the variance process.
Applicant added that he cares a lot about the ecology of the Creek and has created educational
programs and live streams about local birds and wildlife.
The applicant added that his property is hemmed in on all four sides by modern setbacks and
considers that to equal a unique situation. The applicant’s opinion is that staff’s suggestion to place
the new screened in porch over the deck is worse as it converts the current permeable area into
runoff. He provided reasons why the proposal is not impacting the sightlines, or negatively impacting
the character of the neighborhood, while adding the intrusion of deck posts is not in the floodplain.
The applicant pointed out that staff alternatives would leave a porch either off the bathroom or
require a walkway from the house to the screened in porch. Neither of these options match the
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character of the home nor do they create a welcoming living space that they desire. The applicant
stated a number of neighbors offered to attend and voice support, however he told them that was
not necessary.
Chair Carlson opened the open forum at 8:11pm.
There were no in person commenters.
No remote commenters.
Chair Carlson closed the open forum at 8:41pm.
Member Orenstein looked at the requirements for approving a variance, the request use is
reasonable, the impacts to the neighborhood could go either way, and points out the circumstances
surrounding the request are caused by the homeowner. The circumstance is not unique and
therefore approval fails 1/3. Orenstein added the homeowner seems environmentally conscious and
can understand the desire for a 3‐season porch but the group is bound by legalities of the three
requirements. Chair Carlson added he’s struggling with the shoreland district standards regarding the
impacts to the character of the area because the area is a suburban neighborhood. Commissioner
Brenna noted that the City may not have historically done the best job to protect water resources,
that doesn’t negate the need to protect them now and in the future. While this is a tough decision,
she sides with the importance of the shoreland overlay. Member Arms‐Regenold pointed out the
complexity of the shoreland overlay changing, that the home and deck were built in compliance to
the standards of that time. He added that the unique circumstance may not be the homeowner’s
doing as you’d have to hold them responsible for a house location they inherited when purchasing
the home.
Staff responded that when the deck was constructed it was intended to be out of the overlay and
staff recognizes that the current homeowner shouldn’t be penalized for a past event. Thus, the
compromise of the deck technically being in the overlay, but staff agreeing to an expansion without
adding width. Even though there are structures in the overlay currently, that doesn’t mean the City
needs to continue to impact the overlay and setback.
A MOTION was made by Orenstein and seconded by Carlson to deny of the variance request for 13
feet off of the required 50 feet to a distance of 37 feet to allow the construction of a three‐season
porch. Denial based on all three requirements not being met, the circumstances are caused by the
landowner.
Motion carried.
4. Address: 610 Ottawa Ave N
Applicant: Lori Bosclair
Request: To build a deck off an existing office building, 17 feet off the required 35 feet from the west
property line, and 4.5 feet off the required 20 feet from the north property line.
Myles Campbell, Planner, started the presentation by laying out the two variances the applicant is
requesting, the goal is to create an outdoor meeting area for the business. He continued by going
into detail on the lot, its zoning, access points, and parking.
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Practical Difficulties
A space for employees to gather outdoors associated with a principal office use is not wholly
out of place. And while the deck could be reduced in size, overall staff finds this request
reasonable.
Staff does not believe the site exhibits unique circumstances. It is of a relatively standard size
and shape, and is not impeded by floodplains or wetlands. The only physical design challenge
not created by the applicant might be the north‐sloping topography to the front of the lot.
Rather than avoiding this area however, the proposed deck plans show the deck is located in
this area, and can be constructed despite the topography.
The deck would be visible from Ottawa Ave N and would be closer to that street than either of
the other buildings along the east side of Ottawa. That said, given the few properties along the
street to compare to, staff isn’t concerned about the impact on streetscape. An existing mature
tree to the front of the building would hopefully be preserved along with the deck project
although this point is not addressed by the applicant. Staff believes that the requested
variances will not alter the essential character of the neighborhood and city.
Other Considerations
The deck as shown is quite large, being just over 470 sq. ft. and seating 21. Reducing the size of
the deck could reduce the front setback request or potentially eliminate the needed side
setback request.
Just south of the building, in between it and the parking lot is a gravel area which could be used
to create a patio area for employees to use without needing a variance.
Recommendation
Staff recommends denial of a variance of 17 feet off the required 35 feet to a distance of 18 from the
west property line.
Staff recommends denial of a variance of 4.5 feet off the required 20 feet to a distance of 15.5 feet
from the north property line.
Members and staff discussed greenspace, setbacks, potential impacts to character, the building’s
proximity to the sidewalk, and a potential variance for a patio alternative and the need for regrading.
Chair Carlson invited the applicant to speak.
Lori Bosclair, Applicant, mentioned that the gravel area staff referred to as an alternative location is a
holding space for runoff water and has sump pumps installed there to pump water out. Prior to the
applicant’s ownership of the building, that area had water and mold issues, that area was created for
remediation. She added the unique circumstances aren’t due to the topography but rather the use of the
building; this building is a corporate headquarters. The applicant went on to discuss employee safety and
proper circulation with Covid concerns.
Chair Carlson opened the open forum at 8:44pm.
There were no in person commenters.
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No remote commenters.
Chair Carlson closed the open forum at 8:46pm.
Orenstein commented that he’s struggling to understand the applicant’s definition of unique
circumstances as it’s not the building’s fault that it’s the size it is. Chair Carlson added that in the past
there has been some leniency with setbacks but this request extends beyond that reasonable amount.
Orenstein added he believes it changes the characteristic of the area, Arms‐Regenold echoed that and
added this request is the biggest percentage of setback variance the group has ever approved.
Chair Carlson asked the applicant if there were other options and they responded they’re amenable to
re‐submitting a more setback conducive plan. Chair Carlson suggested tabling the request to the
following meeting and reviewing a new plan. Staff requested the Board offer guidance to the applicant
for the next meeting. They discussed layout size changes, reduction in setback variance, and building
footprint.
A MOTION was made by Carlson and seconded by Arms‐Regenold to table the variance request of a
variance of 17 feet off the required 35 feet to a distance of 18 from the west property line and the
request of a variance of 4.5 feet off the required 20 feet to a distance of 15.5 feet from the north
property line to the following meeting in October 2022.
Motion carried.
Council Member Rosenquist was present and mentioned the following day will be a ribbon cutting
for the Franklin Center, formally known as the Academy of Whole Learning. Rosenquist added HRA
approved a levy for $241,000 and City Council approved a 11.3% tax levy 4‐1.
5.Adjournment
MOTION made by Orenstein, seconded by Carlson and the motion carried unanimously to adjourn
the meeting at 8:59 pm.
Motion carried.
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Chris Carlson, Chair
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Amie Kolesar, Planning Assistant