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08-25-09 BZA Minutes Minutes of a Regular Meeting of the Golden Valley Board of Zoning Appeals August 25,2009 A regular meeting of the Golden Valley Board of Zoning Appeals was held on Tuesday, August 25,2009 at City Hall, 7800 Golden Valley Road, Golden Valley, Minnesota. Chair Segelbaum called the meeting to order at 7 pm. Those present were Members Kisch, Nelson, Segelbaum, and Planning Commission Representatives Eck and McCarty. Also present were City Planner Joe Hogeboom and Administrative Assistant Lisa Wittman. Member Sell was absent. I. Approval of Minutes - July 28, 2009 MOVED by Nelson, seconded by McCarty and motion carried unanimously to approve the July 28, 2009 minutes as submitted. Segelbaum requested that the order of the petitions be changed as follows: 525 Radisson Road, 2500 Mendelssohn Ave. N., 316 Meadow Lane N. II. The Petitions are: 525 Radisson Road (09-08-12) Gregory and Lee Anne Schaefer, Applicants Request: Waiver from Section 11.21, Subd. 11 (A)(2) Rear Yard Setback Requirements . 11 ft. off the required 36 ft. to a distance of 25 ft. at its closest point to the rear yard (east) property line. Purpose: To allow for the construction of a deck. Hogeboom stated that the applicants are requesting a variance from rear yard setback requirements in order to replace their existing deck with a new deck located closer to the rear yard property line. He stated that staff is recommending approval of this variance request due to the grade of the lot, the placement of the home on the lot and the fact that the depth of the lot is creating a fairly large rear yard setback requirement. Eck referred to the survey and noted that the existing house is located in the rear yard setback area. Hogeboom explained that the existing house was built prior to 1982 so it is allowed to be within 10 feet of the rear yard property. McCarty questioned why the rear yard setback line isn't parallel with the rear yard property line. Hogeboom explained that the rear yard setback is determined by taking 20% of the lot depth and the depth of this lot is different on each side. Minutes of the Golden Valley Board of Zoning Appeals August 25, 2009 Page 2 Nelson questioned the size of a typical rear yard setback. Hogeboom said it varies and added that a home is not typically placed as far back on the lot as this home was. Eck referred to the application and noted that the adjacent neighbors located at 416 Turnpike did not sign the application. Hogeboom stated that they did receive a hearing notice for this meeting. Lee Anne Schaefer, Applicant, showed photos of their back yard and discussed how the back yard is unusable. Greg Schaefer, Applicant, added that it is difficult to build a deck on this lot because of its odd shape. Mrs. Schaefer stated that they can't build a deck on the other (north) side of the property because of a drainage and utility easement. Mr. Schaefer stated that the proposed deck won't affect any of the neighboring properties at all. He referred to the neighbors at 416 Turnpike and stated that they were out of town but they gave him their verbal approval. Nelson asked about the free standing structure shown in the applicant's photos. Mrs. Schaefer explained that there is a sandbox and a patio under the free standing structure. She referred to the photos and noted where the proposed new deck would be located. McCarty asked the applicants if they had considered raising the grade of the property or building tiered decks in order to obtain more usable space. Mrs. Schaefer said they thought about raising the grade but they would rather build a new deck. Mr. Schaefer said that the entrance to the house is quite a bit higher so he doesn't think tiered decks would work. Mrs. Schaefer reiterated that the proposed location of the deck is really the only place on the lot they can build anything. Segelbaum opened the public hearing. Hearing and seeing no one wishing to comment, Segelbaum closed the public hearing. Kisch said the lot itself constitutes a unique situation especially given the slope and the fact that they can't build on the north side because of the easement. He said the visual impact will be minimal, it is a reasonable request and there really isn't a lot of buildable area on this lot. Nelson agreed and added that the house was placed oddly on the lot. She said she is in favor of granting the variance request especially since there will still be a large setback area even after the deck is built. Eck agreed that the impact on the neighborhood seems minimal and that the request is reasonable. MOVED by Kisch, seconded by Nelson and motion carried unanimously to approve the variance request for 11 ft. off the required 36 ft. to a distance of 25 ft. at its closest point to the rear yard (east) property line to allow for the construction of a deck. Minutes of the Golden Valley Board of Zoning Appeals August 25, 2009 Page 3 2500 Mendelssohn Avenue North (09-08-14) Marvin Frieman, Applicant Request: Waiver from Section 11.30, Subd. 11 (6)(a) Front Yard Setback Requirements . 11.29 ft. off the required 35 ft. to a distance of 23.71 ft. at its closest point to the front yard (west) property line along TH 169. Purpose: To allow for the construction of an addition to the existing building Request: Waiver from Section 11.30, Subd. 11(6)(a) Front Yard Setback Requirements . 2.67 ft. off the required 35 ft. to a distance of 32.33 ft. at its closest point to the front yard (south) property line along Mendelssohn Ave. N. Purpose: To allow for the construction of an addition to the existing building Hogeboom discussed the history of this property and stated that the applicant is proposing to construct an addition onto the existing building which will be used as office space. He stated that this property has been before the Board of Zoning Appeals in the past in order to bring the existing building into conformance and added that it appears when TH 169 was constructed some property was taken in order to build the exit ramp. He stated that staff is supporting this request due to the odd shape of the lot. Eck asked if the building was in conformance when it was originally built. Hogeboom said he was not sure what the requirements were when the building was originally built however variances have been granted to bring the existing building into conformance. Eck said the building appears to be unoccupied and asked if the proposed addition would accommodate new tenants. Rod Mysliwiec, RNR Construction, Contractor for the proposed addition, stated that if the variances are approved three tenants will be moving in. He added that they are completely renovating the interior of the building. McCarty asked if the addition could be modified so as not to require a variance along Mendelssohn Ave. Mysliwiec said the plans could be modified. Kisch asked about the rationale for the location of the proposed new addition. Mysliwiec said the parking spaces are tight in the back of the building so they are proposing to move it forward toward Mendelssohn Ave. Segelbaum opened the public hearing. Seeing and hearing no one wishing to comment, Segelbaum closed the public hearing. Minutes of the Golden Valley Board of Zoning Appeals August 25, 2009 Page 4 McCarty said he realizes that a taking for the TH 169 exit ramp has caused some hardship on the west side of this property but he is having a hard time supporting the variance request on the south side. Kisch asked Hogeboom if this property has adequate parking. Hogeboom said yes. Kisch said he thinks the lot is unique. He said he is less concerned about the west side variance request because the proposed addition will be further away from that property line than the existing building already is. He questioned if obtaining more leasable space is really a hardship. Eck said it would be difficult to establish a real hardship since the proposed addition could be reduced slightly however the addition would intrude less than the existing building and there are no neighbors impacted so he can't object to the proposal. Nelson said she doesn't have an issue with the proposed addition because it is not intruding any more into the setback than the existing building currently does. Segelbaum stated that the proposed addition gives this building a strange shape. He said he'd be curious to know if the Board would like to see the addition moved further to the north and in turn giving a larger variance from the west side of the property instead of what is being requested. Kisch said he would prefer that option if the applicant would be open to the idea. McCarty said he doesn't want to give a larger variance to the west side of the property and no matter what the applicant does the building is still going to be oddly shaped. Mysliwiec said moving the addition to the north and lining the addition up with the front of the existing building would be fine with him. McCarty referred to a chimney/smokestack shown on the plans and asked the applicant if he plans to remove it. Mysliwiec said yes. Segelbaum asked the applicant if he would like to table this request to find alternate designs that would shift the proposed addition to the north. Mysliwiec said he'd be willing to wait until the next meeting in order to show the Board new plans that would make the building flush on the south end. Marvin Frieman, Applicant, stated that they intend to be in this building for a long time and they want to enhance the neighborhood. He said as long as they can start remodeling the interior of the existing building he would be ok tabling the variance request until the September Board of Zoning Appeals meeting. MOVED by Kisch, seconded by Nelson and motion carried unanimously to table the applicant's request until the September 22,2009 Board of Zoning Appeals meeting in order to revise the plans to illustrate alternatives to moving the addition further north and aligning the proposed addition with the existing building on the south. Minutes of the Golden Valley Board of Zoning Appeals August 25,2009 Page 5 316 Meadow Lane North (09-08-13) Maggie Bostrom/Leo Furcht, Applicants Request: Waiver from Section 11.21, Subd. 11(A)(3)(c) Side Yard Setback Requirements . 8 ft. off the required 8 ft. to a distance of 0 ft. at its closest point to the side yard (south) property line. Purpose: To bring the recently constructed deck into conformance with zoning code requirements. Hogeboom referred to a survey of the property and stated that there was an error on the agenda. The variance request should be for 8 feet off the required 8 feet to a distance of 0 feet at its closest point to the side yard (south) property line. The survey showed that the southeast corner of the deck is located 0.1 feet away from the property and the southwest corner of the deck is 0.2 feet over the property line. He explained that the Board of Zoning Appeals cannot grant a variance to allow something to be built on another person's property. He added that staff is recommending denial of this request because the deck is too close to south property line that the deck was built earlier this year without a building permit. He noted that the applicant could build a 25 square foot landing area with stairs in the setback area without the need for a variance. Segelbaum asked Hogeboom if this request would have even come to the Board of Zoning Appeals had staff realized that the deck was built over the property line. He asked about the City Attorney's opinion in this case. Hogeboom said if staff had realized that the deck was built over the property line the City would have required that the deck be removed and would not have given the applicant the option to come before the Board of Zoning Appeals. Maggie Bostrom, Applicant, apologized for not obtaining a building permit. She said she was under the impression that if the deck was not attached to the home she wouldn't need a permit. Brian Dillon, Applicant's Attorney, explained that they realized after obtaining the survey that the southwest corner of the deck encroaches 0.2 feet into the neighboring property to the south. He referred to the survey and stated that he doesn't understand how it can be accurate because the retaining wall located on the property is visually closer to the property line than the deck. He showed the Board photos of the deck, the retaining wall and the survey stake. He asked the Board if this item could be tabled to allow more time to show that perhaps the retaining wall encroaches, but not the deck. Segelbaum asked how close the deck would be to the property line if Mr. Dillon is correct about the survey being inaccurate. Dillon said he thought the deck would still be within inches of the property line, but he doesn't think the deck crosses over the property line. Minutes of the Golden Valley Board of Zoning Appeals August 25, 2009 Page 6 McCarty asked who built the deck. Dillon said a contractor built the deck. McCarty said it is clear on the survey that there is an encroachment over the property line. Dillon said he would rather remove the retaining wall than the deck. Segelbaum noted that one way the Board could handle this issue would be to vote on the original request for 7.9 feet off of the required 8 feet to a distance of 0.1 feet then the applicant would have to comply and remove the portion of the deck or retaining wall that is encroaching on the neighboring property. Dillon asked if the Board could conditionally grant approval for the deck and explained that they have not been able to communicate with the neighbor to south to try and resolve the issue. Segelbaum asked if the applicant has considered moving the retaining wall as a gesture of good will. Dillon reiterated that they haven't been able to talk to the neighbor to the south. Nelson asked Hogeboom if retaining walls have the same setback requirements as decks. Hogeboom said retaining walls can be built right up to a property line. Segelbaum asked about the hardship in this case. Dillon stated that the lot is only 40 feet wide with very narrow setbacks on both sides of the house so anything built on the south side would encroach into the setback area because the existing house already does. He stated that there is also a significant slope on this lot that creates a dangerous condition and the previously existing concrete steps and retaining wall were deteriorating and needed to be replaced. He noted that the south side of the house is a high traffic area and is the entrance most used. He stated that the slope makes that area hard to traverse and added that there is a safety issue without a deck that has platforms and there is also no parking allowed on the street so cars have to park in the back and use this entrance. Bostrom showed the Board some photos and explained that she cannot access the back yard on the north side of her property because that neighbor installed a fence. Segelbaum opened the public hearing. Daria Heiden, 312 Meadow Lane North, said it is not true that the applicant couldn't get a hold of her. She stated that had the applicant pulled a building permit she would have known the rules. She said that because part of the deck is on her property it will affect the value of her home and will be problem for her in the future if she tries to sell her house. Laura Kisling, 303 Meadow Lane North, showed photos of Ms. Heiden's property and pointed out how the deck encroaches on Ms. Heiden's property. She stated that allowing the deck to encroach will cast a cloud on the deed of the property and could cause problems when selling the property. Segelbaum explained that the Board of Zoning Appeals and/or the City cannot allow anyone to build something on someone else's property. The Board could only allow a structure to be built right up to a property line. Hogeboom added that the City would not Minutes of the Golden Valley Board of Zoning Appeals August 25, 2009 Page 7 stop a person from removing something from their property. He reiterated that if the Board grants a variance for the applicant's deck it should be noted that any portion encroaching on the neighboring property must be removed. Kisch asked Ms. Heiden if she would object to the deck if it were built right up to the property line and how she would feel about a fence along the property line. Heiden said if a fence was located on the applicant's property she would not object to it but the deck is too close to her house and she is concerned about the value of her property. She added that no one is allowed to park on Meadow Lane so that should not be considered a hardship for the applicant. Rose, Neighborhood Letter Carrier, said that the applicant has turned her house around and people comment to her how beautiful the house is and everyone in the neighborhood is in favor of the deck. She added that that deck allows for better access to the back yard. Linda Martineau, 315 Meadow Lane North, agreed that the applicant has made her house much better. She said if she were to buy Ms. Heiden's house the deck in question is something she'd like to look at. She said there have been issues between the neighbors in the past before the applicant built this deck. She added that the neighboring house isn't as well maintained as the applicant's and that the applicant has offered to buy property from her neighbor in order to resolve the issue. Son of the Applicant, stated that the deck is beautiful and great. It makes accessing the house and yard easier and to have to tear it down over 0.2 feet sounds ridiculous. He said it would hurt him to watch his mom have to tear the deck down because he sees it as an improvement to the house and neighborhood. Avis Veselka, 320 Meadow Lane North, said if there had been a permit obtained they wouldn't have this problem. She stated that the applicant has to walk on her property when she goes around the north side her house and this situation is unfair to Ms. Heiden. She said she is not in favor of the deck. Mary Ann Gilbert, 321 Sunnyridge Lane, said that most people in the neighborhood are in favor of the deck and she knows the applicant is willing to come to some sort of agreement with the neighbor to her south to resolve the issue. Seeing and hearing no one else wishing to comment, Segelbaum closed the public hearing. Dillon stated that the opposition to this deck is based on personal animosity. He reiterated that the applicant has tried to converse with Ms. Heiden and clearing up the title is exactly what they are trying to do, they just need more time. He said he really doesn't think the deck will negatively affect property values. He added that hardship is really the only relevant factor in this case and the encroachment issue can be resolved. Minutes of the Golden Valley Board of Zoning Appeals August 25, 2009 Page 8 Segelbaum explained that the Board has a few options. They could grant a variance for 7.9 feet off the required 8 feet with the condition that everything complies without seeing a new survey, they could deny the variance request or they could table the request as the applicant has asked. Eck said that the deck is very attractive and enhances the property. He said he has difficulty rationalizing the hardship based on the narrowness of the lot because there is a way to build an access to the house and the yard without requiring a variance so the fact that the applicant chose to build a deck instead does not constitute hardship.. He said he would have a hard time supporting this request. Kisch said he understands there were alternate ways to build an access but if a 6-foot high fence were built along the south property line it would create the same effect with less of a landscaped area. He said he is in favor of granting a variance for 7.9 feet of the required 8 feet with the understanding that the entire structure must be located on the applicant's property. He added that he believes the narrowness of the lot is the hardship in this case. Eck said he doesn't understand the relevance of comparing a deck and a fence because fences are allowed to be built in setback areas but decks are not. He questioned why the City even has setback requirements if that is the case. Hogeboom explained that if this variance request was approved staff would recommend that the applicant obtain some sort of easement with the neighboring property because the applicant would have to trespass on the neighbor's property in order to maintain the deck. McCarty stated that a 25 square foot, conforming landing located a foot away from the property line would still require the applicant to trespass on the neighbor's property to do maintenance. Hogeboom reiterated that a 25 square foot land would however be allowed. by the Zoning Code. McCarty said he is frustrated that there was no permit process or variance process before the deck was built but even if the project went through the proper channels he would support the deck being built right up to the property line because he does see a hardship in this case. Eck noted that a landing with steps on both sides would provide the same access as the deck. McCarty stated that the Board has given variances in the past for structures that have already been built that have less of a hardship than this property and he think this is a reasonable use. Nelson questioned if the City knows whether or not the deck was built properly or is structurally sound since no permits were obtained. Hogeboom stated that if this variance request is granted that applicant would still have to apply for a building permit. Segelbaum said he thinks the deck is a reasonable use but he doesn't think it is reasonable to build something using the entire setback area. He said there are alternate designs that could have been considered and there is an impact to surrounding property owners. He said the deck may increase the value of this property but he is concerned about it being built right up to the property line. He added that the deck seems fairly high and would "look over" a 6-foot high fence. He stated that if a fence could be built that Minutes of the Golden Valley Board of Zoning Appeals August 25,2009 Page 9 would hide the deck from view he may be in favor of granting the variance request. Kisch noted that the proximity of what was the existing stoop puts a person at the same level as a fence. Eck said he still doesn't understand what the hardship is in this case. He agreed that the lot is narrow and it was difficult to access the back yard, but there are alternatives that don't require variances. McCarty reiterated that the shape and size of the lot to him are true hardships and the applicant can't have a deck elsewhere. Eck questioned if not being able to have a deck is a hardship. McCarty said this is one of the greatest hardships he has seen since he's been on the Board. Kisch stated that a stoop would create more of an issue with allowing a ladder or maintenance because the access is better with the deck. Segelbaum questioned if the allowed 25 square feet of landing area is not sufficient. McCarty said a 25 square foot landing would leave a foot or two of setback space that would not be usable and at least the deck is usable space. Segelbaum said he can't justify the deck being right at the property line. Nelson said she is concerned that three staff member, the City Attorney and the neighbor are against this proposal. Kisch reiterated that to him the impact of a fence and this deck are the same. Segelbaum asked if the Board could consider allowing a variance for a landing bigger than 25 square feet. Hogeboom stated that anything over 25 square feet in area would be considered a deck. MOVED by Kisch, seconded by McCarty to allow a variance for 7.9 ft. off the required 8 ft. at its closest point to the side yard (south) property line for the recently constructed deck with the condition that the deck receives a building permit and a final inspection. The motion was denied 3 to 2. Members Segelbaum, Eck and Nelson voted no. III. Other Business No other business was discussed. IV. Adjournment The meeting was adjourned at 9:42 pm. (~'h. h l ~~_____ Chuck Segelba'Um, Chair -'''''.. ) ~~Liaison