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12-10-90 BZA Minutes � 17 � GOLDEN VALLEY BOARD OF ZONING APPEALS DECEMBER 10, 1990 The regular meeting of the Golden Valley Board of Zoning Appeals was held Monday, December 10, 1990, at 7:30 P.M. in the City Council Chambers, City Nall , 7800 Golden Valley Road, Golden Valley, Minnesota. The following Board members were present: Chairman, Mike Sell Art Flannagan Larry Smith Mahlon Swedberg Herb Polachek, alternate Absent by prior arrangement, Joan Russell . Also present was Allen Barnard, City Attorney. The first order of business was approval of the minutes of a regular meeting held November 13, 1990, copies of which had previously been distributed to the Board. Larry Smith moved to approve the minutes as written and presented. Second by Herb Polachek and upon vote carried. 90-12-29 (Map 16) Residential 1031 Pennsylvania Avenue North Michael Roach The Petition is for waiver of Section: 11.21 Subd. 7 (A) front setback, for 3.3 feet off the required 35 feet from Pennsylvania Avenue to a distance of 31.7 feet to the house as it now exists. Purpose of the waiver request is to correct existing non-conforming status so a fully conforming addition may be added. The petition was in order, consent obtained from all but one adjacent pro- perty owner. Mr. Michael Roach was present. No others were in attendance. Larry Smith questioned the lack of one signature on the petition. Mr. Roach said he had contacted everyone; however, the one property owner would not sign anything even though they had no objections. {i � � � Board of Zoning Appeals Page 2 December 10, 1990 Mr. Roach described the existing home which was built in 1926. There are two lots and it would be used as one homesite. The existing home has a porch which will be torn of�, however the home is 31 .7 feet from Pennsylvania Avenue. The remodeling would add around 1,500 square feet and when completed the home would appear as new. The addition would meet the 35 foot setback. Mahlon Swedberg asked if any consideration had been given to remodel sufficiently on the old portion so it would meet the 35 foot requirement. Mr. Roach said they had looked at this but it would require removal of the entire front foundation and involve almost total demolition to do so. Mr. Roach said cost of the proposed remodeling is in excess of $70,000. The Board reviewed the complete structural plans provided by Mr. Roach. Art Flannagan said he could remember Pennsylvania Avenue as a dirt road and aquisition of right-of-way may have created the present setback of the house. At the close of discussion, Art Flannagan moved to approve the waiver as requested, noting the property abuts Bassett Creek with flood plain and set- back constraints, the topography of the lots, and the major improvement that will result upon completion. Second by Mahlon Swedberg and upon vote carried. Chairman, Mike Sell , noted the proponent on the next petition was not pre- sent as yet and the Board agreed to move to the next petition and return later to the 3030 Glenden Terrace petition. 90-12-31 (Map 9) Residential 915 North Tyrol Trail Emme & Stephen Woehrle The Petition is for Section: 11.90 Subd. 4 (B)1 administrative determination, regarding non-conforming gazebo. The petition was in order, notice had been sent to all adjacent properties. Lloyd Becker noted that signatures of adjacent properties was not required because there is no waiver requested but an administrative determination in accordance with Section 11 .90 Subd. 4 B(1) of the City Code. Present for the meeting were Avis Woehrle, Emma Woehrle and Stephen Woehrle, 915 Tyrol Trail . Also present were Mr. Gerald A. McCabe, 1001 Tyrol Trail and attorney, Ted Dooley, who represented Mr. McCabe. Board of Zoning Appeals �� 1 � � Page 3 December 10, 1990 The Board asked Secretary, L1oyd Becker, to clarify the administrative peti- tion procedure. Lloyd Becker noted the materials provided in the agenda packet included copies of all correspondence, affidavits, legal opinions and District Court determination relative to the dispute between the two pro- perty owners. This matter came on for hearing before Judge Deborah Hedlund, in District Court on July 18, 1990, as a result of the Woehrle's seeking a Writ of Mandamus to compel the City of Golden Valley to enforce the Zoning Code and require Mr. Gerald McCabe to move a gazebo which appears to encroach on the Woerhle property by .49 inches. The judge subsequently found in her order that the Woehrles had not exhausted all administrative remedies as provided for in the City Code. Section 11 .90, Subd. 4(B)1 says the Board of Zoning Appeals shall have the power to decide appeals where it is alleged that an error has been made in any order, requirement, decision or determination and/or interpretation made by a City administrative officer in enforcement and administration of this chapter. The Woehrle's petition is of staff decision not to charge Mr. McCabe with violation of the Zoning Code but rather staff determined after consultation with City legal counsel, this was more appropriately a civil matter between two property owners, which if resolved, would in all proba- bility result in moving of the gazebo. Lloyd Becker further described the general sequence of events to date. The City of Golden Valley received a letter from Attorney, James MacKinnon, dated September 8, 1989, in which he stated he had been retained by Ms. Woehrle to represent her regarding an encroachment of a gazebo owned by Mr. Gerald McCabe, 1001 Tyrol Trail . This was based on a survey that was done for the Woehrles. On September 19, 1989, Lloyd Becker, wrote to Mr. Gerald McCabe regarding the survey and requested his cooperation in taking the corrective measures necessary for compTiance. Mr. McCabe subsequently phoned Lloyd Becker, said the survey was in error, there were survey discrepancies in the subdivision and that he, in fact, had information that differed from the Woehrle survey. Mr. McCabe further stated that the gazebo was on a foundation that existed for many years before. I urged Mr. McCabe if he had other information he should meet with the Woehrles and resolve it. On October 16, 1989, another letter was sent by Lloyd Becker to Mr. McCabe regarding the gazebo. The City subsequently received a letter from Mr. Steven Pihlaja, an attorney representing Mr. McCabe, wherein the boundary lines were in dispute, adverse possession was implied and that Mr. McCabe was within his rights. This was subsequently referred to City Attorney, Allen Barnard, which resulted in the determination this was more appropriately a civil matter between the two parties because of the disputed boundaries and length of time of existance of the gazebo. ,�'` �i � � � Board of Zoning Appeals Page 4 December 10, 1990 After lengthy review of the information provided by staff, the statements by Mr. McCabe and his legal counsel , and presentation of substantial materials by Avis Woehrle, the consensus of the Board of Zoning Appeals is that staff acted appropriately in this matter. Larry Smith moved that the Board of Zoning Appeals finds that as of March 21, 1990, there was insufficient, solid, undisputed information for Lloyd Becker, Zoning Administrator, to act in any other manner than what had been determined and occurred. Second by Mahlon Swedberg and upon vote carried unanimously. Larry Smith subsequently moved that based on current information now deve- loped through the court, sworn affidavits by certain parties and no other undisputable survey information provided by Mr. McCabe the Board finds and directs Lloyd Becker, the Zoning & Community Services Director for the City of Golden Valley, to issue a formal complaint against Mr. Gerald McCabe, 1001 Tyrol Trail , Golden Valley for violation of the City Zoning Code. Second by Herb Polachek. During discussion on the motion, Larry Smith again emphasized the affidavits regarding the gazebo, the lack of any other survey as originally claimed by Mr. McCabe, the affirmatian by Mr. McCabe's legal counsel that there was no other survey and the disputed date of construction of the existing gazebo. Lloyd Becker stated he understood the motion to direct him to begin enforce- ment procedures by sending a letter to Mr. McCabe along with a copy of the Board of Zoning Appeals minutes requesting his voluntary cooperation in resolving this matter and proceeding further, if necessary, to comply with the Board's direction. Chairman Sell called the vote and it was unanimous for approval of the motion. 90-12-30 (Map 4) Residential 3030 Glenden Terrace Grace Belsaas The Petition is for waiver of Section: 11.21 Subd. 7(C)1 side setback, for .9 of a foot off the required 15 feet from the east lot line to a distance of 14.1 feet to the house as it now exists at its closest point. Purpose of the waiver is to correct the existing non-conforming status to provide for a fully conforming addition at the rear. The petition was in order with consent from adjacent properties. No adja- cent property owners were present. � � � � Board of Zoning Appeals : Page 5 December 10, 1990 Secretary, Lloyd Becker, noted the contractor representing the owner had confirmed earlier in the day he would be in attendance; however, there may be some confusion over the meeting held on Monday rather than Tuesday. Lloyd Becker said it was imperative the Board address this item as another month delay could create serious construction problems. The Board discussed the request, which was to correct a very minor error of nine-tenths of a foot at the very corner of the existing building. Herb Polachek moved to approve the waiver as requested, noting the lot line configurations, topography, the curve of the street and the waiver as being more administrative than structural . Second by Art Flannagan, and upon vote carried. There being no further business to come before the Board, it was upon motion, second, and vote to adjourn at 9:20 P.M, �z���� Mike Sell , Chairman loyd G. Becker, Secre ary