5.2. SR 08-15-2011REQUEST FOR ACTION
TO ITEM NUMBER
Ci Council 5.2.
AGENDA SECTION MEETING DATE PREPARED BY
Communi Develo ment Au st 15, 2011 Chris Leeseber ,Park Planner-Planner
ITEM DESCRIPTION REVIEWED By
Consider Request by Jerome and Jean Hendrickx, 21144 Twin erem Barnhart, Plannin Mana er
Lakes Road for Variance -Accessory Structure Regulations, REVIEWED BY
Case No. V 11-01 -Public Hearing Robert Thistle, Interim City
Administrator
ACTION REQUESTED
Staff recommends that the City Council deny the appeal, as illustrated on drawings dated 7/5/11, for the
following reason:
1. The application does not meet all of the variance criteria set forth in Section 30-635,
specifically Criteria #1, 3 & 4.
2. There are other solutions that do not require a variance.
OVERVIEW
The subject property is 18.28 acres in size with four accessory structures totaling 14,876 square feet. The
parcel appears to have been 20 acres in size but when Sherburne County upgraded County Road 13, the
property lost some acreage and separated the property into two parts.
Existing Garage: 676 sgft (this is the structure they avant to replace avith a 45x40 building 1,800 sgft)
Structure #1: 3,640 sgft
Structure #2: 5,700 sgft
Structure #3: 4,860 sgft
The ordinance, for this property, allows only two detached accessory structures not to exceed 8,000
square feet total of attached and detached accessory structures.
There are currently four structures totaling 14,876 sgft.
They are requesting four structures totaling 16,000 sgft.
Allowed by zoning code are two structures totaling 8,000 sgft.
BOARD OF ADJUSTMENTS
The Board of Adjustments denied the variance request for the reason that the application did not meet all
of the variance criteria set forth in Section 30-635.
The applicant spoke regarding the poor condition of the subject garage, financial hardships, their
daughter's mobility issues, and the loss of some property with the County road project.
N:\Depaztments\Community Development\Planning\Case Files\Variance\V 11-01 Hendrickx\V 11-01_CC.doc
A neighbor spoke at the public hearing indicating they had no issue with the request. The Board
discussed past variances that were reviewed in which property sizes were lessened with road projects. It
was clarified that even if they considered the subject property as 20 acres, there is still the issue of the
number of accessory structures allowed, twice what is allowed for all zoning districts. A member stated
that a variance is not the only solution and that the applicant has the ability to meet the requirements to
place a new structure near the home without a variance. It was stated that the applicant, although not
their first desire, also could remove two other accessory structures and rebuilt the new one closer and
larger, regardless of the allowed square footages and lot size.
The Board of Adjustments could not see the hardship for allowing twice the square footage and twice as
many structures than the city ordinance allows for all zoning districts.
APPLICABLE REGULATIONS (ifApproved by the City Council on 8-75-77)
Tlariance Criteria: A variance may be granted by the Council if it finds that:
The proposed variance is in harmony avith the general pur~iose and intent of the ordinance, and
In 2004, the City Council amended the ordinance as it pertained to accessory structure sizes.
At that time, accessory structure sizes on parcels five acres or larger were significantly
increased as shown:
5 acres to 2,~ 4.000 sq. ft. attached and detached
10 acres to 4;599 8.000 sq. ft. attached and detached
20 acres to Er,A99 16,000 sq. ft. attached and detached
40 acres or more ~ Nc~r to ctcer~i ~?°~~ ~~f tJz~ l~~r arCa
The subject property technically falls in the 10-20 acre category where the allowed square
footage was almost doubled in 2004. Prior to 2004, only 4,500 sq. ft. would have been
allowed.
The City Council approved a significant increase to the allowed square footages in 2004 with
the purpose and intent of that amendment to allow 1.75% lot coverage per the lowest acreage
of each category on lots 5-acres or larger.
Staff does not feel that the proposed variance is in harmony with the general purpose and
intent of that ordinance as the proposal is double the size (16,000 sq. ft. or 3.6% lot coverage)
of what was approved in 2004 and has twice as many structures (four) as is currently allowed.
2. The proposed variance is consistent avith the City of Elk Giver comprehensive plan.
The variance is consistent with the Comprehensive Plan. The Rural Residential category shows
the pattern of residential development outside of the Urban Service Area. Housing in these
areas consists of single-family detached housing units. The area consists of a combination of
farmsteads, large lot rural subdivisions, and cluster subdivisions.
N:\Departments\Community Development\Planning\Case Files\Variance\V 11-O1 Hendrickx\V 11-01_CC.doc
3. The petitioner proposes to use the property in a reasonable manner not permitted by the honing ordinance.
The petitioner is proposing doubling the size of an already non-conforming structure and also
maintaining twice as many allowed accessory structures.
4. The plight of the petitioner is due to circumstances unique to the property not a consequence of the petitioner's
o~vn action or inaction.
The petitioner has offered no factors indicating uniqueness of the property supporting the
variance. The petitioner bought the property with the existing structures, quantity and square
footages, as they are. It is unknown what the condition of the subject structure was in 1994
when the applicant purchased the property. The subject structure could have been
maintained. It appears that through inaction on part of the petitioner, the use of the garage
has been lost.
S. The variance, ifgranted, zvill not alter the essential character of the locality.
The character of the locality will not be altered if the variance is granted.
If the City Council does not approve the ordinance amendment (OA 11-03) they can do one of
the following:
1. Review the variance request with the current regulations.
2. Postpone action until the ordinance is amended.
APPLICABLE REGULATIONS (If Council makes no changes to the variance criteria
Below are the current regulations for review of the request if the ordinance amendment was not
approved.
Based on a Supreme Court action in 2010, if a property can be used in a reasonable manner, a variance
should not be granted. The property has a reasonable use with the construction and occupancy of a
dwelling unit.
Variance Criteria
7. Literal enforcement of the ordinance avill cause undue hardship.
Literal enforcement will not cause undue hardship as the applicant has more accessory structures
than allowed by ordinance, even if the proposed building were removed.
2. The hardshib is caused b~si~ecial conditions and circumstances, avhich are beculiar to the broperty and the structure
involved and avhich are not characteristic o~ or a~blicable to, other lands or structure in the same area.
There are no special conditions and circumstances that are peculiar to the property.
3. The st~ecial conditions and circumstances are not a consequence of the t~etitioner's oavn action or inaction.
N:\Departments\Comxnunity Development\Planning\Case Files\Variance\V 11-01 Hendrickx\V 11-01_CC.doc
There are no special conditions and circumstances to the property.
4. The literal application o~the provisions of this ordinance would deprive the~etitioner o~rights enzoyed b other ro~erties
in the same district under the terms of this ordinance.
The petitioner would not be deprived any rights, as they have existing accessory structures.
5. The variance avill not be incurious to or adversel~a, fect the health, sa~~ or sve~are o~the residents of the cit oy r the
neighborhood where the properly is located and will be in keeling with spirit and intent o~the ordinance.
The variance will not be injurious to or adversely affect the health, safety or welfare of the residents
of the city.
Based on the Supreme Court action, the requested variance should be denied.
ATTACHMENTS
^ Location Map
^ Applicants Narrative
^ Aerial of Property
^ Pictures of Existing Garage
Action Motion by Second by Vote
Follow Up
N:\Departments\Community Development\Planning\Case Files\Variance\V 11-O1 Hendrickx\V 11-01_CC.doc
Supplemental Memo to Items 5.1. & 5.2.
1{1 ~'~_L MEMORANDUM
ver
TO: City Council
FROM: Jeremy Barnhart
DATE: August 15, 2011
SUBJECT: Variance Ordinance and Hendricloc Application -Items 5.1. &
5.2.
The Council's review of the draft variance ordinance (5.1 on the agenda) and the appeal of
the Hendricks variance (5.2) requires some clarification.
Because the City Council had not amended the Ordinance, the Boatrd of Appeals on August
9 reviewed the Hendrickx variance based on the existing standards outlined in Section 30-
635. The Board denied the application because they felt it did not meet all the variance
criteria.
It is expected that the City Council will approve the variance ordinance amendment (5.1).
If this occurs, the Council should either review the variance based on the new criteria, or
remand the decision back to the Board of Appeals to allow them to review it based on the
new ordinance.
If the Council does not approve the variance ordinance amendment, the Council should
review the Hendrickx variance based on section 30-635 (found on page three of the staff
memo.)
N:\Public Bodies\Ciry Council\Council RCA.\Agenda Packet\08-15-2011\JB Variance cocer.docx
REQUEST FOR ACTION ~ '~~ ls~
TO ITEM NUMBER
Board of Ad~ustments ~
AGENDA SECTION MEETING DATE PREPARED BY
Board of Ad~ustments Au ust 9, 2011 Chris Leeseber ,Park Planner-Planner
ITEM DESCRIPTION REVIEWED By
Consider Request by Jerome and Jean Hendricl~, 21144 Twin jerem Barnhart, Plannin Mana er
Lakes Road for Variance -Accessory Structure Regulations, REVIEWED BY
Public Hearing -Case No. V 11-01
ACTION REQUESTED
Staff recommends that the Board of Adjustments deny the variance request, as illustrated on the drawings
dated 7/5/11, for the following reason:
1. The application does not meet all of the variance criteria set forth in Section 30-635
This item, if denied, will be reviewed by the City Council on August 15, 2011. That night, the Council
will be considering an amendment to the Ordinance as it pertains to variances. If that amendment is
approved, this application will be reviewed by the Council on those new variance criteria..
BACKGROUND/DISCUSSION
The applicant purchased the property in 1994 with the four accessory structures. The existing garage
(nearest the house) is in a condition that is not suited for repair. The applicant has a daughter with
limited mobility and since that garage is the closest one to the house for accessibility; they want to rebuild
the structure at a considerably larger size. Due to distance and garage door types, the other accessory
structures axe not practical for "garage" parking.
The applicant is requesting a variance to the number of allowed accessory structures and to the allowed
square footage.
Per the ordinance, a variance is granted because of uniqueness of the land, not the use. Although staff
understands the reasoning behind the request, the condition of a family member cannot be the lone
support for granting a variance.
OVERVIEW
The subject property is 18.28 acres in size with foux accessory= structures totaling 14,876 square feet.
Existing Garage: 676 sgft (this is the structure they want to replace avith a 46x40 l~uildin~ 1,840 sgft
Structure #1: 3,640 sgft
Structure #2: 5,700 sgft
Structure #3: 4,860 sgft
N:\Departments\Community Development\Planning\Case Files\Variance\V 11-O1 Hendricl~c\V 11-01_BA.doc
The ordinance, for this property, allows only two detached accessory structures not to exceed 8,000
square feet of total attached and detached accessory structures.
There are currently four structures totaling 14,876 sgft.
They are requesting four structures totaling 16,040 sgft.
APPLICABLE REGULATIONS
Based on a Supreme Court action in 2010, if a property can be used in a reasonable manner, a variance
should not be granted. The property has a reasonable use with the construction and occupanc3= of a
dwelling unit
Variance Criteria
7. Literal enforcement of the ordinance will cause undue hardshii~.
Literal enforcement will not cause undue hardship as the applicant has more accessory structures
than allowed by ordinance, even if the proposed building were removed.
2. The hardship is caused b~si~ecial conditions and circumstances which are~eculiar to the~~ erly and the structure
involved and aa~hich are not characteristic o~ or a~~licable to, other lands or structure in the same area.
There are no special conditions and circumstances that are peculiar to the property.
3. The sbecial condition r and circumstances are not a conseauence of the petitioner's oivn action or inaction.
There are no special conditions and circumstances to the property.
4. The literal a~lication of the~ro~risions o~this ordinance avould debrive the~etitioner o~rzghts enZoved by otherr~ierties
in the same district under the terms a~this ordinance.
The petitioner would not be deprived any rights, as they have existing accessory structures.
5. The variance avill not be injurious to or adversel~a~fect the health. sa~et7~ or zve~are of the residents o the city or the
neighborhood where the ~ro~er~is located and avill be in keebing with .r~irit and intent o~the ordinance.
The variance will not be injurious to or adversely affect the health, safety or welfare of the residents
of the city.
Based on the Supreme Court action, the requested variance should be denied.
N:\Departrnents\Communitp Development\planning\Case Files\Variance\V ll-Ol Hendrick\V 11-01_BA.doc
PROPOSED APPLICABLE REGULATIONS (ifApproved by the City Council on 8-75-7 7, this is for reference on~~
Variance Crzteria: A variance may be granted by the board if it finds that:
The proposed variance is in harmony with the general pur~iose and intent of the ordinance, and
In 2004, the City Council amended the ordinance as it pertained to accessory structure sizes.
At that time, accessory structure sizes on parcels five acres or larger were significantly
increased as shown:
5 acres to X589 ~,~ ~~ ii ~ sq. ft. attached and detached
10 acres to 4389 <~ i"ii ii ~ sq. ft. attached and detached
20 acres to Fr,888 1G_C~0(1 sd. ft. attached and detached
40 acres or more ~~ i~~~t cc~ c:~ccec~ ~~~~~~ ~,f nc~ I<>r area
The subject property falls in the 10-20 acre category where the allowed square footage was
almost doubled in 2004.. Prior to 2004, only 4,500 sq. ft. would have been allowed. Staff does
not feel that the proposed variance is in harmony with the general purpose and intent of the
ordinance as the proposal is double the size (16,040 sq. ft.) of what was approved in 2004 and
has twice as many structures (four) as is currently allowed.
2. The proposed variance is consistent with the City of Elk Kiver comprehensive plan.
The variance is consistent with the comprehensive plan. The Rural Residential category shows
the pattern of residential development outside of the Urban Service Area. Housing in these
areas consists of single-family detached housing units. The area consists of a combination of
farmsteads, large lot rural subdivisions and cluster subdivisions.
3. The petitioner proposes to use the propery in a reasonable manner not permitted by the honing ordinance.
The petitioner is proposing doubling the size of an already non-conforming structure and also
maintaining twice as many allowed accessory structures.
4. The plight of the petitioner is due to circumstances unique to the property not a consequence o. f the petitioner's
orvn action or inaction.
The petitioner has offered no factors indicating uniqueness of the property supporting the
variance. The petitioner bought the property with the existing structures, quantity and square
footages, as they are. It is unknown what the condition of the subject structure was in 1994
when the applicant purchased the property. The subject structure could have been
maintained. It appears that through inaction on part of the petitioner, the use of the garage
has been lost.
5. The variance, ifgranted, aarill not alter the essential character of the locality.
The character of the locality will not be altered if the variance is .granted.
N:\Departments\Communitp Development\Planning\Case Files\Variance\V 11-01 Hendrich-~\V 11-01_BA.doc
ATTACHMENTS
^ Location Map
^ Applicants Narrative
^ Aerial of Property
^ Pictures of Existing Garage
ACt1011 T~Zorion by Second by Vote
Follow Up
N:\Departments\Community Development\Planning\Case Files\Variance\V 11-01 Hendncl~\V 11-01_BA.doc
We purchased this property in 1994 from Bertold Martiz
All of the outbuildings were existing buildings.The land
had been zoned Agricultural at the time of purchase.
The garage had been in poor shape when we moved
in,the service door has never worked and the floor in the
garage was in poor shape,as the concrete was crumbling.
The sill has completely ratted around the base of the
garage,due to water that collects because of poor
drainage.
Our Insurance Agent comments every time he has been
here that we should replace the garage as it is in bad
shape and all we are able to insure it for is $5,000
dollars.
In 2008 on Thanksgiving Day, our family was in a tragic
car accident that totaled our vehicle and left our
Daughter Liz with a permanently disabled right knee.
After three knee surgeries,she has limited mobility in the
Right knee.
We need to rebuild this garage to accommodate Liz's
Limited ability to get around with her bad knee.The other
Buildings are not suitable for her to park her car,they are
some distance from the house and when it snows and
gets slippery out we have to worry about her slipping and
falling on the ice and snow.The new garage would be a
welcome addition as the old one is an eyesore and not
Worth trying to repair.We realize that we have all these
Other buildings but these are used for farm machinery
that we collect and they are not practical for using every
Day as they have large sliding doors that are hard to
open and shut.The new garage would also have a space
for Liz to do some physical therapy for her knee as we
have limited space in the house.The new garage will be
Built with the color matching the house and the trim will
also match.lt will be an attractive addition to the property
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