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4.1. BASR 10-27-1998 rkr *� Item# 4.1 Ird of MEMORANDUM lk River TO: Board of Adjustments FROM: Stephen Wensman, Planner IA DATE: October 27, 1998 SUBJECT: Request by Rich and Tammy Schmidt for a Variance, Public Hearing Case No. V 98-11 Request Consider a request by the applicant for a variance from the side yard building setback requirements. Location 11265 192nd Avenue NW, Elk River (lot 23, block 8, Deerfield third Addition). Zoning/Land Use PUD (Planned Unit Development) /MR (Medium Density Residential) � P ) � Attachments • Location map • Site plan • Letter from applicant Overview The applicants are interested in building a deck on the side of their home to utilize an existing sliding glass door. On August 10th the applicant claims that they approached the City to find out the zoning requirements for building the deck and were told by a "woman" that the side yard setback was 5 feet. The PUD Agreement for Deerfield third Addition references setbacks in the Rlc district. The applicant went ahead and hired a surveyor and a contractor to design the deck. At the time of application for a building permit, the applicants were correctly informed by planning staff that the side yard setback was 10 feet. On March 18,1996, the side yard setback in the Rlc changed to 10 feet from five feet. With a ten foot setback, the deck can only IDbe 7 feet deep which is unacceptable to the applicants. The applicants believe 13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • TDD&Phone: (612)441-7420 • Fax: (612)441-7425 Memo to Board of Adjustments/V 98-11 October 27, 1998 Page 2 • that the house, built in 1986, was designed to accommodate a deck larger than 7 feet deep off the sliding glass door. They feel that the misinformation led them to spend money they would never have spent had they known they could only build a 7 foot deep deck. The surrounding neighbors support the proposed deck and a variance from the side yard setback. Variance Staff refers the Board of Adjustments to Section 900.40 of the City of Elk River Code of Ordinances for the five standards to consider when reviewing a variance. A variance may be granted only if it meets the following five conditions: 1. Literal enforcement of the ordinance will cause undue hardship. 2. The hardship is caused by special conditions and circumstances which are peculiar to the property and the structure involved and which are not characteristic of, or applicable to, other lands or structure in the same area. • 3. The literal application of the provisions of this ordinance would deprive the petitioner of rights enjoyed by other properties in the same district under the terms of this ordinance. 4. The special conditions and circumstances are not a consequence of the petitioner's own action or inaction. 5. The variance will not be injurious to or adversely affect the health, safety or welfare of the residents of the City or the neighborhood where the property is located and will in keeping with spirit and intent of the ordinance. The applicant believes they should be granted a variance, however, staff finds the applicants can not meet the five criteria for hardship as follows: 1. Literal enforcement of the ordinance will not cause undue hardship because the applicants wishes for a larger deck doesn't constitute a hardship. A deck can still be built. Furthermore, the sliding door is only a few feet off the ground and the applicant could build steps off the sliding door to a patio rather than a deck and not have to worry about setbacks. A ground level patio might offer more privacy as well. Staff cannot account • \\elkriver\sys\shrdoc\planning\stevewen\pcmmo\v98-11.doc Memo to Board of Adjustments/V 98-11 October 27, 1998 Page 3 • misinformation given as it is undocumented. Financial hardship in this case does not constitute a hardship. 2. The hardship is not caused by special conditions and circumstances which are peculiar to the property and the structure involved and which are not characteristic of, or applicable to, other lands or structure in the same area. Other properties in the area have the same setbacks and similar house plans. The applicants can build a deck or a patio, just not to their designs. 3. The literal application of the provisions of this ordinance would not deprive the petitioner of rights enjoyed by other properties in the same district under the terms of this ordinance. Other property owners have to adhere to the new setbacks and make adjustments to plans to accommodate them. The setbacks were public information when they purchased their home. 4. The special conditions and circumstances are not a consequence of the petitioner's own action or inaction. Again, the setbacks were public information at the time the petitioners bought their home. They are still able to utilize the sliding door with a deck or patio. • 5. The variance will not be injurious to or adversely affect the health, safety or welfare of the residents of the City or the neighborhood where the property is located and will in keeping with spirit and intent of the ordinance. The neighbors support the variance however, it may become a precedent for variances of a similar nature in the area. Recommendation Staff recommends that the Board of Adjustments deny this request for a variance from the side yard setback requirements based on four of the five criteria for granting a variance. \\elkriver\sys\shrdoc\planning\stevewen\pcmmo\v98-11.doc M Y y"IMP?ION VD&! et% �� a���� • °"`° E a nip 7, 4.4 .11111111111F0i1. 7L,,moawrg. 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