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5.2. BASR 11-28-2017Request for Action To Item Number Board of Adjustments 5.2 Agenda Section Meeting Date Prepared by Public Hearing November 28, 2017 Chris Leeseberg, Senior Planner Item Description Reviewed by Dan Weinmann – 13825 214th Avenue NW Zack Carlton, Planning Manager Amanda Bednar, Environmental Coordinator  Wetland setback variance to construct a deck, Brandon Wisner, Stormwater Coordinator Case No. V 17-09 Reviewed by Action Requested Deny, by motion, the wetland setback variance for the following reasons: 1. The purpose and intent of the ordinance is to reduce the amount of stormwater runoff and pollutants reaching wetlands and stormwater ponds. The purpose and intent of the wetland ordinance is not met with the request. 3. Building a deck into a setback, when an alternative solution is available, is not using the property in a reasonable manner. 4. Even with the adoption of the wetland setback requirements in 2006 and recent ordinance amendments by the City Council, the property can support an equivalent or larger deck, just not in the desired location. There are no unique circumstances to the property. If the Board of Adjustment believes this site is unique and should be exempt from strict application of the ordinance as written, a motion of approval should be made indicating how all five variance criteria have been met. Background/Discussion The applicant is seeking a variance for a deck that has already been constructed to be nine (9) feet into the 25 foot wetland buffer strip. th The property is located at 13825 214 Ave. and is zoned R1a with setbacks as follows: Front: 20’ Side: 10’ Garage: 5’ Rear: 20’ Wetland: 25’ from wetland (adopted 2006) Buffer: 20’ from wetland setback (adopted 2006) Section 30-1852 regulates wetland setbacks as shown in the image below. City ordinance identifies two wetland buffers: a 25 foot no mow/maintenance wetland buffer strip (red), which prohibits structures and an additional 20 foot wetland buffer strip setback (yellow), which allows uncovered decks. The The Elk River Vision A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and community engagement that encourages and inspires prosperity ordinance establishing both of the buffer areas was adopted in 2006, after the subject property (development) was platted. Decks on parcels platted prior to 2006 are allowed to be within the 20 foot wetland buffer strip setback (yellow) but not in the 25 foot wetland buffer strip (red), as proposed. The deck currently extends nine (9) feet into the 25 foot wetland buffer strip (red). It, along with the house, are within the required 20-foot wetland buffer strip setback (yellow). The applicant is asking for a nine (9) foot variance into the 25 foot wetland buffer strip (red). The applicant submitted a building permit for a deck at the subject property and upon city review, was notified that he could not construct the deck in the proposed location. He was informed the building permit could not be issued. Staff was waiting for updated plans. The applicant proceeded to construct the deck without a permit. On October 31, 2017, the city issued a stop work order on the deck construction. The applicant then applied for and is seeking a variance of nine (9) feet into the 25 foot wetland buffer strip for the deck. N:\\Departments\\Community Development\\Planning\\Case Files\\V\\V 17-09 Weinmann\\4-Board of Adjustments\\V 17-09 sr BOA 11-28-17.docx During the City Council Open Forum on November 6, 2017, there was discussion on how the deck was built and what impacts footings have on the wetlands. The manner in which the deck is constructed is of little concern. The primary concern with structures located in either buffer, is the addition of impervious surface increasing the amount of stormwater runoff and pollutants reaching wetlands and retention stormwater ponds. The 25 foot wetland buffer area is the most critical area of the wetland setback and is intended to remain natural to ensure the health and function of the wetland and natural habitat. Even though decks typically provide opportunities for water to flow through the structure, the presence of this structure concentrates water to specific areas, imposes on the natural habitat, and increases runoff into the wetland. Decks often have a patio or landscaping beneath them which is then an additional impervious surface not regulated by permit. Without the requirement for permits for patios and/or landscaping, there is no mechanism to review other non-deck structures in the wetland buffer strip. Additionally, with increasingly frequent heavy rain events, wetlands are receiving larger volumes of water and water elevations tend to rise. By requiring a setback for structures from wetlands, it helps reduce impacts from potential high water events because this area is more prone to being covered by water. The federal government protects flood fringe areas around public rivers and lakes through the regulated 100- year floodplain; similarly, it is important for cities to protect wetland fringe areas. An impervious surface in the wetland fringe areas ultimately displaces increasing precipitation and the potential for high water events to adjacent properties increases. Therefore, the wetland fringe area is the most critical area to protect to ensure impacts are not disproportionally displaced to other properties and to ensure the safety of residents. An equivalent sized or larger deck, although not exactly where the applicant desires, can be constructed on the property adhering to the current required setbacks. The City Council has denied other setback variance requests based on the ability to construct decks in other, maybe less desirable, locations. Having a deck already built is not a valid reason to approve a variance. N:\\Departments\\Community Development\\Planning\\Case Files\\V\\V 17-09 Weinmann\\4-Board of Adjustments\\V 17-09 sr BOA 11-28-17.docx Applicable Regulation (The applicant’s responses are italicized with staff’s notes after.) Variances may be granted when the petitioner establishes that the variance satisfies all five of the criteria described below. The variance is: 1. Is in harmony with the general purpose and intent of the ordinance, and This variance request is in harmony with the general purpose and intent of the ordinance. At the time the house was built, the City approved plans for lots and houses in my neighborhood that were in proximity to wetlands. The developer provided plans showing decks for many of these houses extending out toward the wetlands. The houses were approved by the City and several decks were subsequently built by either the builder or the homeowners. Following construction of the subdivision, the wetland setbacks were changed and the City is now trying to enforce rules that were not in place at the time of house construction and were not contemplated until after the homes were built. Since other homes have these decks and the decks have no impact on either the aesthetics of the neighborhood or on the wetlands, the proposed deck is certainly within the general purpose and intent of the ordinance. The purpose and intent of the ordinance is to reduce the amount of stormwater runoff and pollutants reaching wetlands and retention stormwater ponds. The City Council addressed the issue of properties platted prior to 2006 with an ordinance amendment (OA 16-13) in 2016 allowing uncovered decks in the 20 foot wetland buffer strip setback (yellow). Natural wetlands can fluctuate in size. In times of heavy rainfall or above-average annual precipitation, wetlands and stormwater ponds may grow. There have been cases in Elk River where structures set less than 45 feet from a wetland boundary now see ground saturation up to the structure. This is a concern for the city and residents in terms of flooding, foundation damage, and safety. New home permits for construction rarely show decks on the plans. Neither staff nor home owners can predict future regulations that may be put in place by the city, county, and/or state. New regulations are implemented over time as information and impacts are better understood, and to protect the life safety and welfare of residents in the community. The purpose and intent of the wetland ordinance are not met with the proposed request. A deck meeting the general purpose/intent of the ordinance as well as adhering to the current required setbacks can be constructed on the property. 2. Is consistent with the City of Elk River comprehensive plan. This variance request has no impact on the City of Elk River comprehensive plan and is thus consistent with the plan. This is an existing subdivision with existing homes and existing decks that were built with City knowledge and City approval. N:\\Departments\\Community Development\\Planning\\Case Files\\V\\V 17-09 Weinmann\\4-Board of Adjustments\\V 17-09 sr BOA 11-28-17.docx The subject parcel is guided by the Comprehensive Plan for residential uses and decks. A deck, adhering to the current required setbacks, can be constructed on the property which the Comprehensive Plan guides the property for. Variances may be granted when the petitioner establishes that there are practical difficulties in complying with the zoning ordinance. Practical difficulties means that: 3. The petitioner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; The property will be used in a reasonable manner, consistent with the way other adjacent property owners are using their property. The zoning ordinance used to allow decks. The ordinance was revised and as a result, an unintended consequence was that the ordinance now precludes uses previously allowed, if not encouraged, by both the City and developers within the City. Building a deck on a house is not only a routine occurrence and a common addition to most homes, it was intended to be added to the house which is the subject of this petition. The zoning ordinance allows the property to be used as residential with a deck. The property can support a deck, just not exactly where the applicant desires. An equivalent to or larger deck may be built on this property meeting all required setbacks. Building a deck into a setback when an alternative solution is available is not using the property in a reasonable manner. The adjacent properties have decks that appear to meet the current 25’ setback requirement. 4. The plight of the petitioner is due to circumstances unique to the property not a consequence of the petition's own action or inaction; and The plight of the petitioner is due to changes in City wetlands setbacks after my house was approved by the City and built by the developer and after I bought the house with knowledge that a deck was an acceptable use. The plight was caused solely by the changes brought about by the City. Even with the adoption of the wetland setback requirements in 2006 and recent ordinance amendments in 2016 by the City Council, the property can support a deck, just not exactly where the applicant desires. There are no unique circumstances to the property. 5. The variance, if granted, will not alter the essential character of the locality. If this variance is granted, it will not alter the essential character of the locality. In fact, if this variance is not granted, it will have a negative impact on the character of the locality. This home, along with several others, was designed and built to have a deck. Failure to build the deck is an affront aesthetically to the house and the neighborhood. The house looks out of place without the deck. This can be seen in the pictures submitted with the application. The aesthetics of the locality improves if a deck is built as intended when the City approved the development. The variance, if granted, will not alter the essential character of the locality. N:\\Departments\\Community Development\\Planning\\Case Files\\V\\V 17-09 Weinmann\\4-Board of Adjustments\\V 17-09 sr BOA 11-28-17.docx Financial Impact None Council Meeting If denied, or an appeal is made by any interested party by December 8, 2017, this item will be heard at the December, 18, 2017, City Council meeting. Attachments  Location Map  Applicants Narrative  Site Photos  Current Deck Site Plan  Alternate Deck Location Exhibit N:\\Departments\\Community Development\\Planning\\Case Files\\V\\V 17-09 Weinmann\\4-Board of Adjustments\\V 17-09 sr BOA 11-28-17.docx Variance application narrative: Daniel & Jennifer Weinmann 13825 214th Ave NW Elk River, MN 55330 Parcel ID# 75-694-0314 7-33-26 Lot 7 Block 3 Windsor Park Third Addition I am applying for a variance due to a denial of a permit to build a deck on our house. The reason given for the denial was due to the deck being in the wetland setback. I am seeking a 9' variance for the proposed deck. My answers to the questions contained i n the Variance or Appeal of Zoning Decision application are listed below. 1) The variance is in harmony with the general purpose and intent of the ordinance. This variance request is in harmony with the general purpose and intent of the ordinance. At the time the house was built, the City approved plans for lots and houses in my neighborhood that were in proximity to wetlands. The developer provided plans showing decks for many of these houses extending out toward the wetlands. The houses were approved by the City and several decks were subsequently built by either the builder or the homeowners. Following construction of the subdivision, the wetland setbacks were changed and the City is now trying to enforce rules that were not in place at the time of house construction and were not contemplated until after the homes were built. Since other homes have these decks and the decks have no impact on either the aesthetics of the neighborhood or on the wetlands, the proposed deck is certainly within the general purpose and intent of the ordinance. 2) The variance is consistent with the City of Elk River comprehensive plan. This variance request has no impact on the City of Elk River comprehensive plan and is thus consistent with the plan. This is an existing subdivision with existing homes and existing decks that were built with City knowledge and City approval. 3) The petitioner proposed to use the property in a reasonable manner not permitted by the zoning ordinance. The property will be used in a reasonable manner, consistent with the way other adjacent property owners are using their property. The zoning ordinance used to allow decks. The ordinance was revised and as a result, an unintended consequence was that the ordinance now precludes uses previously allowed, if not encouraged, by both the City and developers within the City. Building a deck on a house is not only a routine occurrence and a common addition to most homes, it was intended to be added to the house which is the subject of this petition. 4) The plight of the petitioner is due to circumstances unique to the property not a consequence of the petitioner’s own action or inaction. The plight of the petitioner is due to changes in City wetlands setbacks after my house was approved by the City and built by the developer and after I bought the house with knowledge that a deck was an acceptable use. The plight was caused solely by the changes brought about by the City. 5) The variance, if granted, will not alter the essential character of the lo cality. If this variance is granted, it will not alter the essential character of the locality. In fact, if this variance is not granted, it will have a negative impact on the character of the locality. This home, along with several others, was designed and built to have a deck. Failure to build the deck is an affront aesthetically to the house and the neighborhood. The house looks out of place without the deck. This can be seen in the pictures submitted with the application. The aesthetics of the lo cality improves if a deck is built as intended when the City approved the development.