7.5. SR 12-18-2017 EOty1� ,.,�� Request for Action
River
To Item Number
Mayor and City Council 7.5
Agenda Section Meeting Date Prepared by
Public Hearin s December 18, 2017 Chris Leeseber , Senior Planner
Item Description Reviewed by
Variance: Wetland Setback to Construct Deck,Dan Zack Carlton,Planning Manager
Weinmann, 13825 214th Avenue Reviewed by
Action Requested
Direct staff,by motion, to prepare a finding of fact denying the wetland setback variance based on the
following findings:
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 a viable alternative 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 in 2016, the property can support an equivalent or larger deck,
just not in the desired location. There are no unique circumstances to the property.
In order to approve the variance all five of the variance criteria must be satisfied and a motion of
approval must state all criteria are satisfied.
Background/Discussion
The property is located at 13825 2141h Ave. The applicant is seeking a variance to encroach nine (9) feet
into the 25-foot wetland buffer strip for a deck that has been constructed prior to issuance of a building
permit.
Applicable Regulations
The Applicable Regulations for a variance can be reviewed on the attached Board of Adjustments
(Board) staff report dated November 28, 2017.
The ordinance requiring the deck setback, section 30-1852 (a), state:
(a) Vetland buffer strzp. A minimum 25-foot buffer strip from the delineated boundary of a
wetland or ordinary highwater level of a stormwater pond is hereby established. Wetland
buffer strips shall meet the following standards:
i. No piinnple or accessory structures,patios,paving or other impervious surfaces shall be permitted zvithin
the zvetland buffer strip.
The Elk River Vision
A zvehoMing community Pith revolutionary and spirited resourcefulness, exceptional POWERED By
service, and community engagement that encourages and inspires prosperity INAWRE1
Board of Adjustments Meeting
The Board reviewed this request on November 28, 2017, and unanimously denied the variance request.
A variance denied by the Board is automatically appealed to the City Council for a final decision.
The Board denied the variance based on the position that the following three of the required five criteria
are not met.
1. The property owner has the ability to construct a useable deck on the property,while adhering to
the current required setbacks, thus eliminating the need for a variance. They noted other
variances have been denied by the City Council based on the ability to move the deck and comply
with the setbacks.
2. There are no unique circumstances to the property. 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 useable deck.
3. The intent and purpose of the ordinance to protect existing wetlands is not met as a deck can be
constructed while maintaining the required wetland setbacks.
In the public hearing, the applicant stated his septic system is located in the setback (installed pre-2006).
In 2010, environmental staff performed an informal site visit of the properties surrounding the wetland
and noted potential wetland encroachment issues. The latest approved wetland delineation for Windsor
Park Third Addition indicates the deck encroaches into the 25 foot wetland buffer.
The applicant also felt a deck on the side of the house would not be aesthetically pleasing and would
decrease the value of the property.
The applicant's neighbor also believed a deck on the side of the subject house would encroach on his
property. The side deck shown during the Board of Adjustment meeting show compliance with all side-
yard setbacks and would not encroach.
The applicant asked that he be grandfathered into the pre 2006 rules. Staff provided the following
example to the Board: An addition or remodel work done on a house built in 1997 would be required to
comply with today's building, electrical, and plumbing regulations, not follow previous regulations.
Financial Impact
None
Attachments
■ November 28, 2017, Board of Adjustments Staff Report
N:APublic Bodies\Agenda Packets\12-18-2017\Done\7.5 sr.docx
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional
service, and community engagement that encourages and inspires prosperity
Request for Action
To
Board of Adjustments
Item Number
5.2
Agenda Section
Public Hearing
Meeting Date
November 28, 2017
Prepared by
Chris Leeseberg, Senior Planner
Item Description
Dan Weinmann – 13825 214th Avenue NW
Wetland setback variance to construct a deck,
Case No. V 17-09
Reviewed by
Zack Carlton, Planning Manager
Amanda Bednar, Environmental Coordinator
Brandon Wisner, Stormwater Coordinator
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.
The property is located at 13825 214th 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
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
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
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 in 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 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.
•
Variance
Weinmann
City of
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ariance Case No 17-09 bier
•
Background
;' *� BOA unanimously denied the request on 11 -28-17
Automatic appeal
*Q The applicant is seeking a nine (9) foot structure variance
into the 25 foot wetland buffer strip
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Section 30-185
�'" No principle or accessory structures, patios, paving, or
other imPe
rvious surfaces shall be permitted within the
wetland buffer strip
•
�. Isnh��� onwith theene�� l �y � pose and intent of the ordinance,
and
-* ,, . . .is to reduce the amount of stormwater runoff and
pollutants reaching wetlands and retention ponds
`r _, Actions on this property could impact other
properties surrounding the wetland and vise versa
a 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
**4 The purpose and intent of the wetland ordinance
are not met with the proposed request
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3. The petitionerprot)oses to use the prot)egy in a reasonable manner
not permitted by the honing ordinance;
"�* The zoning ordinance allows the property to be
used as residential with a deck
;4,0` The property can support a deck, just not exactly
where the applicant desires
�0' An equivalent deck may be built on this property
meeting all required setbacks
-
a Building a deck into a setback when an alternative
solution is available is not using the property in a
reasonable manner
v
•
4. The_pli f t of the�etitione� is due to circumstances unique to the
_p-rot)egy not a consequence of the_petition 's own action or inaction; and
Even with the City Council adoption of the wetland
setback requirements in 2006 and the recent OA in
2016 (addressing decks on property platted prior to
2006)
The property can support a deck while meeting
required setbacks
There are no unique circumstances to the property
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Public Hearing - Applicant
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Sep tic System in setback (pre 2006)
2010 informal site visit by s to ff encroachment issues
Approved delineation — deck in 25 fo o t setback
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Feels a side deck is not aesthetically pleasing & decreases
property value
- »Q Asked to be grandfathered in
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Public Hearing - Neighbor
Deck on side of house would encroach on his property
Exhibit shown at BOA meets required side yard setbacks
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Board of Adjustments
;"," Three of the five criteria not met:
1 . The property owner has the ability to construct a
useable deck on the property, while adhering to the
current required setbacks, thus eliminating the need for a
variance. They noted other variances have been denied
by the City Council based on the ability to move the
deck and comply with the setbacks.
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Board of Adjustments
2. There are no unique circumstances to the property.
Even with the 2006 and 2016 regulations, the property
can support a useable deck.
3. The intent and purpose of the ordinance to protect
existing wetlands is not met as a deck can be constructed
while maintaining the required wetland setbacks.
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Action Requested
;"- Direct staff, by motion, to prepare a finding of fact
denying the wetland setback variance based on the
findings
' Drainage and
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, Utility Easement
- - Wetland Line Shown on Plat
2T Wetland Setback
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Current Deck Built Here
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