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5.9 PCSR 09-26-1995 ITEM 5.9. of MEMORANDUM Elk • River TO: Planning Commission FROM: Gary Schmitz, Planning Assistant DATE: September 26, 1995 SUBJECT: Variance Request by Dennis Backus, Public Hearing, Case No. V 95-10 Request Dennis Backus is requesting a 20 foot shoreland setback variance from an unnamed tributary and a five foot front yard setback from 192-1/2 Lane. Location Lots 3 and 4, Block 2, Meadowvale Heights Second Addition Zoning/Land Use • Ric - Single Family Residential MR - Medium Density Residential Attachments • Location Map • Zoning Map • Site Plan • Letters from Applicant • 1993 Letter from the DNR Background Dennis Backus, developer of Meadowvale Heights subdivision, is requesting a 20 foot shoreland setback variance from an unnamed tributary and a five foot front yard setback variance from 192-1/2 Lane in order to construct homes on Lots 3 and 4, Block 2, Meadowvale Heights Second Addition. The required setback from the unnamed tributary is 50 feet from the ordinary high water mark. The required front yard setback is 30 feet from the front property line. The variance request is the end result of confusion between • the developer/city/county/DNR concerning the jurisdiction of a small stream/ditch which bisects the Meadowvale Heights Second Addition. Lots 3 13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • (612) 441-7420 • Fax: (612) 441-7425 Backus - V 95-10 Page 2 September 26, 1995 • and 4, Block 2, Meadowvale Heights Second Addition are unbuildable lots at this time due to the fact that a home cannot be placed on either parcel and meet all the structure and DNR shoreland setbacks. History Meadowvale Heights subdivision was platted in 1993 into 108 lots. The subdivision was completed in two phases - First and Second Addition. A small unnamed stream/ditch flows through Meadowvale Heights Second Addition. The stream/ditch is a DNR protected tributary stream which mandates a 50 foot structure setback from the ordinary high water mark. The stream is also classified as a county ditch, therefore, jurisdiction would fall under both the county and DNR concerning improvements on this waterway. When Meadowvale Heights was platted in 1993, there was confusion between the developer/city/county and DNR concerning the jurisdiction of this stream/ditch. The confusion started when the developer proposed to cross the unnamed tributary in order to construct 192-1/2 Lane to Meadowvale Road. The developer received permission from the city, county, DNR, and Army Corps of Engineers for the crossing. The DNR wrote a letter • to the city concerning the stream/ditch crossing dated March 30, 1993, indicating the ditch filling did not need a permit because the stream drains less than five square miles. Both the city and developer wrongly construed that the DNR would not have jurisdiction over the stream/ditch in the future because it drains less than five square miles. The road crossing was constructed and is currently in place over the stream/ditch. In conjunction with the ditch crossing the applicant was also proposing to relocate the stream/ditch through the southern portion of the plat in order to create additional buildable lots in Meadowvale Heights Second Addition. In 1995, the developer worked with the county and city to relocate the stream/ditch approximately 35 feet to the southern portion of Lots 3 and 4, Block 2, Meadowvale Heights Second Addition in order to make the lots more buildable. The developer did not realize that the stream/ditch relocation needed DNR authorization because of the DNR's previous letter. When the city received the plans for the ditch relocation, they were forwarded to the DNR for review. Meadowvale Heights Second Addition received final plat approval on March 20, 1995. On the final plat the developer showed the ditch already being located to the southern end of Lots 3 and 4, Block 2, Meadowvale Heights Second Addition, when in fact, the relocation was not yet approved. When the city reviewed the final plat for Meadowvale Heights Second Addition, it was assumed the ditch was shown • in its current location. However, the issue resurfaced recently as the DNR reviewed the application for the stream/ditch relocation. The DNR was not Backus - V 95-10 Page 3 September 26, 1995 • in favor of relocating the stream/ditch to the south because it would involve the removal of a stand of oak trees and also the excavation of a small hill which would likely lead to an erosion problem in the future. The DNR stressed that another option be considered such as a variance which would be more environmentally sound and leave the stream/ditch intact. Without moving the stream/ditch, Lots 3 and 4, Block 2, Meadowvale Heights Second Addition are unbuildable without setback variances. The attached letter dated August 29, 1995, from the applicant's engineer Jeff Shopek also explains the history of this issue. Variance The attached site plan indicates housing pads on Lots 3 and 4, Block 2, Meadowvale Heights Second Addition. The housing pads measure approximately 40 feet in width and could accommodate a typical home built in this subdivision. The applicant is proposing that the homes be located 30 feet from the stream and 25 feet from the front property line which would necessitate a 20 foot stream setback variance and a five foot front yard setback variance. Both Lots 3 and 4 are somewhat isolated and are buffered on either side by wetlands to the east and west of the respective parcels. The • applicant is proposing a five foot front yard variance from 192 -1/2 Lane to try and provide as much of a buffer as possible from the rear of the home to the stream/ditch. Again, without the variance, both parcels would be considered unbuildable. DNR Review The application was sent to Dan Lais, DNR area hydrologist for review. Due to the fact of the confusion over the jurisdiction of the subject stream and the fact that the variance is a better environmental alternative to relocating the stream/ditch, the DNR did not have a problem with the variance as proposed. Variance Requirements Staff refers the Planning Commission to Section 900.40 of the City of Elk River Code of Ordinances for the five standards to consider when reviewing a variance. Staff also refers the Planning Commission to the applicant's letter addressing the five standards. Staff feels that there are adequate findings to grant the variance from the stream and front property line. • Literal enforcement of the ordinance would cause undue hardship by creating a situation where legal lots of record would be unbuildable. • • A stream setback variance and minor front yard setback variance are a more environmentally sound alternative to the other option of relocating Backus - V 95-10 Page 4 September 26, 1995 II the stream/ditch. Relocation of the stream would require the removal of a stand of oak trees which provides a buffer between the subdivision and railroad tracks. The relocation of the stream/ditch would also involve the excavation of a small hill that would likely lead to an erosion problem in the future. • The variance was caused by a unique circumstance stemming from confusion between the developer, city, county and DNR regarding jurisdiction of the stream/ditch when Meadowvale Heights was platted in 1993. It would now be very difficult to try and remedy this situation due to the fact that the infrastructure related to the subdivision is already in place (i.e. streets, sewer and water lines, etc.) • The variance would not be injurious to or adversely affect the health, safety, or welfare of the residents of the city or the neighborhood wherein the property is situated. Both Lots 3 and 4, Block 2, Meadowvale Heights Second Addition are buffered on both the east and west side by a wetland. Due to the distance between the adjacent homes within the plat - approximately 150 feet - the setback variances will blend with adjoining neighbors and not be out of character for the particular area. Recommendation • Staff recommends approval of the 20 foot shoreline setback variance from an unnamed tributary and a five foot front yard setback variance from 192-1/2 Lane based on the following findings. 1. Literal enforcement of the ordinance would cause undue hardship by creating a situation where legal lots of record would be unbuildable. 2. A stream setback variance and minor front yard setback variance are a more environmentally sound alternative to the other option of relocating the stream/ditch. Relocation of the stream would require the removal of a stand of oak trees which provides a buffer between the subdivision and railroad tracks. The relocation of the stream/ditch would also involve the excavation of a small hill that would likely lead to an erosion problem in the future. 3. The variance was caused by a unique circumstance stemming from confusion between the developer, city, county and DNR regarding jurisdiction of the stream/ditch when Meadowvale Heights was platted in 1993. It would now be very difficult to try and remedy this situation due to the fact that the infrastructure related to the subdivision is already in place (i.e. streets, sewer and water lines, etc.) • 4. The variance would not be injurious to or adversely affect the health, safety, or welfare of the residents of the city or the neighborhood wherein Backus - V 95-10 Page 5 September 26, 1995 III the property is situated. Both Lots 3 and 4, Block 2, Meadowvale Heights Second Addition are buffered on both the east and west side by a wetland. Due to the distance between the adjacent homes within the plat - approximately 150 feet - the setback variances will blend with adjoining neighbors and not be out of character for the particular area. pc:v95-10 • • • � • 8 -- - J J ../ v.vv ------- -'--'-'6 -. ..(41,1, 0.00 L — _ S82°13'40nE 0.00 — — — 0 138.65 - - L /2 Po 0.00 — , LANE 21.04 0 //6.5//6. b� 101.89 � S25°25'14..w S \ / �- — _ '•' 68.87 -- - -- - - -�" -0 —195.'52-_ 2 — 0.00 -- �� (-' — —2 157.2 6 v- co \ I cn o � / 3101 I,, / / 0.00 135.06 v / p I �6' EDGE OF �, // 3. _� II S/6s / WETLAND - ��� / 13•' 0 ��, / PNo , NI 1 ° I\G SME884.20 / ° 11 •I A`b°,�� / \ �� 0R P\ �( E P • 00 2=fi' •AK EkISTUy 1 1 3:r 'AD •I v-\\- \ X /d 2/I8 OAK �' DITCh r, J 3i /��` 885. /� NO / 2 ,. 95 - - DJC• 4- 2 ' 4'OAK rDJ,1�•b. ,. Dj� �� �I De l:y'. : '0 AG ir Ito e, '� - -- --- " ---/ ' S8. 44 S�� �� I-8"POPLAR r 302.01 3-10"POPE,R 3-4"OAK 3-10"0AK 3-6"POPLAR I-14"OAK / 10-8"POPLAR / SOUTH LINE OUTLOT C, MEADOWVALE HEIGHTS — — 1 " = 40 ' PLANNERS J YUCICS SNRINEERS SURVEYORS A DESIGNERS CY socia S, ARCHEOLOGISTS • August 29, 1995 Mr. Steven Ach City of Elk River 13065 Orono Parkway Elk River,Minnesota 55330 Re: Meadowvale Heights Second Addition Request for Variance setback on Lots 4 and 5,Block 2,Elk River,Minnesota Loucks Project No. 93-101B Dear Mr. Ach: On behalf of the developer, Mr. Dennis Backes, we are requesting a variance to the front yard and rear yard setback for Lots 4 and 5, Block 2, in Meadowvale Heights Second Addition. The requested variance is for the following: • 1. Front yard setback of 25 feet(5 foot variance) 2. Setback from ditch 30 feet (20 foot variance) The purpose of the variance is to allow construction of homes on these two lots with an approximate 40 foot house pad without relocation of the existing ditch,see attached drawing. During Phase I, we obtained permission from the City, County, DNR and Army Corps of Engineers to fill the ditch and install a culvert in order to build the roadway (192 1/2 Street) to Meadowvale Road. In addition, we met with the County Engineer and the County Ditch Inspector to design the final ditch relocation. At that time, the County required this ditch segment be incorporated into the County ditch system by placing easements over the ditch. It was our understanding that the County was the agency to approve the ditch realignment. The DNR wrote a letter to the City of Elk River dated March 30, 1993, indicating that the ditch filling did not need a permit. Because lot sales were not going as anticipated in Phase I, the ditch relocation process was put on hold by the developer. This year when we proceeded with the final plat for Meadowvale Heights Second Addition,we approached the County and City to relocate the ditch. It was also our belief that the DNR would not have jurisdiction over this section of ditch because it had a tributary area under five square miles as stated in their March 30, 1993,letter. Circumstances and approvals are different than what was anticipated in 1993. The County position is that the City is responsible for the ditch. We submitted the plans to the City and they required us to get DNR authorization. The DNR now claims jurisdiction over the ditch and has indicated they will not approve the ditch • relocation. After reviewing the ditch relocation with the City staff and the DNR, it was 7200 HEMLOCK LANE, SUITE 300, MAPLE GROVE, MINNESOTA 55369-5592 TEL: (612) 424-5505 FAX: (612) 424-5822 Mr.Steve Ach August 29, 1995 City of Elk River Page 2 • recommended not to realign the ditch but select a more environmentally sound solution and request a variance to the front setback and ditch setback. The variance will accomplish two major objectives of the DNR and the City. 1. The existing oak trees between the ditch and railroad would remain. 2. The erosion potential created by the ditch relocation would not occur. We believe we meet the City's criteria for a variance, due to the unique circumstances of these two lots. They are as follows: 1. The literal enforcement of the ordinance would cause undue hardship on these lots and make them unbuildable or create an environmental hardship due to the ditch relocation. 2. That the hardship was caused by special conditions of jurisdictional changes in the ditch approvals and circumstances which are peculiar to the land such as the railroad, ditch, wetlands and gas lines which restrict the buildable area. 3. That the literal application of the provisions of the Ordinance would deprive Mr. Backes the right to build on these two lots of record. 4. The special conditions and circumstances are not a consequence of Mr. Backes' own action but of the confusion of regulatory branches. 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 wherein the property is situated. These two lots 11111 were platted and intended to be built upon. Due to the distance between the adjacent homes within the plat (approximately 150 feet), the setback variances will blend with the adjoining neighbors. Mr. Backes is in agreement with the DNR and City staff recommendation that the ditch not be relocated and the variances be granted by the City. Please contact myself or Mr. Backes if you have any questions. Sincerely, LOUCK &ASSOCIATES,INC. 7-7 "2/41/ Je rey A. Shope ,P.E. Principal Engineer \93101b\corresp\vamce.doc Encs. DNR letter dated March 30, 1993 City application for variance request Site Plan showing setback request cc: Dennis Backes • MJF ELK F' I VER �,� M,;;� a i9V. STATE OF DEPARToEOFNATURALREOURCES iWaters, 3 PHONE NO. 612/255-2984 PiLZ NO. March 30, 1993 City of Elk River Planning Department 720 Dodge Ave NW Elk River, MN 55330 Dear Mr. Schmitz: COPPECT!ON, MEADC`vWALE HE'.GHTS PROPOSED P! AT In my previous letter i had informed you that a permit would be required from the DNA Division of Waters for crossing an unnamed tributary, stream in the Meadawvale Heights plat. This was in error: the stream drains less than 5 square miles, therefore no permit would be required. i'rn sorry for any inconvenience this may have caused you. Please call me at the above phone number if you have any questions: Sincerely, Joseph M. Oschwaid Staff Hydrologist hh IP AN ECUAL CPPCRTUNrrY Ev1Pt OYER