4.1. BASR 04-24-2018
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
4.1
Agenda Section
Public Hearings
Meeting Date
April 24, 2018
Prepared by
Zack Carlton, Planning Manager
Item Description
Jessica Allen – 17815 Concord Ct. NW
Appeal of Zoning Decision, Case No. V 18-02
Reviewed by
Amanda Bednar, Environmental Coordinator
Reviewed by
Peter Beck, City Attorney
Action Requested
Deny, by resolution, the appeal from Jessica Allen stating the city erred in determining that an in-ground
swimming pool at 17815 Concord Ct NW must comply with the 100 foot setback required by Section 30-
2132 of the City of Elk River Zoning Code.
Background/Discussion
On February 2, 2018, the city received a call from Jessica Allen, property owner at 17815 Concord Ct.
NW, regarding construction of an in-ground swimming pool on their property. Amanda Bednar,
Environmental Coordinator, spoke with Ms. Allen on the phone and informed her that her property was
located in the Wild and Scenic River Zoning District (W & S District) which, per Sec. 30-2132, requires
all structures to be setback a distance of 100 feet from the ordinary high water level (OHW) of the
Mississippi River. Staff determined that an in-ground swimming pool could not be placed in the desired
location as it does not meet the required 100 foot setback.
Ms. Allen contests that the required 100 foot setback does not apply to in-ground swimming pools as
they are not a structure, and the setback only applies to structures. The city and Ms. Allen exchanged a
number of emails and phone calls regarding the application of the 100 foot setback, and on March 26,
2018, she appealed the city’s decision to the Board of Adjustments.
The appeal is based on two key questions, which the Board of Adjustments must answer:
1. Is an in-ground swimming pool considered a structure as defined within the parameters of the
City of Elk River Zoning Ordinance?
2. Does Sec. 30-2132 (Placement, design and height of structures) of the City of Elk River Zoning
Ordinance apply to all structures within the W&S District, inclusive of an in-ground swimming
pool?
Analysis
Is an in-ground swimming pool a structure?
Structure is defined in Sec. 30-1 of the city code as: Structure, unless otherwise defined in another division
(for example, floodplain management) as used in article VI of this chapter, means anything constructed
or erected, the use of which requires more or less permanent location on the ground or attachment to
N:\Departments\Community Development\Planning\Case Files\V\V 18-03 Allen\4-Planning Commission\SR Allen Appeal.docx
something having a permanent location on the ground. When a structure is divided into separate parts
by an unpierced wall, each part shall be deemed a separate structure.
The city ordinance also adopts by reference the 2015 Minnesota Building Code, which defines a
structure as: Structure. That which is built or constructed.
The Minnesota Building Code further defines Swimming pool as: Swimming Pool. Any structure intended
for swimming, recreational bathing or wading that contains water over 24 inches (610 mm) deep. This
includes in-ground, above ground and on-ground pools; hot tubs; spas and fixed-in-place wading pools.
In-ground swimming pools are constructed in place having poured or constructed walls below grade to
retain the surrounding soils. In-ground swimming pools are also connected to pipes which are used for
heating and filtering the pool water. These pipes are below grade and connected to equipment placed on
the ground near the pool. In reading the definition of structure within city code, an in-ground swimming
pool is permanently located on the ground and attached the pool equipment, which is permanently
located on the ground.
The definition of swimming pool used by the Minnesota Building Code clearly states that an in-ground
swimming pool is a structure.
Additionally, city ordinances define private recreational facilities as a permitted accessory use within the R-1
residential zoning districts. These are described as: Private recreational facility means a building, structure or
open space designed as an accessory recreational use to a permitted principal use. Private recreational
facilities include such uses as swimming pools and tennis courts and are not open to the general public
and not operated for profit.
Based on the definition of private recreational facilities an in-ground swimming pool (structure) is a permitted
accessory use as it is subordinate to and serving the principal use of the property – single-family
residential.
Based on the definitions described by the City of Elk River Zoning Code and the Minnesota Building
Code, and defined above, an in-ground swimming pool is a permitted accessory structure.
Does Sec. 30-2132 apply to all structures in the W&S District, including an in-ground swimming pool?
The Wild and Scenic River District is located within Division 13 of the city’s zoning ordinance (Chapter
30, Article VI. – Zoning). The City is required by Minnesota Statutes, Chapter 103F, and Minnesota
Rules, Part 6105 to designate the W&S District and to adopt the Wild and Scenic River Protections
incorporated in Sections 30-2071 through 30-2152 of the City Code of Ordinances.
The Division includes additional standards (setbacks, lot size, lot width, etc.) and their impacts and
relationship to land use controls specified elsewhere in the zoning district are defined within Sec. 30-2076.
Sec. 30-2076. - Effect of division on existing land use controls.
It is not intended by this division to repeal, abrogate, or impair any existing easements, covenants,
deed restrictions, or land use controls. However, where this division imposes greater restrictions,
the provisions of this division shall prevail. In case of conflict between provisions of the
N:\Departments\Community Development\Planning\Case Files\V\V 18-03 Allen\4-Planning Commission\SR Allen Appeal.docx
Minnesota Wild and Scenic Rivers Act or Minnesota Rules, and provisions of existing ordinances,
or some other law of the state, the more protective provision shall apply.
The above section clearly states that additional setbacks Division 13 applies to properties with the W&S
District may be more restrictive, and that those standards shall prevail when applying the setbacks as
defined.
The W & S District includes ordinances that regulate the placement of structures, and reads as follows:
Sec. 30-2132. - Placement, design and height of structures.
(a) Placement of structures on lot; setbacks. When more than one setback applies to a site, structures
and facilities shall be located so as to meet all setbacks. Structures shall be located as follows:
(1) Structure and on-site sewage system setbacks from the ordinary high-water level in the
Mississippi wild and scenic river district shall be as follows:
a. Setbacks in Sections 33 and 34, Township 33 North, Range 26 West:
1. Structures:
i. Unsewered: 75 feet.
ii. Sewered: 50 feet.
2. Sewage treatment system: 50 feet.
b. Setbacks in wild and scenic river district not in Sections 33 and 34, Township 33
North, Range 26 West:
1. Structures:
i. Unsewered: 100 feet.
ii. Sewered: 100 feet.
2. Sewage treatment system: 50 feet.
The provisions set forth in Section 30-2132 are mandated by the state and provide that all parcels
located in the W&S District do have additional setback requirements that are more restrictive than those
described elsewhere in the zoning ordinance. The required setbacks apply to all structures, principal or
accessory, and require an in-ground swimming pool to be setback 100 feet from the OHW of the
Mississippi River.
An in-ground swimming pool is a structure pursuant to both the zoning and building codes adopted by
the City of Elk River and, when located within the W&S District, must comply with the 100 foot setback
requirement, regardless of whether or not the structure or parcel is sewered.
MnDNR Official Response
On April 6, 2018, the city received a response from the DNR addressing Ms. Allen’s appeal. The
response states that an in-ground pool is a structure based on the following reasonable measures:
It requires design engineering to withstand side wall forces
It requires excavation and the construction of footings, walls and the installation of electrical and
plumbing systems in the ground, similarly to the construction of a basement.
It is an impervious surface. It does not infiltrate water but creates runoff.
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The letter further confirms that regulating in-ground pools as structures subject to the setback standards
of the Wild and Scenic Rivers Ordinance conforms to state rules.
Findings
Staff’s determination that an in-ground swimming pool is a structure and the application of setbacks
required under Section 30-2132 are consistent with the intentions of the ordinance, State Building Code,
and State Rules.
A resolution making findings of fact is attached for the Boards discussion, debate, consideration, revision
and/or adoption, if the Board decides it is appropriate to do so.
Financial Impact
None
Attachments
Location Map
Applicants Narrative dated March 26, 2018
Email Chain referenced as Exhibit 1
Deck Permit referenced as Exhibit 2
Site Plan received March 26, 2018
Building Permit 2012-01618 and Inspection Card
Building Permit 2013-00695 and Inspection Card
DNR Letter dated April 6, 2018
Resolution – Findings of Fact
Minnesota Department of Natural Resources • Division of Ecological and Water Resources
1035 South Benton Dr. Sauk Rapids, MN 56379
Minnesota Department of Natural Resources
Ecological and Water Resources Division
1035 S Benton Dr.
Sauk Rapids, MN 56379
April 6, 2018
Amanda Bednar
City of Elk River
13065 Orono Parkway NW
Elk River, MN 55330
RE: APPEAL OF FEBRUARY 14, 2018 ZONING DECISION REGARDING INSTALLATION OF IN-GROUND SWIMMING
POOL at 17815 Concord Ct. NW, Elk River, MN 55330
Dear Ms Bednar,
The DNR has reviewed your decision to deny the installation of an in-ground swimming pool. We find that you
are administrating your ordinance correctly to achieve the purposes of the state wild and scenic river rules;
which are to preserve and protect the distinguished scenic, recreational, natural, historical, and scientific values
of the Mississippi River and their adjacent lands. The DNR supports your decision to deny the application.
We find the City’s ordinance is consistent with State rules which require structures to be set back specific
distances. These setbacks are to limit impacts to public waters, these impacts can be in the form of erosion and
sediment entering public waters due to construction activities and ongoing concentrated human activity.
Setbacks also allow for vegetation to establish which provide habitat, stormwater infiltration and screening of
views from the wild and scenic river. The Mississippi River was designated a wild and scenic river to protect the
unique qualities mentioned above.
We find that an in-ground pool is a structure based on these reasonable measures:
• It requires design engineering to withstand side wall forces
• It requires excavation and the construction of footings, walls and the installation of electrical and
plumbing systems in the ground, similarly to the construction of a basement.
• It is an impervious surface. It does not infiltrate water but creates runoff.
Regulating in-ground pools as structures subject to the setback standards in your wild and scenic rivers
ordinance is correctly administer your ordinance in conformance with state rules.
Sincerely,
James Bedell
Area Hydrologist
|1035 S Benton Dr.| Sauk Rapids, MN 53379 | (320) 223-7850 | james.bedell@state.mn.us |
Minnesota Department of Natural Resources • Division of Ecological and Water Resources
1035 S Benton Dr. Sauk Rapids, MN 56379
EC: Dan Petrik; MN DNR Land Use Specialist
Tim Crocker; MN DNR North District Manager
Nancy Riddle; Sherburne County Zoning Adminstrator
City of Elk River
Board of Adjustments
Resolution 18-____
A Resolution Regarding the Denial of the Zoning Appeal Application
Submitted by Jessica Allen Regarding the Decision to Deny a Building Permit
for the Construction of an In-Ground Swimming Pool within the 100 Foot
setback from the Ordinary High Water Level of the Mississippi River
Required under Section 30-2132 of the Elk River City Code.
WHEREAS, Jessica Allen (“Applicant”), has appealed (“Appeal”) the decision of the City
of Elk River (“City”) to deny her request to construct an in-ground swimming pool within
100 feet of the ordinary high water level (OHW) of the Mississippi River (Case No. V 18-
03); and
WHEREAS, the record in this matter shall include all of the materials submitted to the
Board of Adjustments in connection with the March 26, 2018, Appeal, including the staff
reports and all attachments thereto, all other written materials submitted to the Board of
Adjustments, and all staff presentations and other public testimony taken at the public
meetings considering the Appeal, all of which is incorporated and made a part of the
findings of fact and this resolution; and
WHEREAS, the Board of Adjustments held a public hearing on April 24, 2018, to receive
testimony and evidence from city staff, the Applicant and any other persons regarding the
Appeal; and
WHEREAS, the Applicant and all others wishing to speak were given the opportunity to
present testimony to the Board of Adjustments; and
WHEREAS, the Board of Adjustments, at the conclusion of its April 24, 2018, public
hearing on the Applicant’s Application, considered and discussed the Appeal.
NOW, THEREFORE, the Board of Adjustments of the City of Elk River makes the
following findings of fact and decision with respect to the Appeal of Jessica Allen from the
City’s decision to deny the construction of an in-ground swimming pool within 100 feet of
the OHW for the Mississippi River.
FINDINGS OF FACT
1. The Appeal relates to Applicant’s property located at 17815 Concord Ct NW (the
“Property”), which was platted on April 30, 1997.
2. The Property is located within the City of Elk River’s (“City”) Wild and Scenic River
Zoning District, which is regulated by Division 13 of Article VI. – Zoning, of
Chapter 30 of the City of Elk River Code of Ordinances.
3. The City is required by Minnesota Statutes, Chapter 103F, and Minnesota Rules, Part
6105 to designate the Wild and Scenic River Zoning District (“W & S District”) and
to adopt the Wild and Scenic River Protections incorporated in Sections 30-2071
through 30-2152 of the City Code of Ordinances (“W&S Ordinance”).
4. A building permit for construction of a single-family home and deck on the Property
was applied for on June 12, 2001, and a certificate of occupancy for these
improvements was issued by the City on November 28, 2001.
5. Planning staff reviewed the June 12, 2001, application for a building permit and
initialed the Residential Site Plan Check sheet, indicating the application met all
requirements, including the 100 foot setback from the OHW of the Mississippi River
required by the W&S Ordinance.
6. On November 16, 2010, the Applicant purchased the Property.
7. On November 27, 2012, Gable Construction, on behalf of the Applicant, applied for
a building permit to construct a four-season porch with a deck above the porch
structure in the same location as the existing deck.
8. Planning staff reviewed the November 27, 2012, application for a building permit
and initialed the Residential Site Plan Check sheet, indicating the application met all
requirements, including the 100 foot setback from the OHW of the Mississippi River
required by the W&S Ordinance.
9. The City approved the November 27, 2012, application for a building permit on
December 3, 2012, and issued the building permit (No. 2012-01618) on December
21, 2012.
10. On April 30, 2013, Gable Construction, on behalf of the Applicant, applied for a
building permit to construct a 14’ x 12’ deck in front of the four-season porch that
had been permitted for construction by building permit No. 2012-01618.
11. City records show that Planning staff did not initial the Residential Site Plan Check
sheet and did not review the April 30, 2013, building permit application. However, a
building permit was approved (No. 2013-00695).
12. The April 30, 2013, building permit application shows that the additional deck is
located within the 100 foot OHW setback, and is prohibited by the W&S
Ordinances.
13. The City inspected and approved the post hole footing size and depth for both
building permits on May 1, 2013.
14. The City inspected and approved the framing of the porch and decks on June 27,
2013.
15. Neither permit has received a final inspection and notes included for permit number
2013-00695 state the contractor came into city hall and added steps to the additional
deck.
16. On February 2, 2018 the Applicant contacted the City of Elk River to discuss
construction of an in-ground swimming pool and was told about the 100 foot
setback requirement for all structures located within the W&S District. After
speaking with the Applicant that day, staff followed up via email with more detail
regarding the setback requirements applicable to an in-ground swimming pool and
the Property. The email included a map showing the Property and the location of the
proposed in-ground swimming pool.
17. Section 30-1 of the Elk River city code includes the following definitions:
a. Structure, unless otherwise defined in another division (for example,
floodplain management) as used in article VI of this chapter, means
anything constructed or erected, the use of which requires more or less
permanent location on the ground or attachment to something having a
permanent location on the ground. When a structure is divided into
separate parts by an unpierced wall, each part shall be deemed a separate
structure.
b. Private recreational facility means a building, structure or open space designed
as an accessory recreational use to a permitted principal use. Private
recreational facilities include such uses as swimming pools and tennis
courts and are not open to the general public and not operated for profit.
c. Accessory use, structure or building means a use, structure or building or portion
of a structure subordinate to and serving the principal use and structure on
the same lot and customarily incidental thereto.
18. Pursuant to Chapter 30, Article II of The City Code of Ordinances, the City has
adopted by reference the 2015 Minnesota Building Code (Building Code). The
Building Code defines structure as follows:
a. Structure. That which is built or constructed.
19. The Building Code defines swimming pools as follows:
a. Swimming Pool. Any structure intended for swimming, recreational bathing or
wading that contains water over 24 inches (610 mm) deep. This includes in-
ground, above ground and on-ground pools; hot tubs; spas and fixed-in-
place wading pools.
20. The definition of Structure set forth in Chapter 30 of the City Code includes in-
ground swimming pools, as they are constructed in place, require permanent location
on the ground, and attach to plumbing and pool equipment that is permanently
located on the ground.
21. The Minnesota Building code, which is incorporated by reference in Chapter 30 of
the City Code, clearly states that swimming pools of any type are a structure.
22. Pursuant to the definitions set forth in Chapter 30, “Private Recreational Facility” and
“Accessory, use, structure or building”, an in-ground swimming pool not open to the
general public and not operated for profit is an accessory structure that is
subordinate to and serving the principal use, single-family residential, and structure,
the home, on the same lot.
23. The W&S Ordinance includes standards set forth in state law intended to regulate
the subdivision and use of land within the W&S District to conserve the
shorelands of public waters and thus preserve and protect existing natural, scenic,
historical, scientific, and recreational values, reduce the effects of overcrowding
and poorly planned development of adjacent lands, prevent pollution, preserve
natural beauty and quietude, maintain proper relationships between various land
use types, and prohibit new uses that are inconsistent with the statewide standards
(City Code Sec. 30-2073)
24. Section 30-2076 of the W&S Ordinance describes the impacts of the additional
standards as they relate to existing land use controls. The section states:
Sec. 30-2076. - Effect of division on existing land use controls.
It is not intended by this division to repeal, abrogate, or impair any existing
easements, covenants, deed restrictions, or land use controls. However, where this
division imposes greater restrictions, the provisions of this division shall prevail. In
case of conflict between provisions of the Minnesota Wild and Scenic Rivers Act
or Minnesota Rules, and provisions of existing ordinances, or some other law of
the state, the more protective provision shall apply. (emphasis added)
25. Section 30-2132(a) of the W&S Ordinance regulates the placement of structures
within the W&S District and states:
Sec. 30-2132. - Placement, design and height of structures.
(a) Placement of structures on lot; setbacks. When more than one setback applies to a
site, structures and facilities shall be located so as to meet all setbacks.
(emphasis added) Structures shall be located as follows:
(1) Structure and on-site sewage system setbacks from the ordinary high-
water level in the Mississippi wild and scenic river district shall be as
follows:
a. Setbacks in Sections 33 and 34, Township 33 North, Range 26 West:
1. Structures:
i. Unsewered: 75 feet.
ii. Sewered: 50 feet.
2. Sewage treatment system: 50 feet.
b. Setbacks in wild and scenic river district not in Sections 33 and 34,
Township 33 North, Range 26 West:
1. Structures:
i. Unsewered: 100 feet.
ii. Sewered: 100 feet.
2. Sewage treatment system: 50 feet.
26. The provisions of the W&S Ordinance set forth above, which are mandated by state
law, provide that all parcels located in the W&S District do have additional setback
requirements that are more restrictive than those applicable outside of the W&S
District.
27. The required setbacks set forth in Sec. 30-2132 of the W&S Ordinance apply to all
structures, principal or accessory, and require a 100 foot setback from the OHW of
the Mississippi River.
28. An in-ground swimming pool is a structure pursuant to both the zoning and building
codes adopted by the City of Elk River and, when located within the Wild and Scenic
River District, must comply with the 100 foot setback requirement, regardless of
whether or not the structure or the parcel is sewered.
29. On April 6, 2018, the City received a letter from the Minnesota Department of
Natural Resources stating that the City has administrated the W&S Ordinance
correctly in this matter and that the City’s W&S Ordinance is consistent with State
law requiring structures be set back specific distances from the Mississippi River.
DECISION
Therefore, based on the findings of fact set forth above, the Board of Adjustments of the
City of Elk River denies the Applicant’s Appeal of the City’s decision that an in-ground
swimming pool at 17815 Concord Ct NW must comply with the 100 foot setback required
by Section 30-2132 of the City W&S Ordinance.
Passed and adopted this 24th day of April 2018.
Eric Johnson
ATTEST:
Tina Allard, City Clerk