5.2. BASR 05-22-2018The 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 Hearings
Meeting Date
May 22, 2018
Prepared by
Zack Carlton, Planning Manager
Item Description
Jessica Allen – 17815 Concord Ct. N
Wild and Scenic River Setback Variance to
Allow Installation of a Pool, Case No. V 18-04
Reviewed by
Chris Leeseberg, Senior Planner
Reviewed by
Action Requested
Approve, by motion, the variance request to encroach 55 feet into the 100 foot Wild and Scenic River
setback, with the below conditions, as all five requirements for approval of a variance are satisfied.
1.Environmental staff must approve the staking of the pool location and pool overflow location
prior to excavation.
2.Silt fence shall be installed prior to excavation, and shall not be removed until vegetation has been
established.
3.The pool deck/patio shall be constructed of permeable pavers.
4.The pool deck closest to the Mississippi River must include landscaping that will limit runoff and
slow the flow of water to the river.
5.The overflow from the pool must discharge into a landscaped area, not directly into the
Mississippi River.
Background/Discussion
The applicant, Jessica Allen, has applied for a variance to construct a swimming pool within the Wild and
Scenic River (W&S) District’s required 100 foot setback, Sec. 30-2132. Ms. Allen had requested an appeal
of staff’s decision regarding the application of Sec. 30-2132 to an in-ground swimming pool, but has since
withdrawn the application.
The Wild and Scenic River Ordinance, Division 13 within the Elk River City Code, is a state regulation,
Minnesota Administrative Rule 6105, that the city administers on behalf of the state. Comments from the
DNR are attached, and they recommend denial of the variance request.
If approved, the variance will allow construction of an in-ground swimming pool approximately 45 feet
(55 foot setback variance) from the ordinary high water mark (OHW) of the Mississippi River. The pool
structure itself will be at the 45 foot setback, and associated decking and patio areas will extend further
into the setback. The setback is for “structures” and the pool decking does not apply.
City ordinances also include impervious surface limits for parcels near the Mississippi River, but the
proposed in-ground pool, combined will all other existing impervious surfaces, does not create an impact
beyond the 25% limit required by ordinance.
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Applicable Regulations
Variances may be granted when the petitioner establishes that the variance satisfies all five of the criteria
described below. The applicants responses are highlighted in italics. The variance is:
1. Is in harmony with the general purpose and intent of the ordinance
i. A variance for a swimming pool is in harmony with the purpose and intent of the 100-foot setback in the W&S
district because the proposed swimming pool will not result in any additional erosion or sediment entering the river.
ii. A variance for a swimming pool is in harmony with the purpose and intent of the 100-foot setback in the W&S
district because it will not impact any vegetation on the bluff, will not disturb any natural habitat, or prevent
stormwater infiltration.
iii. A variance for a swimming pool is in harmony with the purpose and intent of the 100-foot setback in the W&S
district to screen views from the river.
iv. A variance for a swimming pool is in harmony with the broader, general purpose and intent of the W&S because
existing natural, scenic, historical, scientific and recreational values will be protected and preserved, pollution will be
prevented and the river’s natural beauty will be preserved.
The W&S ordinance is intended to preserve the scenic, recreational, natural, historical, and scientific
values of the Mississippi River and adjacent lands. The setback is intended to limit visual, erosion,
and pollution impacts resulting from development too close to the river. The request is in harmony
with the general purpose and intent of the ordinance, and to ensure the intent is preserved the
following conditions are recommended if the variance is approved:
1. Silt fence shall be installed prior to excavation, and shall not be removed until vegetation
has been established.
2. The man pool deck/patio shall be constructed of permeable pavers.
3. The pool deck closest to the Mississippi River must include landscaping that will limit
runoff and slow the flow of water to the river.
4. The overflow from the pool must discharge into a landscaped area, not directly into the
Mississippi River.
2. Is consistent with the City of Elk River comprehensive plan.
This variance request is consistent with the City of Elk River’s comprehensive plan because it is a permitted, accessory
use in our underlying zoning district. When a city designates a specific use as permissible in a particular zone or
district, the city has exercised its discretion and determined that the permitted use is consistent with the public health,
safety, and general welfare and consonant with the goals of its comprehensive plan. PTL, L.L.C. v. Chisago Cty. Bd.
of Comm'rs, 656 N.W.2d 567, 574 (Minn. Ct. App. 2003).
Construction of an in-ground swimming pool in a residential zoning district is consistent with the
Comprehensive Plan.
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;
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Swimming pools are permissible, accessory uses in the R1-d district. E.R.C. § 30-991(c). If a use is a permissible
accessory use in the R1-d district, it is also a permitted, accessory use in the wild and scenic district. § 30-2112(a).
Accordingly, our variance proposes a use of our property in a reasonable manner because a swimming pool is a use that
is consistent with the use of properties in our underlying zoning ordinances. Additionally, the requested variance will
allow us to put our property to a reasonable recreational use, because it will not otherwise change the basic topography,
natural beauty or appearance of our property from the river.
Construction of an in-ground swimming pool in accordance with all other required setback,
impervious surface, and building permit requirements is a reasonable use of the property not
currently permitted within the W&S district.
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
As proscribed by the DNR, the minimum lot size for recreational rivers is 2 acres with at least 200-feet at the water
line, and a 100-foot setback from the OHW. Minn. Admin. R. 6105.0110, subp. 2(c), subp. 3(b)(1). It is our
understanding that in 1999, the DNR approved the City of Elk River’s proposal for smaller lot sizes to accommodate
its planned cluster developments, which reduced the minimum lot size in our zoning districts to 20,000 square feet. The
100-foot setback, however, remained the same. See § 30-2131(2). The 100-foot setback as applied to a lot with
200-feet of shoreline amounts to a setback taking up approximately 20,000 square feet. A 2 acre lot is approximately
87,120 square feet, so the 100-foot setback only imposes upon approximately 23% of such a lot. In contrast, given the
unique circumstances of our lot, with .56 acres with 150-feet of shoreline, the 100-foot setback results in a much, much
larger imposition upon our property, approximately 60% of it.
The negotiation between the DNR and the City of Elk River allowing the minimum lot sizes to be reduced from
87,120 square feet (2 acres) to 20,000 square feet (less than a ½ acre) while maintaining the same, 100-foot setback
for all sized-properties puts our property in unique circumstances. A 22% restriction on land use is significantly less
burdensome than a 60% restriction. In light of the existing topography and the location of our home on our property,
the 100-foot setback essentially serves to take 60% of our lot for the purported benefit of the entire community leaving
us, alone, to bear the economic burden.5
A 45-foot setback amounts to a restriction on the use of 6,750 square feet of property, which is approximately 27.7%.
This amount is much more in line with the minimum lot size/100-foot setback set forth by the DNR, which is 23%,
before the minimum lot size was reduced (which is also evidence that our variance request proposes to use our property in
a reasonable manner).
The DNR and city approved a parcel below the minimum design standards described within Minn.
Admin. Rule 6105. If the parcel had been platted per the minimum standards required by the DNR,
additional opportunities for siting of a swimming pool outside of the 100 foot setback may have been
possible.
5. The variance, if granted, will not alter the essential character of the locality.
Our requested variance will not alter the essential character of the locality. A swimming pool is a recreational facility
that is a permitted, accessory use in our zoning district and our property is located on a stretch of the river designated as
“recreational.” As discussed above, recreational areas of the river are areas that have undergone significant
development. Implicit in this designations is that fact that fishermen, boaters, kayakers and passers-by on the river
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should expect to see houses, decks, gazebos, sheds, docks, stairways, and even swimming pools. In fact, there are
countless decks, swings, gazebos and sheds that are visible from the river in the stretch of river near our property.
Construction of an in-ground swimming pool will not impact the essential character of the locality.
The swimming pool will not be visible by people boating on the Mississippi River, and will not
further impact the characteristics of the river in this area. An in-ground swimming pool is consistent
with the character expected of a single-family residential neighborhood.
Financial Impact
None
Attachments
Location Map
Applicant’s Narrative dated April 30, 2018
Site Plan Sketches submitted April 30, 2018
DNR Comment Letter dated May 10, 2018
Jessica Allen
Variance Case No: V 18-04 Erll River
1
April 30, 2018
Board of Adjustments
City of Elk River
13065 Orono Parkway NW
Elk River, MN 55330
Zack Carlton
Planning Manager
Via email:
zcarlton@ElkRiverMN.gov
Amanda Bednar
Environmental Coordinator
Via email:
ABednar@elkrivermn.gov
RE: Application: Requested variance to install an in-ground swimming pool approximately 45 feet from the
ordinary high water mark of the Mississippi River (minimum 100 feet required).
Applicant: Ethan and Jessica Allen, 17815 Concord Ct NW, Elk River, MN 55330
Dear Members of the Board, Mr. Carlton and Ms. Bednar,
We are requesting a variance to install a 20’ x 40’ in-ground swimming pool in our backyard,
approximately 45-feet from the ordinary high water mark (OHW) of a channel of the Mississippi River
classified as “Recreational” by the MN DNR pursuant to the Minnesota Wild and Scenic Rivers Act.
Minn. Admin. R. 6105.0840. The City of Elk River adopted the general development standards for
land use in its zoning ordinance, Chapter 13, Division 13 Wild and Scenic River Protection. Minn.
Admin. R. 6105.0870, subp. 6; E.R.C. § 30-2072.
On February 13, 2018, the City of Elk River Environmental Department denied our request for a
permit based upon its interpretation that the 100-foot setback in Chapter 30, Division 13, the Wild
and Scenic River Protection district (W&S) prohibits all structures, including an in-ground swimming
pool, from being located closer than 100-feet from the OHW. E.R.C. § 30-2132(a)(1)b. Consequently,
a swimming pool would not be permitted in our backyard without a variance.
Although we disagree with Environmental’s determination that swimming pools are structures that
must comply with the 100-foot setback, after meeting with Mr. Carlton and Ms. Bednar at our property
on April 26, 2018, pursuant to E.R.C. section 30-2094, we respectfully submit the following narrative
in support of our variance request.
By way of background, we bought our home and moved to Elk River in November 2010. Our home
was built in 2001. We are the second owners. It is a lovely home and it is situated on a beautiful lot.
Although not on the main channel of the Mississippi River, the rear of our property is riparian to a
channel of the river, with a large island separating it from the river’s main channel. Our yard is private
for being located in a subdivision. It is surrounded by mature trees, an abundance of natural features
including several Oak trees that are over 100-feet tall. Our home is situated at the highest point of
our .56 acre lot, and is setback approximately 100-feet from the OHW. Our backyard is mostly flat.
The rear edge of our backyard is marked with a steep bluff, which extends down, more than 30-feet,
to the river’s OHW. This bluff remains in its natural state, full of trees and bushes.
We have spent a lot of time, energy and substantial resources fixing up our home and the yard over
the last eight years. Having purchased it from the bank as a part of foreclosure proceedings, the home
and yard had been neglected for some time. There was a lot of work to do, but we have enjoyed
making this house our home and are hopeful to be able to stay in it and raise our family here.
2
(1) The variance is in harmony with the general purpose and intent of the ordinance.
Our property is in the R1-d zoning district and also falls within the Wild and Scenic overlay district.
The purpose of the Elk River’s Zoning Ordinance is to “protect and promote the health, safety, morals
and general welfare, conserve the values of the properties and encourage the most appropriate use of
land, and to conserve and manage the use of natural resources.” E.R.C. § 30-573. A variance allowing
a swimming pool to be installed in our backyard is in harmony with the general purpose and intent of
the Zoning Ordinance, as well as the purpose and intent of the R1-d district and the W&S overlay
district.
a. R1-d district (Division 6).
The purpose of the R1-d district is to provide single-family residential districts with larger lots and
higher quality housing types in areas with full municipal public sewers, storm sewers, and municipal
water in areas that possess significant natural features, including wetlands, and topographic features.
This district is intended to encourage the design of subdivisions that protect natural features while
providing high quality housing sites. § 30-991(a)(5). Swimming pools are private recreational facilities,
which are permitted, accessory uses in the R1-d district. §§ 30-1 Private Recreational Facilities; 30-
991(a)(4). By listing swimming pools as a permitted accessory use, the City determined that such a
use of our property is consistent with uses of land in our district. PTL, L.L.C. v. Chisago County Bd. of
Com’rs, 656 N.W.2d 567, 574 (Minn. Ct. App. 2003) (citing Chanhassen Estates Residents Ass’n v. City of
Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984)).
Swimming pools must be setback a minimum of 8-feet from the side yard and rear yard lot lines.
E.R.C. § 30-1007. Our backyard could accommodate installing a swimming pool to meet the stated
R1-d setbacks. Our home and property is fundamentally consistent with the purpose of the R1-d
district. As a permitted accessory use, a swimming pool is likewise in harmony with the general
purpose and intent of the R1-d district.
b. Wild and Scenic River Protection overlay district (Division 13).
Our variance request seeks relief from the strict enforcement of the 100 -foot structure setback. We
are requesting an area variance to install a swimming pool approximately 45 feet from the OHW. This
can be done such that the variance would be in harmony with the broader, general purpose and intent
of the W&S district and the purpose and intent of the 100-foot structure setback.
The purpose of the W&S district is to preserve and protect existing natural, scenic, historical, scientific
and recreational values” and to “prevent pollution and preserve natural beauty. § 30-2073.1 According
to Mr. Bedell, Area Hydrologist for the DNR, the purpose of the 100-foot setback is 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.” (Mr. Bedell’s April 6, 2018 Correspondence to Amanda Bednar related to our previously
1 In adopting the Wild and Scenic Rivers Act, the Minnesota legislature found that “certain of Minnesota’s
rivers and their adjacent lands possess outstanding scenic, recreational, natural, historical, scientific and similar
values. It is in the interest of present and future generations to retain these values and a policy of the state and
an authorized public purpose to preserve and protect these rivers.” Minn. Stat. § 103F.305.
3
filed appeal of the zoning decision.) The reason why the length of the 100-foot setback was chosen,
as opposed to 75-feet or 50-feet, was not articulated. Nor is why 100-feet is the amount of distance
necessary to achieve the stated purposes.2
The proposed pool would not be visible from the river. Our yard is secluded due to the large island
being directly across the channel from our property. The bluff is steep and the channel between our
property and the island is fairly narrow. Passers-by can only see the very edge of our yard nearest the
river and the top-half of our house. We are not visible from the river when we are in our backyard
unless we are very near the edge of the bluff. Our property is scarcely visible from the homes located
across the main channel in Otsego, even in winter, much less in leaf-on conditions, so a swimming
pool would not be visible by those homeowners either.
i. A variance for a swimming pool is in harmony with the purpose and intent of
the 100-foot setback in the W&S district because the proposed swimming pool
will not result in any additional erosion or sediment entering the river.
We have requested a variance to install a swimming pool approximately 45-feet from the OHW. As
a swimming pool, it should not create any more than short term potential for erosion. To mitigate
this potential, our contractor will ensure that erosion is minimized and that sediment is prevented
from reaching the river by placing silt fencing barriers prevented during actual construction activities.
Only the foot print of the swimming pool and an additional 2-foot surrounding it needs to be
excavated. The soil that is excavated will be removed from the site with the exception of that needed
to backfill the two feet on the perimeter of the pool.
Neither will our variance request result in any additional erosion, sediment entering the river, pose any
threat of pollution, or degradation of the quality of the river once construction is complete. We
propose to install a swimming pool that will be setback approximately 45 -feet from the OHW, more
than 30-feet from the top of the bluff, and well-back from the 100-year flood plain. Also, we are
proposing a swimming pool that would have saltwater. Saltwater is very natural. It is much less
hazardous than water in chlorinated pools.
Our variance proposes to surround the swimming pool with the minimum amount of concrete
necessary for stabilization of the pool, just 2-feet. That is just 116-square feet of impervious surface
from which run off could originate. Any other patio/decking around the swimming pool will be
pervious pavers. The pool itself is not technically “impervious” in the traditional sense because it does
not create run off, but rather absorbs the run off like a catch basin.3 Assuming normal rain amounts,
that rain essentially becomes free water for use in the pool. Additionally, to minimize (or eliminate)
2 It is our understanding that the DNR has authority to “assist local governments in the enforcement of their
ordinances.” Minn. Stat. § 103F.335. However, it lacks any enforcement authority. The DNR does not have
authority to refuse to approve a variance that is considered and granted by a municipality. In re Hubbard, 778
N.W.2d 313, 323-25 (Minn. 2010).
3 Assuming; however, that the swimming pool is impervious, it amounts to 800 square feet of hardcover. The
2-feet of concrete patio surrounding the pool totals 120 square feet, for a total hardcover of nearly 1,000 square
feet. 25% of our lot is 6,098.4 square feet. At the time of our original inquiry, we were told that our hardcover
was at approximately 20%, or 4,878.7 square feet. As a result, the 1,000 square feet of hardcover will not put
us over the 25% limit on impervious lot coverage.
4
erosion and sediment, we could either slope the concrete decking back toward the pool so that the
pool/its cover would capture any surface water. Assuming normal rain fall amounts, that water would
then be retained directly into the pool and filtered in the pools filter system. Another option to reduce
additional erosion or sediment entering the river would be to install the concrete flatwork to slope
toward drains leading to an underground gutter-system, filtrating it to the river via that underground
system. Both of these options would serve to minimize or avoid altogether any additional erosion of
the bluff line and prevent any additional sediment from entering the river.
For these reasons, our requested variance is in harmony with the purpose and intent of the 100-foot
setback in the W&S district.
ii. A variance for a swimming pool is in harmony with the purpose and intent of
the 100-foot setback in the W&S district because it will not impact any
vegetation on the bluff, will not disturb any natural habitat, or prevent
stormwater infiltration.
We have requested a variance to install a swimming pool approximately 45-feet from the OHW. The
swimming pool will be located more than 30-feet from the top of the bluff. It will not be located in
the shoreline impact zone. With the exception of having to possibly remove one evergreen tree
located very near our house, no trees will be removed, no vegetation on the bluff will be disturbed,
nor will the bluff line be altered. Our proposed plan is to install our swimming pool as far back from
the river and the bluff as possible.
As it sits today, nearly our entire backyard is grass-covered. Technically vegetation, the grass covering
the footprint of the pool plus 2-feet around the perimeter is what would be disturbed. This area is
not the natural habitat of any animals or birds. It is a part of our manicured and fertilized lawn. As
touched on above, the swimming pool would be installed so as to not obstruct or even change at all
stormwater infiltration or drainage patterns in our yard.
For these reasons, our requested variance is in harmony with the purpose and intent of the 100-foot
setback in the W&S district.
iii. A variance for a swimming pool is in harmony with the purpose and intent of
the 100-foot setback in the W&S district to screen views from the river.
Our requested variance is in harmony with the purpose and intent of the 100-foot setback to protect
the river views because our swimming pool simply will not be visible from the river. Our home and
backyard is very secluded despite being situated in the Mississippi Oaks subdivision. Our backyard is
essentially flat from the back of our house to the top of the bluff line at which the bluff drops off
sharply, for a distance of approximately 30-feet, to meet the river.
Only the top half of the house is visible from the river. A structure in our backyard would have to be
pretty tall to be visible from the river. In fact, kayakers, fisherman and other boaters can only see
people in our backyard if we are very near the edge of the bluff because it is so steep and the channel
is between our property and the island is very narrow. Adding to our property’s seclusion is a large,
heavily wooded, uninhabited island located directly across the channel from our property. Because of
the island, our home is only partially visible from the main channel of the river, even in the winter.
When the trees have their leaves, our home is scarcely visible from the main channel of the river.
5
Also, our bluff is populated with more than a dozen large trees, both at the top of the bluff and down
the bluff line toward the river. The bluff is also covered with lower-to-the-ground vegetation. Our
house is barely visible, even from the channel adjacent to our property, when the leaves are on all of
those trees and bushes. Below are two photographs of the view of our property from approximately
25-feet into the channel of the river.
The requested variance will be in harmony with the purpose and intent of the W&S 100-foot setback
because our property can accommodate a swimming pool and still preserve the serenity of the river.
A swimming pool, by its very nature, has no height. § 30 -1007. Passers-by on the river will never
even know it is there. A swimming pool will not alter the scenic value of the river. No trees protecting
the bluff will be removed, trimmed or changed in any way. The view of our property from the river
will not change at all with the installation of a swimming pool and our variance request is in harmony
with the purpose and intent of the 100-foot setback to preserve views from the river.
iv. A variance for a swimming pool is in harmony with the broader, general
purpose and intent of the W&S because existing natural, scenic, historical,
scientific and recreational values will be protected and preserved, pollution will
be prevented and the river’s natural beauty will be preserved.
Although the broader purpose and intent of the W&S district is also addressed in the above-sections
addressing the purpose and intent of the 100-foot setback, we are addressing this purpose and intent
as well since sets forth the ordinance’s purpose and intent and therefore should not be ignored in this
analysis. Because this narrative has largely addressed how our variance request is in harmony with the
W&S district’s purpose and intent to protect and preserve existing natural, scenic, historical and
scientific values and will prevent pollution and preserve the river’s natural beauty, this section will
focus on how our variance will protect and preserve the recreational values of the river.
The area of the Mississippi River on which our property sits is classified as “recreational.” § 30-
2111(a) (citing Minn. R. 6105.0910, subp. 11C. (Government lot 3)); Minn. Admin. R. 6105.0840.
“Recreational rivers are those rivers that may have undergone some impoundment or diversion in the
past and that may have adjacent lands which are considerably developed, but are still capable of being
managed so as to further the purposes of the [Wild and Scenic Rivers Act].” Minn. Admin. R.
6
6105.0060, subp. 4.4 Considerable development means that the bordering lands may have already
been developed for a full range of agricultural or other land uses. Recreational rivers also may be
readily accessible by preexisting roads or railroads. Id. With adjacent land that has undergone
considerable development, fewer restrictions on property uses are implicit in the “recreational”
designation. In fact, the adjacent lands in the stretch of river, both up and down the river, where we
live is peppered with homes and yards with manicured lawns, gazebos, decks, swings and other
structures intended for recreational use that are largely visible from the river.
The Zoning Ordinance includes swimming pools in the definition of private recreational facilities.
Pools are used for swimming, by definition, a recreational activity. Additionally, a swimming pool is
a permitted, accessory use in our underlying zoning district. Our requested variance from the strict
enforcement of the 100-foot structure setback to allow the installation of a swimming pool
approximately 45-feet from the OHW will not interrupt, violate, or otherwise interfere with the
existing serenity, beauty or seclusion of this recreational stretch of the river. It would allow us to
strengthen the recreational value of our property with a stated recreational use. Our requested variance
will not interfere, prevent, or limit the recreational value of the river to the public either because of
the many reasons set forth above. Therefore, our requested variance is in harmony with the broader
purpose and intent of the W&S district to preserve the recreational value of the river.
(2) The variance is consistent with the City of Elk River comprehensive plan.
This variance request is consistent with the City of Elk River’s comprehensive plan because it is a
permitted, accessory use in our underlying zoning district. When a city designates a specific use as
permissible in a particular zone or district, the city has exercised its discretion and determined that the
permitted use is consistent with the public health, safety, and general welfare and consonant with the
goals of its comprehensive plan. PTL, L.L.C. v. Chisago Cty. Bd. of Comm'rs, 656 N.W.2d 567, 574
(Minn. Ct. App. 2003).
The Comprehensive Plan states the following as strategies relating to natural environment and
resources: “continue to enforce all environmental protection zoning standards related to restrictive
soils, woodlands, wetland, floodplains, shorelands, bluffs steep slopes, and erosion control, to preserve
and protect sensitive and other natural areas of community importance…”
As stated above, the swimming pool would be setback more than 30-feet from the top of the bluff, in
compliance with the bluff setback. As an in-ground pool, there would be limited, if any, need for
stormwater retention and erosion control from the pool itself. The 2-foot concrete patio surrounding
the pool will create minimal runoff, but can be adequately addressed as set forth above in section
(1)(b)(i).
Another strategy is to: “balance the protection of natural resources with economic development to
maintain the vision of Elk River” and “protect and enhance air and water quality to provide a livable
and sustainable community.”
4 By comparison, “ ‘scenic rivers’ are those rivers that exist in a free-flowing state and with adjacent lands that
are largely undeveloped. Id. at subd. 7. And “ ‘wild rivers’ are those rivers that exist in a free-flowing state,
with excellent water quality and with adjacent lands that are essentially primitive.” Id. at subd. 9.
7
Allowing our variance request would meet the strategy to balance and protect natural resources while
still allowing us to use our property because it we would be improving the value of our property
thereby helping to attain the goal of economic development in Elk River. Our variance request is also
consistent with the strategy to protect water quality because we will not create any significant or
dangerous run off, we will not upset or disturb the natural topography of the bluff line, which will
preserve the quality of the river water.
(3) Our requested variance proposes to use our property in a reasonable manner not
permitted by the W&S district’s 100-foot setback.
Swimming pools are permissible, accessory uses in the R1-d district. E.R.C. § 30-991(c). If a use is a
permissible accessory use in the R1-d district, it is also a permitted, accessory use in the wild and scenic
district. § 30-2112(a). Accordingly, our variance proposes a use of our property in a reasonable
manner because a swimming pool is a use that is consistent with the use of properties in our underlying
zoning ordinances. Additionally, the requested variance will allow us to put our property to a
reasonable recreational use, because it will not otherwise change the basic topography, natural beauty
or appearance of our property from the river.
Thus, we are seeking a variance from the strict enforcement of the 100-foot structure setback in
section 30-2132(a)(1) to use our property in a reasonable manner that is prohibited by the broadly
worded 100-foot setback in the W&S district. The proposed location of our swimming pool would
be more than 30-feet from the top of the bluff, so the pool would meet the additional structure setback
set forth in section 30-2022(a)(2). Nor does our proposed location place the swimming pool in the
20-foot bluff impact zone. The variance we are seeking is reasonable because we are proposing to
place the swimming pool (a permitted, accessory use) as far back from the OHW as possible,
approximately 45-feet from the OHW. We propose to locate the swimming pool in close proximity
to the walkout portion of our house. Our property is only .56 acres in size, so the proposed location
of the swimming pool is the most logical placement in relation to our house while still being in the
farthest location away from the OHW as possible.
(4) The inability to meet the 100-foot setback is due to the unique circumstances of our
property.
Our property has several physically unique characteristics that necessitate this variance request. Our
lot has 150-feet of shoreline on a channel of the Mississippi River. The rear of our backyard is
accented by a very steep bluff that descends down more than 30-feet to the OHW of the river. Our
property was platted in the late 1990s. It is .56 acres, which is 24,393.6 square feet. Our lot is pie-
shaped with dimensions of 104’ (front) x 173’ (east side) x 150’ (rear/riparian side) x 197’ (west side).
It is smallest in the front and gradually gets wider in the back. Our home was built at the 100 -foot
setback.
Considering the size of our lot and the placement of our home on our lot, the 100-foot setback
forecloses us from installing a swimming pool in our backyard even though a swimming pool is a
permitted, accessory use in the R1-d zoning district. As an overlay district, the W&S district is not
intended to abrogate or impair permissible land uses set forth in the R1-d zoning, nevertheless, when
the W&S district imposes greater restrictions, its restrictions govern. § 30-2076.
8
As applied to the unique circumstances and topography of our property, the 100-foot setback places
a tremendous restriction on the use of our land. The 100-foot setback essentially reduces the use of
our half-acre lot to a third-acre lot, taking away approximately 15,000 square feet or 60% of our
property, for any use which involves a structure, which is anything that is built or constructed,
including a swimming pool. In other words, strict enforcement of the 100-foot setback to our lot
leaves us with fewer than 10,000 square feet of usable space, which is not even considered a buildable
lot size in the R1-d district. § 30-1006 (14,000 square feet).
As proscribed by the DNR, the minimum lot size for recreational rivers is 2 acres with at least 200-
feet at the water line, and a 100-foot setback from the OHW. Minn. Admin. R. 6105.0110, subp. 2(c),
subp. 3(b)(1). It is our understanding that in 1999, the DNR approved the City of Elk River’s proposal
for smaller lot sizes to accommodate its planned cluster developments, which reduced the minimum
lot size in our zoning districts to 20,000 square feet. The 100-foot setback, however, remained the
same. See § 30-2131(2). The 100-foot setback as applied to a lot with 200-feet of shoreline amounts
to a setback taking up approximately 20,000 square feet. A 2 acre lot is approximately 87,120 square
feet, so the 100-foot setback only imposes upon approximately 23% of such a lot. In contrast, given
the unique circumstances of our lot, with .56 acres with 150-feet of shoreline, the 100-foot setback
results in a much, much larger imposition upon our property, approximately 60% of it.
The negotiation between the DNR and the City of Elk River allowing the minimum lot sizes to be
reduced from 87,120 square feet (2 acres) to 20,000 square feet (less than a ½ acre) while maintaining
the same, 100-foot setback for all sized-properties puts our property in unique circumstances. A 22%
restriction on land use is significantly less burdensome than a 60% restriction. In light of the existing
topography and the location of our home on our property, the 100-foot setback essentially serves to
take 60% of our lot for the purported benefit of the entire community leaving us, alone, to bear the
economic burden.5
A 45-foot setback amounts to a restriction on the use of 6,750 square feet of property, which is
approximately 27.7%. This amount is much more in line with the minimum lot size/100-foot setback
set forth by the DNR, which is 23%, before the minimum lot size was reduced (which is also evidence
that our variance request proposes to use our property in a reasonable manner).
Accordingly, we are a requesting a variance because strict enforcement of the 100-foot setback severely
restricts the uses to which we can put our property given our property’s unique size, topography, and
location on the Mississippi River.
(5) The variance will not alter the essential character of the locality.
Our requested variance will not alter the essential character of the locality. A swimming pool is a
recreational facility that is a permitted, accessory use in our zoning district and our property is located
on a stretch of the river designated as “recreational.” As discussed above, recreational areas of the
river are areas that have undergone significant development. Implicit in this designations is that fact
that fishermen, boaters, kayakers and passers-by on the river should expect to see houses, decks,
5 We pay more than $6,000 in property taxes annually based upon owning, and having use of, .56 acres
in the City of Elk River.
9
gazebos, sheds, docks, stairways, and even swimming pools. In fact, there are countless decks, swings,
gazebos and sheds that are visible from the river in the stretch of river near our property.
Regardless, our yard is not visible from the river. Likewise, a swimming pool would not be visible
from the river. And our yard is secluded enough by bordering trees that our neighbors’ views of our
yard (and swimming pool) from their homes and yards would likewise be severely limited in leaf-on
conditions. Installation of a swimming pool will not change or alter the bluff line, no trees will be
removed from the bluff, nor will any natural features of our property be upset, altered or removed.
Simply put, the view of our yard from the river will not change if our variance request is granted.
In addition, even if it were visible from the river, a swimming pool would not be out of place, out of
scale, or inconsistent with the properties on the river in the surrounding area. A swimming pool
would not be out of place because there are at least five other properties on the river, in the City of
Elk River, that have swimming pools on the riparian side of their lots.6 At least a dozen more river
property owners from Monticello to Ramsey also have swimming pools located on the riparian side
of their lots.7 And several properties have swimming pools on the river side in the Anoka-area of the
river.
Accordingly, our variance request will not alter the essential character of the locality because there are
more than a dozen properties in this area of the river that have swimming pools in their riparian yards.
It will also restore the use of our property that is abrogated by the 100-foot setback. The variance will
ease the significant burden and practical difficulties that the 100-foot setback places on the use of our
property.
For all of the reasons set forth in this narrative, we respectfully request that our requested variance
from the strict enforcement of the 100-foot setback to allow us to install swimming pool be granted.
We appreciate your time and consideration.
Sincerely,
______________ ________________
Ethan Allen Jessica Allen
6 (1) 13812 Riverview Dr. NW, Elk River; (2) 14693 Co. Rd. 30, Elk River; (3) 15165 Co. Rd. 30, Elk River; (4)
13610 Riverview Dr. NW, Elk River (above-ground); and (5) 10122 154th Ave. NW, Elk River. The swimming
pools listed as (4) and (5) appear to be located closer to the river than 100-feet).
7 (1) 9040 159th Ln NW, Ramsey; (2) 12920 96th St NE, Otsego; (3) 1005 W. River St., Monticello; (4) 1003 W.
River St., Monticello; (5) 16804 171 Cir. SE, Big Lake; (6) 20011 Co. Rd. 14, Big Lake; (7) 19407 180th Ave.,
Big Lake; (8) 19247 180th Ave., Big Lake; (9) 19099 180th Ave., Big Lake; (10) 19063 180th Ave., Big Lake; (11)
19037 180th Ave., Big Lake; and (12) 17397 182nd Ave., Big Lake.
EAST SIDE-
YARD
SETBACK
18+ FEET
DECK AT
WALKOUT
DECK
N
TOP OF
BLUFF
OHW MISSISSIPPI RIVER
GARAGE
PATIO
DECK
DRIVEWAY
PROPOSED 20 x 40 POOL
17815 CONCORD CT NW
30+ FEET FROM
TOP OF BLUFF
45 FEET
VARIANCE
REQUEST
FROM OHW
OF RIVER
WEST SIDE-YARD
SETBACK 45+ FEET
STEEP BLUFF MAKING OHW
APPROXIMATELY 15 FEET FARTHER
THAN THE TOP OF THE BLUFF
DRAINAGE & UTILITY EASEMENTS
DENOTES
SURFACE
DRAINAGE
EVERGREEN
TREES
PRIVACY
BUSHES
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
May 10, 2018, 2018
Amanda Bednar
City of Elk River
13065 Orono Parkway NW
Elk River, MN 55330
RE: JESSICA ALLEN VARIANCE CASE # V18-04 REGARDING INSTALLATION OF IN-GROUND SWIMMING POOL AT
17815 Concord Ct. NW, Elk River, MN 55330
Dear Ms. Bednar,
The DNR has reviewed the variance request for 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.
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 administered 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 Administrator