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5.1. BASR 08-23-2022Request for Action To Item Number Board of Adjustments 5.1 Agenda Section Meeting Date Prepared by Public Hearings August 23, 2022 Chris Leeseber , Senior Planner Item Description Reviewed by Karin Filip- 15488 Fillmore St. NW Zack Carlton, Community Development Director Setback variance to build a pool (20' river Reviewed by setback), Case No. V 22-07 — continued from July Suzanne Fischer, Environmental Services/Special Projects 26, 2022 Director Action Requested Approve, by motion, the river setback variance for the following reasons: 1. The general purpose and intent of the ordinance are met. 2. The property has a residential land use that is consistent with the Comprehensive Plan. 3. The proposed use is reasonable and is permitted in the zoning ordinance. 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. 5. The variance will not alter the essential character of the locality Background/Discussion The applicant is requesting variances to the side yard and river setbacks for a deck and pool. The pool and deck were installed without being permitted, as determined during a site inspection for the pool heater gas line in the fall of 2021. The applicant retroactively applied for the permit per the inspector's instructions. During the plan review process for the permits, staff discovered the setback issues for both the pool and deck permits. Figure I The following are the setback requirements: Pool Deck Side 8' 15' River 100, 100, The Elk River Vision A n elcoming community with revolutionary and spirited resourcefulness, exceptional service, and community engagement that encourages and inspires prosperity. P I I E I E 0 IY NATURE Updated. August 2020 During the site plan review, it was determined that a side yard setback variance is not required per Section 30-795 (4). It states side yard requirements specified for a zoning district may be reduced to 20 percent of the lot width, ten percent to be located on each side of a structure, in situations where the lot size is less than the minimum lot size. The lot size is 0.87-acres and is zoned for 2 1/2 acres. The lot width is 145' where 20% of that is 29'. This results in 14.5' setback requirement for the side yards. The homeowners are proposing the deck addition to be 17-18' from the side property line. This application has been postponed several times for the applicant to obtain a new Letter of Map Amendment (LOMA), to determine what improvements, if any, are allowed within the Mississippi Floodway. The LOMA was revised, and the structures have been removed from the National Flood Insurance Program (NFIP), and the Special Flood Hazard Area (SFHA). Applicable Regulation Variances may be granted when the petitioner establishes that the variance satisfies all five of the criteria described below. The variance: Is in harmony avith the general purpose and intent of the ordinance, and The general purpose and intent of setbacks is to provide uniformity with the placement of homes in a zoning district. The setback requirements from rivers require impervious hardcovered structures further away to allow more vegetated area to slow stormwater runoff and have it naturally absorb into the ground as well as filter out any sediments. Most of the homes in the area are set back the same amount from the river. 2. Is consistent n,,ith the City of Elk River Comprehensive Plan. The Comprehensive Plan guides the property as `Traditional Single Family Residential' where single family homes, decks, and pools are desired uses. 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 petitionerproposes to use thepropery in a reasonable manner notpermitted by the Zoning ordinance; Requesting to have a deck/pool in the back yard is a reasonable use of the property. 4. The plight of the petitioner is due to circumstances unique to the propery and not a consequence of the petition's own action or inaction; and The applicant stated the property received a variance for the placement of the home within the 100' setback requirement from the Ordinary High Water (OHW) mark of the river. The survey shows the house about 60-70' from the OHW. This is a unique circumstance that limits the ability to have a deck, Eke other homes in the city. The deck/pool would meet typical rear yard setback requirement if the river was not there. 5. The variance, iifgranted, will not alter the essential character of the locality. All the homes in this area on the river fall within the 100' river setback and several homes have decks on the river side of the house. The variance will not alter the essential character of the locality. Financial Impact None Council Meeting If denied, or any interested party appeals by September 2, 2022, this item will go to the September 19, 2022, City Council meeting. Mission/Policy/Goal ■ Work with citizens to achieve goals ■ Help, not hinder citizen quality of life Attachments ■ Location Map ■ Applicant's Narrative ■ Site Plan ■ Environmental Services/Special Projects Director Memo dated August 15, 2022 ■ Branch Chief Engineering Services Branch Federal Insurance and Mitigation Administration letter dated July 27, 2022 ■ Letter of Map Revision Floodway dated July 27, 2022 75L24 2110 _� .. 5.,24 1225 .. f 75470u110 Ir 9� y 75�24-1202 75-470-0120 21. �75470-0M fr�j •` 1 75-470.0140 5-03612 �' II 75-4I4)'0150 754TOa160 75 -0t�20, - ,s 024-2a i �75u24-2611 - 75525E110 a 7s40242a 6 r 's ' 754 0-0010 - Fihp Case No:V 22-07 4 Variance EIURiNFer Phis paht is fol ilIc applicanI'� is ctcncc; is doc noI nG.cd I I?c st.bmltuIl. The narrative is your opportunity to describe, promote, and sell your proposal to the Board of Adjustment and City Council (if needed). Your typewritten narrative should explain your request in detail AND how the five bolded criteria below are met in order to be granted a variance. If the five criteria are not answered and submitted within 10 calendar days after the application has been submitted, the application will be returned incomplete and the next application deadline will be the following month. (a) A variance may be requested only by the owner of the property (petitioner) to which the variance would apply. A variance may not be granted which would allow the use of property in a manner not permitted within the applicable zoning district, provided that the board may grant a variance for the temporary use of a single-family dwelling as a two-family dwelling. In granting any variance, the board may prescribe conditions to ensure substantial compliance with this article and to protect adjacent property, including, without limitation, an expiration date. The violation of any written condition shall constitute a violation of the ordinance. No request for a variance may be resubmitted sooner than six months following denial. A variance shall become void within two years following issuance unless substantial action has been taken by the petitioner in reliance thereon. (b) A variance may be granted by the board only if it finds that: (1) The variance is in harmony with the general purpose and intent of the ordinance. (2) The variance is consistent with the City of Elk River comprehensive plan. (c) Variances may be granted when the petitioner establishes that there are practical difficulties in complying with the zoning ordinance. Practical difficulties means that: (1) The petitioner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; (2) 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 (3) The variance, if granted, will not alter the essential character of the locality. (d) Economic considerations alone do not constitute practical difficulties. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems. Page 5 (Last Modified 1/5/2021) We, Michael and Karin Filip who reside at the property address 15488 Fillmore St NW, Elk River, MN 55330; Lot 3, Block 1, Avon Acres Third Addition, which is located in Section 24, Township 32, Range 26 W, in Sherburne County, Minnesota since 2008 are requesting variance from the standard setback rule ordinance for deck and pool placement. The lot configuration is long and narrow (100 ft x 365 ft) and the original developer/builder of home structure plan was granted a variance when the home was built in 1996 to set the home structure closer than 100 ft setback, which consequently limits the use of the back yard space due to the proximal placement of the house to the riverbank; therefore, we set the pool back as far as possible from the bluff, and as much as is practical. The deck structure was erected for ease of access to the pool, and to allow safe observation, pool maintenance and the ability to integrate the deck addition and new stairway into the existing decking. The new deck portion and stairway have been partially erected after starting the project of replacing the old deteriorating deck stairs which were originally located 24 ft from the bluff and 20 ft from the north side lot line. The purpose of the new deck stair design was to replace existing deck stairway with safer and more compact wrap -around version allowing for a mid- flight landing for better ease of use and providing a landing entrance to access the fully fenced in side portion of our lot. The new deck and pool are now located 20 ft from the bluff; and the deck and replacement stair edge are 17.5 ft from north side lot line, which is 4 ft closer to bluff and 2.5 ft closer to north side lot line than the original stair structure. Our plan is outside the standard ordinance of 30 ft pool setback and 100 ft structure setback from bluff and 20 ft structure setback from the side lot line. Originally, we did consider other spaces on the lot for pool and deck location, yet no other location would afford full southwest sun exposure for enhanced pool heating, convenient access to current decking structure; or compliance with other side yard setbacks, as well as other lot features preventing placement including electrical utility lines and heavy tree coverage to the north side and northeast front yard, septic drain field to the southeast front yard, and similar set back issues on the south side and southwest aspect of the back portion of the lot. The location of the deck and pool do not detract from the essential character of the street or river view. The deck, stairs and pool do not change the appearance or the integrity of the river bluff itself and are enclosed within an existing 4-foot-high fence perimeter. Additionally, the new deck/stairs design using cedar wood material and placement does not deter from aesthetics or function for the adjacent property to the North side. We hope that you find our request worthy and practical to grant variance from the standard building setback ordinance. Sincerely, HOMES PLUS DESIGNER/BUILDER z9 Proposed Top of Block DFck D i+1 : 17�X. Proposed Garage Floor Proposed Lowest Floor Type of Building - - Property located in Section 24, Township 32, Range 26, Sherburne County, Minnesota LOT SURVEYS t LAND SUR' -REGISTERED UNDER LAWS 7601- 73rd Avenue North Minneapolis, Mi NOTE: Garage dropped total of 6 courses. W O ems° abz.t �y 50 .648.�386>0 175 w t'w \\, \` �>8 7- tp' '4 7 AN 1 s6,.o .__C�2T33-- -- 7-97,88 � 63 � o S o Zo' � & ,4 I / .n18���j��Mlty. f3Ull:[ o` 867, o w N 8E `` Proposed building information must b � ec d with pr ed building plarkj before excavation and constructior b 61The \ Tr Q c only easements shown are from platf¢ bp�w eor infonit.Vtion prov Ve hetabq certify that fhis is a true and ecrypct representation or a „ervey of the (n S bcu6daries of the above described land ana►the location of all buildings and vis- \ oble ercmachments, if any, from cr on said Wid- -Sun by us this 6th day ® a Se tember 96 day 6 � e t� n 7 C ty E Diver Date: August 15, 2022 To: Board of Adjustments From: Suzanne M. Fischer, Environmental/Special Projects Director sVVf Re: FEMA Response to 15488 Fillmore St. NW Request - Community No. 270436 The FEMA letter dated 7.27.2022 documents that the structures on parcel (Lot 3, Block 1, Avon Acres 31d Acres Addition), have been removed from the National Flood Insurance Program (NFIP), and the Special Flood Hazard Area (SFHA). Those being areas inundated by a flood having a 1% change of being equaled or exceeded in any given year. This is a revision from the previous NFIP regulatory floodway and the SFHA. The Federal mandatory flood insurance requirement does not apply. However, the lender has the option to continue the flood insurance requirement to protect its financial risk on a loan. Oti4A °Federal Emergency Management Agency '�ND SEG Washington, D.C. 20472 t THE HONORABLE JOHN J. DIETZ MAYOR, CITY OF ELK RIVER 13065 ORONO PARKWAY ELK RIVER, MN 55330 DEAR MR. DIETZ: July 27, 2022 CASE NO.: 22-05-2525A COMMUNITY: CITY OF ELK RIVER, SHERBURNE COUNTY, MINNESOTA COMMUNITY NO.: 270436 This is in reference to a request that the Federal Emergency Management Agency (FEMA) determine if the property described in the enclosed document is located within an identified Special Flood Hazard Area, the area that would be inundated by the flood having a 1-percent chance of being equaled or exceeded in any given year (base flood), on the effective National Flood Insurance Program (NFIP) map. Using the information submitted and the effective NFIP map, our determination is shown on the attached Letter of Map Revision (LOMR) Floodway Determination Document. This determination document provides additional information regarding the effective NFIP map, the legal description of the property and our determination. Additional documents are enclosed which provide information regarding the subject property and LOMRs. Please see the List of Enclosures below to determine which documents are enclosed. Other attachments specific to this request may be included as referenced in the Determination/Comment document. If you have any questions about this letter or any of the enclosures, please contact the FEMA Map Insurance eXchange (FMIX) toll free at (877) 336-2627 (877-FEMA MAP) or by letter addressed to the Federal Emergency Management Agency, LOMC Clearinghouse, 3601 Eisenhower Avenue, Suite 500, Alexandria, VA 22304-6426. Sincerely, Patrick "Rick" F. Sacbibit, P.E., Branch Chief Engineering Services Branch Federal Insurance and Mitigation Administration LIST OF ENCLOSURES: LOMR-FW DETERMINATION DOCUMENT (REMOVAL) cc: State/Commonwealth NFIP Coordinator Community Map Repository Region Ms. Karin Filip Federal Emergency Management Agency Na�°4 Washington, D.G. 20472 ADDITIONAL INFORMATION REGARDING LETTERS OF MAP AMENDMENT When making determinations on requests for Letters of Map Amendment (LOMAs), the Department of Homeland Security's Federal Emergency Management Agency (FEMA) bases its determination on the flood hazard information available at the time of the determination. Requesters should be aware that flood conditions may change or new information may be generated that would supersede FEMA's determination. In such cases, the community will be informed by letter. Requesters also should be aware that removal of a property (parcel of land or structure) from the Special Flood Hazard Area (SFHA) means FEMA has determined the property is not subject to inundation by the flood having a 1-percent chance of being equaled or exceeded in any given year (base flood). This does not mean the property is not subject to other flood hazards. The property could be inundated by a flood with a magnitude greater than the base flood or by localized flooding not shown on the effective National Flood Insurance Program (NFIP) map. The effect of a LOMA is it removes the Federal requirement for the lender to require flood insurance coverage for the property described. The LOMA is not a waiver of the condition that the property owner maintain flood insurance coverage for the property. Only the lender can waive the flood insurance purchase requirement because the lender imposed the requirement. The property owner must request and receive a written waiver from the lender before canceling the policy. The lender may determine, on its own as a business decision, that it wishes to continue the flood insurance requirement to protect its financial risk on the loan. The LOMA provides FEMA's comment on the mandatory flood insurance requirements of the NFIP as they apply to a particular property. A LOMA is not a building permit, nor should it be construed as such. Any development, new construction, or substantial improvement of a property impacted by a LOMA must comply with all applicable State and local criteria and other Federal criteria. If a lender releases a property owner from the flood insurance requirement, and the property owner decides to cancel the policy and seek a refund, the NFIP will refund the premium paid for the current policy year, provided that no claim is pending or has been paid on the policy during the current policy year. The property owner must provide a written waiver of the insurance requirement from the lender to the property insurance agent or company servicing his or her policy. The agent or company will then process the refund request. Even though structures are not located in an SFHA, as mentioned above, they could be flooded by a flooding event with a greater magnitude than the base flood. In fact, more than 25 percent of all claims paid by the NFIP are for policies for structures located outside the SFHA in Zones B, C, X (shaded), or X (unshaded). More than one-fourth of all policies purchased under the NFIP protect structures located in these zones. The risk to structures located outside SFHAs is just not as great as the risk to structures located in SFHAs. Finally, approximately 90 percent of all federally declared disasters are caused by flooding, and homeowners insurance does not provide financial protection from this flooding. Therefore, FEMA encourages the widest possible coverage under the NFIP. LOMAENC-1 (LOMA Removal) LOMAs are based on minimum criteria established by the NFIP. State, county, and community officials, based on knowledge of local conditions and in the interest of safety, may set higher standards for construction in the SFHA. If a State, county, or community has adopted more restrictive and comprehensive floodplain management criteria, these criteria take precedence over the minimum Federal criteria. In accordance with regulations adopted by the community when it made application to join the NFIP, letters issued to amend an NFIP map must be attached to the community's official record copy of the map. That map is available for public inspection at the community's official map repository. Therefore, FEMA sends copies of all such letters to the affected community's official map repository. When a restudy is undertaken, or when a sufficient number of revisions or amendments occur on particular map panels, FEMA initiates the printing and distribution process for the affected panels. FEMA notifies community officials in writing when affected map panels are being physically revised and distributed. In such cases, FEMA attempts to reflect the results of the LOMA on the new map panel. If the results of particular LOMAs cannot be reflected on the new map panel because of scale limitations, FEMA notifies the community in writing and revalidates the LOMAs in that letter. LOMAs revalidated in this way usually will become effective 1 day after the effective date of the revised map. Page 1 of 2 Date: July 27, 2022 Case No.: 22-05-2525A LOMR-FW �ti4A�1F� �_ Federal Emergency Management Agency 0��.. .. Washington, D.C. 20472 4. �tAND LETTER OF MAP REVISION FLOODWAY DETERMINATION DOCUMENT (REMOVAL) COMMUNITY AND MAP PANEL INFORMATION LEGAL PROPERTY DESCRIPTION CITY OF ELK RIVER, Lot 3, Block 1, Avon Acres 3rd Acres Addition, as described in the SHERBURNE COUNTY, Mortgage recorded as Document No. 682436, in the Office of the MINNESOTA Recorder, Sherburne County, Minnesota COMMUNITY COMMUNITY NO.: 270436 NUMBER:27141CO395F AFFECTED MAP PANEL DATE: 11/16/2011 FLOODING SOURCE: MISSISSIPPI RIVER APPROXIMATE LATITUDE & LONGITUDE OF PROPERTY:45.252272,-93.523700 SOURCE OF LAT & LONG: LOMA LOGIC DATUM: NAD 83 DETERMINATION OUTCOME 1%ANNUAL LOWEST LOWEST HAT IS REMOVED CHANCE ADJACENT LOT LOT BLOCK/ SUBDIVISION STREET FROM THE SFHA FLOOD FLOOD GRADE ELEVATION SECTION ZONE ELEVATION ELEVATION (NAVD 88) (NAVD 88) (NAVD 88) 3 1 Avon Acres 3rd 15488 Fillmore Street Structure X -- 866.6 feet -- Addition NW (Residence) (unshaded) Special Flood Hazard Area (SFHA) - The SFHA is an area that would be inundated by the flood having a 1-percent chance of being equaled or exceeded in any given year (base flood). ADDITIONAL CONSIDERATIONS (Please refer to the appropriate section on Attachment 1 for the additional considerations listed below.) INADVERTENT INCLUSION FLOODWAY 1 SUPERSEDES PREVIOUS DETERMINATION STATE LOCAL CONSIDERATIONS is document provides the Federal Emergency Management Agency's determination regarding a request or a Letter of Map Revision tor the property described above. Using the information submitted and the effective National Flood Insurance Program (NFIP) map, we have determined that the structure(s) on the property(ies) is/are not located in the NFIP regulatory floodway or the SFHA, an area inundated by the flood having a 1-percent chance of being equaled or exceeded in any given year (base flood). This document revises the effective NFIP map to remove the subject property from the NFIP regulatory floodway and the SFHA located on the effective NFIP map; therefore, the Federal mandatory flood insurance requirement does not apply. However, the lender has the option to continue the flood insurance requirement to protect its financial risk on the loan. This determination is based on the flood data presently available. The enclosed documents provide additional information regarding this determination. If you have any questions about this document, please contact the FEMA Mapping and Insurance eXchange (FMIX) toll free at (877) 336-2627 (877-FEMA MAP) or by letter addressed to the Federal Emergency Management Agency, LOMC Clearinghouse, 3601 Eisenhower Avenue, Suite 500, Alexandria, VA22304-6426. Patrick "Rick" F. Sacbibit, P.E., Branch Chief Engineering Services Branch Federal Insurance and Mitigation Administration Page 2 of 2 Date: July 27, 2022 Case No.: 22-05-2525A LOMR-FW �ti4A�1F� �_ Federal Emergency Management Agency 0��.. .. Washington, D.C. 20472 4. �tAND LETTER OF MAP REVISION FLOODWAY DETERMINATION DOCUMENT (REMOVAL) ATTACHMENT 1 (ADDITIONAL CONSIDERATIONS) INADVERTENT INCLUSION IN THE FLOODWAY 1 (PORTIONS OF THE PROPERTY REMAIN IN THE FLOODWAY) (This Additional Consideration applies to the preceding 1 Property.) A portion of this property is located within the National Flood Insurance Program (NFIP) regulatory floodway for the flooding source indicated on the Determination Document, while the subject of this determination is not. The NFIP regulatory floodway is the area that must remain unobstructed in order to prevent unacceptable increases in base flood elevations. Therefore, no construction may take place in an NFIP regulatory floodway that may cause an increase in the base flood elevation, and any future construction or substantial improvement on the property remains subject to Federal, State/Commonwealth, and local regulations for floodplain management. The NFIP regulatory floodway is provided to the community as a tool to regulate floodplain development. Therefore, the NFIP regulatory floodway modification described in the Determination Document, while acceptable to the Federal Emergency Management Agency (FEMA), must also be acceptable to the community and adopted by appropriate community action, as specified in Paragraph 60.3(d) of the NFIP regulations. Any proposed revision to the NFIP regulatory floodway must be submitted to FEMA by community officials. The community should contact either the Regional Director (for those communities in Regions I -IV, and VI-X), or the Regional Engineer (for those communities in Region V) for guidance on the data which must be submitted for a revision to the NFIP regulatory floodway. Contact information for each regional office can be obtained by calling the FEMA Mapping and Insurance eXchange toll free at (877) 336-2627 (877-FEMA MAP) or from our web site at http://www.fema.gov/about/regoff.htm. SUPERSEDES OUR PREVIOUS DETERMINATION (This Additional Consideration applies to all properties in the LOMR-FW DETERMINATION DOCUMENT (REMOVAL)) This Determination Document supersedes our previous determination dated 4/24/2012, for the subject property. STATE AND LOCAL CONSIDERATIONS (This Additional Consideration applies to all properties in the LOMR-FW DETERMINATION DOCUMENT (REMOVAL)) Please note that this document does not override or supersede any State or local procedural or substantive provisions which may apply to floodplain management requirements associated with amendments to State or local floodplain zoning ordinances, maps, or State or local procedures adopted under the National Flood Insurance Program. This attachment provides additional information regarding this request. If you have any questions about this attachment, please contact the FEMA Mapping and Insurance eXchange (FMIX) toll free at (877) 336-2627 (877-FEMA MAP) or by letter addressed to the Federal Emergency Management Agency, LOMC Clearinghouse, 3601 Eisenhower Avenue, Suite 500, Alexandria, VA 22304-6426. Patrick "Rick" F. Sacbibit, P.E., Branch Chief Engineering Services Branch Federal Insurance and Mitigation Administration