Minutes of the Monday, March 12, 2012

MINUTES OF THE MONDAY, MARCH 12, 2012

BOARD OF ADJUSTMENT HEARING – 6:00 PM

The Kandiyohi County Board of Adjustment met on Monday, March 12, 2012 at 6:00 PM in the Commissioners Room at the Kandiyohi county Health & Human Services Building located at 2200 – 23rd St NE, Willmar, Minnesota. Members present were Steve Freese, Edward Huseby, Suzanne Napgezek, and Mark Mertens. Also present was Zoning Administrator, Gary Geer, and Assistant Zoning Administrator, Eric Van Dyken.

Chair Mertens opened the meeting at 6:00 pm.

Minutes of the previous hearing were approved as mailed on a motion by Huseby, second by Freese.

A hearing was held on the application of William & Ann Latham, Government Lot 2, lying southerly of CSAH No. 30 excepting all that part thereof platted as Northwood Beach, Section 24, Township 121, Range 34, New London Township. Applicant requests to subdivide a lot, smaller than allowed by ordinance, on a General Development Lake (Green) located in an R-1 Shoreland Residential District. Ann Latham, applicant, was present and distributed a handout to the members of the Board. Latham read from the statutory language regarding the granting of a variance and noted that no use is requested that is not allowed in the zone. Latham commented that the proposed lot exceeds width and area requirements. Latham stated that she feels that the plight of the landowners is due to circumstances beyond their control, as they did not know about the proposed construction of a trail, which moved the centerline of the road. Latham expounded further on the history of the road re-construction. Latham called attention to maps that illustrated storm sewer ponds and trail and road locations. Latham read a portion of a letter of support from Commissioner Dennis Peterson. Latham stated that she feels that another platted lot would enhance the character of the area, also noting the presence of other area lots that are smaller. Latham asserted that there is a small nearby lot that has been approved by the Zoning Office as an access lot for 4 non-riparian lots. Geer corrected Latham by noting that the lot in question is not approved as a controlled access lot, but rather has the same allowances as any established lot (one dock and four boat lifts). Latham noted that a number of letters of support have been submitted. Latham spoke about their history of concern regarding activities on this area of the lake. Latham reiterated her argument that the applicants have shown that the standards needed to approve a variance have been met. Napgezek questioned Latham on the location of the road prior to reconstruction and how the moving of the road had an impact on lot size. Napgezek pointed out that the movement of the road away from the lake provided the applicants with more land for development along the lake. Neil & Jackie Kaufenberg, neighboring property owners to the west, stated that they wonder what the purpose of the proposal is. Latham stated that the purpose of plat is for estate planning, noting also that the property is large and a large tax burden. Kathy Haen questioned whether the proposed platting will help alleviate the activities of concern in the lake. Latham answered that she does not believe that the activity on the lake will change. Kaufenberg noted that the plat may move activity in the lake closer to their lot. Jim Butterfield, District 1 County Commissioner, stated that he agrees with the letter from Dennis Peterson, noting that he feels this is a reasonable request and that the property will look nicer if developed. Butterfield also commented that further development of the area may discourage some of the activity on the lake and make the lake safer. Huseby commented that the proposal put forth by the applicants is not the only option for development of the property. Huseby noted that the applicants can develop less. Huseby stated that there is not much area for building a structure on proposed lot 4. Huseby further noted that the allowable building area is approximately 360 square feet, which is not enough area to build a house. Latham stated that the small building area is caused by the required 100 foot setback, which she feels is much greater than what is required on most urban roads. Latham noted that her husband has spoken with County Engineer Gary Danielson about reducing the setback and that Danielson is supportive of that idea. Latham stated that they may have to have the setback reduced, and that they would be willing to pursue that option. Huseby questioned if supporting this variance would require issuance of an additional variance to develop the lot. Geer stated that it would require a variance under current standards. Huseby asked Latham why they don’t plat 3 lots. Latham stated that platting 3 lots is not possible and leaving the area of proposed lot 4 undeveloped would be detrimental to the other 3 lots. Huseby noted that the applicants could re-draw the proposed lots lines and that the area of the proposed lot 4 does not have to be undeveloped. Latham noted that the proposed lots already are exceeding square footage requirements. Latham stated that they can’t make up the money they would lose by adding more land to the other 3 lots. Mertens noted that when the road moved it gave the applicants one more lot to develop. Latham circulated a map illustrating how much room might be available for building if the setback was 65 feet. Geer noted receipt of letters in the file for and against the proposal, also noting a phone call in support of the proposal. Geer corrected an earlier assertion made by Latham that the proposed lot is only about 6 feet short of meeting the depth requirement. Geer noted that there is a need for the average lot depth to be 190 feet, not one single side. Geer stated that the Board at this time needs to recognize and deal with the current standards of the ordinance. Geer commented that the Board must make all findings in the affirmative to grant the request. Latham noted that their due process is to proceed to district court, but asked if they can come back with another request if the setback from the road is changed. Geer noted that the Latham’s could come back with another request, but noted that the variance request would still be for lot depth. Latham asked if the Board is mostly concerned about the area available to build on. Huseby stated not necessarily. Napgezek stated that the intent of the ordinance is to protect the quality of the lake. Napgezek comment that she feels that the lots can be sold in a different configuration. Latham noted that any new development must meet watershed district regulations. Jackie Kaufenberg asked if each new lot is allowed a dock. Geer responded that each parcel is allowed one dock and 4 boat lifts. Neil Kaufenberg asked a question about location of buoys. Geer stated that regulation of buoys is outside of the realm of planning and zoning, noting that the Sheriff’s water patrol should be contacted. Jackie Kaufenberg stated that she talked to Joan Holm, a neighbor who was opposed to the proposal, but unable to attend this hearing. Huseby stated that all 6 findings questions must be answered in the affirmative to grant the request and that he was unable to make such a finding. Motion by Huseby, second by Napgezek to deny the request based on the following findings as presented by staff:

Is the variance in harmony with the general purposes and intent of the official control? Why or Why not?

The Board of Adjustment finds that the variance request is not in harmony with the general purpose and intent of the official controls. The Board finds that the general purpose and intent of the official controls in the shoreland area is to provide standards for orderly subdivision and development of shoreland and to that extent the official controls establish minimum lot sizes and setbacks intended to achieve that goal. The Board finds that the Subdivision Ordinance requires (Chapter 4, Section 4-5-4, #3 and Section 4-6-4, #5) that proposed subdivisions illustrate all required setbacks and the resulting building envelope in order to enable review of available building space. The Board finds that the building envelope illustrated for the proposed substandard lot is not sufficient to allow for any substantial structure while observing standard setbacks. The Board finds that the Subdivision Ordinance also prohibits (Chapter 2, Section 2-4.7) the creation of new lots “where a variance will subsequently be required in order to use a lot for its intended purpose.” The Board finds that approval of this lot with a building envelope that is not significant enough to fit a residence would not serve the general purpose and intent of the official controls. Additionally, the Board finds that the existence of substandard lots on Green Lake and throughout the county, rather than provide reason for deviation from standards as asserted by the applicants, instead serves as impetus for the county to maintain adherence to established standards where deviation would establish further nonconformity for placement of structures.

Is the variance consistent with the comprehensive plan? Why or why not?

The Board of Adjustment finds that the proposed variance is inconsistent with the Comprehensive Plan. The Board notes that the Comprehensive Plan, in striving to achieve sustainable development, states that “planning activities need to establish a balance that allows for new development and protects natural resources at the same time”. More specifically, under the goal of resource conservation, the Comprehensive Plan states that “ordinances should be implemented and enforced that regulate land use near surface water”. The Board finds that in this instance the proper balance of new development and protection of natural resources called for by the Comprehensive Plan is achieved by recognizing the new lots that the applicants can subdivide under current regulations while upholding the current standards and denying the applicants’ desire for an additional lot.

Is the property owner proposing to use the property in a reasonable manner not permitted by the official control?

The Board of Adjustment finds that proposed subdivision of the land for sale and development is unreasonable to the extent that the building envelope resulting from application of standard setbacks does not allow for a reasonable size structure to be built (approximately 360 square feet) for residential purposes.

Is the alleged practical difficulty due to circumstances unique to the property and not created by the property owner? Why or why not?

The Board of Adjustment finds that the applicants have failed to prove their argument that a practical difficulty in meeting the ordinance standards exists because of circumstances related to rebuilding of the road. The Board finds that historically (pre-1999) the road location was actually significantly south of the current location and was moved north, causing the applicants to have additional land that can be subdivided along the lake shore. Additionally, the Board finds that the applicants’ claim that they would have an additional standard lot if the road was 20 feet further north is false. The Board notes that lot depth is not measured at the longest point, but rather is measured as an average of the depth, meaning that the road would have to be 48 feet further north for the area in question to meet lot standards for depth. The Board finds that the applicants’ desire for an additional saleable lot is the sole contributing factor and that the circumstances related to the road location do not support the applicants’ claim of practical difficulties. The Board also does not recognize the applicants’ claim that the 100 foot setback contributes to the practical difficulty, since the Board cannot conclude that the standards adopted by the county themselves cause practical difficulty.

Will the issuance of a variance maintain the essential character of the locality? Why or Why not?

The Board of Adjustment finds that the issuance of the variance will maintain the essential character of the locality. The Board finds one additional lot in and of itself would not substantially change the nature of the area, which is predominantly residential.

Does the alleged practical difficulty involve more than economic considerations? Why or why not?

The Board of Adjustment finds that the alleged practical difficulty involves economic considerations alone. The Board finds that the applicants are able to subdivide and sell several parcels from their existing lake frontage, and that desire for an additional lot is strictly caused by a desire to sell one more lot than is allowed by current lot standards. The Board finds that attempts by the applicants to attribute a practical difficulty to road construction fail to establish that the public road project has established the practical difficulty. The Board also finds that the 20-foot infringement claimed by the applicants does not create the difficulty in establishing an additional lot for sale.

Motion carried.

There being no further business, meeting adjourned at 7:00PM