Loading...
HomeMy WebLinkAboutResolution No. 2009-028 Denying a Front Yard Setback Variance at 6120 Brookview Avenue RESOLUTION NO. 2009-28 DENYING A FRONT YARD SETBACK VARIANCE o� AT 6120 BROOKVIEW AVENUE • v a City of Edina BE IT RESOLVED by the City Council of the City of Edina, Minnesota, as follows: Section 1. BACKGROUND. 1.01 On January 14, 2009 JMS Custom Homes filed an application with the City for a 7.14 front yard setback variance at 6120 Brookview Avenue. The application lists as the legal description of the property Lot 6 Block 23 Fairfax, but the Applicant owns the adjoining lot 5. City Code Section 850.07 Subd. 20(C) provides that abutting non- conforming lots in common ownership at any time after October 22, 1951 are deemed one lot. Both Lots 5 and 6 are non-conforming in size and are therefore considered one lot under the City's zoning ordinance. The variance application is deemed to be for the combined lot. 1.02 On January 28, 2009 the Zoning Board of Appeals conducted a public hearing and considered the application for the setback variance. The Applicant was present and was represented by legal counsel. Following the close of the public hearing the Board • unanimously denied the variance application based upon written Finding of Fact that the Board adopted. 1.03 On January 29, 2009 the Applicant filed a written appeal of the Board's decision to the City Council. 1.04. On February 17, 2009 the City Council conducted a public hearing on the appeal. Following the close of the hearing, the City Council adopted this resolution denying the variance application. 1.05 The request is for an after-the-fact variance for a home under construction. 1.06 A building permit was issued on Friday, December 5, 2008 for the home. The Applicant moved the home that was previously on the property off the property to a different lot. 1.07 The permit was issued based upon a survey prepared by the Applicant's surveyor which indicates that the required front yard setback based upon the average setback of homes on that side of the block was 31.6 feet. The building permit was issued based on the survey, and the home was constructed with a 31.6 foot setback. 1.08 The City received a complaint on January 5, 2009; regarding the front yard setback of the new home. The Applicant was promptly notified. The Applicant chose to continue • construction. City Hall 952-927-8861 4801 WEST 50TH STREET FAX 952-826-0390 EDINA, MINNESOTA, 55424-1394 www.cityofedina.com TTY 952-826-0379 RESOLUTION NO. 2009-28 Page 2 • 1.09 The property owner's survey company, Landform, was contacted on January 5, 2009, the day the complaint was received, to determine how the setback was calculated. Landform was unable to respond to the question. The new data subsequently provided by Landform shows the average front yard setback of the seven homes located along the block excluding the subject home is 38.7 feet. The average is calculated by adding up the front yard setbacks of the seven homes and dividing that number by seven. The home under construction encroaches into the required front yard setback by 7.14 feet. The building permit was issued in error based upon the incorrect information furnished by the Applicant. 1.10 A "stop work" order was posted on the property on Wednesday, January 7, 2009. The owner of the property was notified that resolution of this issue may be pursued by either obtaining a variance to allow the house to remain at the same front yard setback or by modifying the construction to maintain the required front yard setback. 1.11 JMS Custom Homes filed a law suit against the City of Edina, and obtained an order granting a temporary injunction that allows JMS to continue work on the home. Section 2. FINDINGS. • 2.01 The proposal does not meet the required standards for a variance, because: 1) The proposal does not meet the variance findings of Section 850.04 Subd.1.F of the Zoning Ordinance. 2) The Applicant admits that if it had not started construction the required setback would not be an "undue hardship." The City's setback requirements are therefore not creating a hardship. The hardship is solely the result of the surveyor's error. The Applicant chose to continue with the construction knowing that a variance was needed. 3) There is no undue hardship. The City's regulations do not prevent a reasonable use of the property. The proposed new home can be moved or altered to meet the required front yard setback of 38.7 feet. The Applicant moved the home that was previously on the property to a different lot. The new home can be moved back 7.14 feet. 4) The only basis for the variance is the disruption to the Applicant's marketing plan and the cost of moving the home 7.14 feet. Economic considerations alone, however, are not the basis for approval of a variance. 5) The Applicant's plight is not due to circumstances unique to the property. There is • nothing unique about the property. 6) The hardship is self-created resulting from the Applicant's miscalculation of the required set back. RESOLUTION NO. 2009-28 Page 3 • 7) The variance would alter the essential character of the neighborhood by disrupting the average setback of the homes on the block. 8) The variance would not meet the intent of the ordinance since: a. The setback that would be allowed by the variance would not be consistent with the homes to the south, or the established average setback on the block. b. The new home would be built in front of the home which has a setback 63 feet from the street, thereby blocking the front view to the north. c. The intent of the ordinance is to provide uniform front yard setbacks on a block. Having one home built 31.5 feet closer to the street than the adjacent home does not meet the intent in this instance. 9) Balancing the equities, the variance must be denied. Moving the home back on the lot is feasible. The out of character setback that would be allowed if the variance is granted would be permanent. The Applicant is an experienced, professional custom home builder, which has constructed over forty new homes in Edina. The home has not been sold to an end user. The Applicant moved one home off the property to construct the home now under construction and therefore has the • knowledge and ability to move the new home. The home that was removed was centered on the lot. The location of the new home a few feet from the property line, although legal, infringes on the privacy of the historic home on the adjoining lot to the south and the setback if approved would worsen the situation. Section 3. DENIAL. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Edina, the requested front yard setback variance of 7.14 feet for property cated at 6120 Brookview Avenue is denied. ADOPTED by the City Council on February 17, 2009. ATTEST: & - ulZ Debra A. Mangen, C ty Cl es B. Hovland, Mayor • RESOLUTION NO. 2009-28 Page 4 STATE OF MINNESOTA ) COUNTY OF HENNEPIN )SS CITY OF EDINA ) CERTIFICATE OF CITY CLERK I, the undersigned duly appointed and acting City Clerk for the City of Edina do hereby certify that the attached and foregoing Resolution was duly adopted by the Edina City Council at its Regular Meeting of February 17, 2009, and as recorded in the Minutes of said Regular Meeting. WITNESS my hand and seal of said City this day of , 2009. City Clerk •