BY COUNCILOR STENBERG:01-0569R
RESOLUTION AFFIRMING THE DECISION OF THE BOARD OF ZONING APPEALS TO DENY VARIANCES TO CONSTRUCT 30 DWELLING UNITS CONSISTING OF 22 RENTAL FLATS AND 8 UNITS ABOVE GARAGES ON PROPERTY LOCATED AT 58TH AVENUE WEST AND NICOLLET STREET (IRVING TOWNHOMES, LLC).
WHEREAS, Irving Town Homes, LLC has appealed the decision of the board of zoning appeals to deny variances to construct 30 dwelling units consisting of 22 rental flats and eight units above garages, requesting more than one main building on a lot on property located at 58th Avenue West and Nicollet Street, specifically:
Bldg. 1: Reduce minimum frontage from 50' to 40', minimum lot area per unit from 1500 square feet to 1000 square feet, minimum side yard setback from 7' to 5', aggregate side yard setback from 12' to 10', and minimum rear yard from 25' to 5'WHEREAS, the property is located within an R-3 Apartment Residential zoning district; and
Bldg. 2: Reduce minimum front yard setback from 25' to 10'
Bldgs. 3, 4 & 9: No lot frontage on maintainable street
Bldgs. 5 & 8: Reduce minimum front yard from 25' to 10'
Bldgs. 6 & 7: Reduce minimum front yard from 25' to 10', side yard corner lot from 15' to 10'
Bldg. 10: Accessory building on separate lot from the main building, side yard setback from 2.5' to 1'; and
WHEREAS, Chapter 50-11 allows no more than one main building on one lot; and
WHEREAS, Chapter 50-20.2 requires a minimum lot size of 5,000 square feet, 50' minimum frontage on a maintainable street, 7' minimum side yard setback, 12' minimum aggregate side yard setback, and a 25' minimum rear yard setback; and
WHEREAS, Chapter 50-72(h) requires that an accessory building shall be located on the same lot as the main building and shall be constructed at the same time or after the construction of the main building; and
WHEREAS, Chapter 50-24(b) requires a 2.5' minimum side yard setback for accessory buildings; and
WHEREAS, the board of zoning appeals denied the variance requests because it found that no hardship to the property existed which constituted special circumstances or conditions applying to the building or land in question which was peculiar to such property and did not apply generally to other land or buildings in the vicinity, and because it was not necessary for the preservation and enjoyment of a substantial property right and not merely a convenience of the applicant; and
WHEREAS, the board of zoning appeals is not a legislative body and cannot rewrite current code; and
WHEREAS, the granting of this variance was not justified under the existing verbiage of the zoning code; and
WHEREAS, the tool which could allow this project, the community unit plan has been repealed; and
WHEREAS, dwellings could be built on the site which would comply with current code; and
WHEREAS, pursuant to Section 50-47 of the Duluth City Code, 1959, as amended, in order to grant this appeal and issue the requested variance, the city council would be required to find that by reason of exceptional narrowness, shallowness or shape of the property, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of the property, the strict application of the terms of Chapter 50 would result in peculiar and exceptional practical difficulties to or exceptional or undue hardship upon the owner of such property and that such relief may be granted without substantial detriment to the public good and without substantially impairing the intent of the zoning plan and the zoning Code; in addition the council must find that special circumstances or conditions applying to the building or land in question which are peculiar to such property or immediately adjoining property, and do not apply generally to other land or buildings in the vicinity, that the granting of the application is necessary for the preservation and enjoyment of a substantial property right and not merely to serve as a convenience to the applicant, and that authorizing of the variance will not impair an adequate supply of light and air to adjacent property or unreasonably increase the congestion in public streets or increase the danger of fire or imperil the public safety or unreasonably diminish or impair established property values within the surrounding areas or in any other respect impair the health, safety, comfort, morals or general welfare of the inhabitants of the city; and
WHEREAS, the city council has considered this appeal and agrees with the decision of the board of zoning appeals that the granting of a variance to allow the construction of 30 dwelling units consisting of 22 rental flats and 8 units above garages, as specified above, cannot be made in this case.
NOW, THEREFORE, BE IT RESOLVED, by the city of Duluth that the board of
zoning appeals' decision of July 24, 2001, is hereby affirmed by the city
council, and the appeal is denied.