BY COUNCILOR STENBERG:01-0571R
RESOLUTION AFFIRMING THE DECISION OF THE BOARD OF ZONING APPEALS TO DENY A REQUEST TO CONSTRUCT THREE DWELLINGS ON PARCELS OF PROPERTY REDUCING THE REQUIRED LOT AREA FOR EACH DWELLING FROM 5,000 SQUARE FEET TO 4,687.5 SQUARE FEET AND THE REQUIRED FRONTAGE ON A MAINTAINABLE STREET FOR EACH LOT FROM 50' TO 37.5', TO REDUCE THE MINIMUM SIDE YARD SETBACK FROM 5' TO 4.5' AND THE AGGREGATE SIDE YARD SETBACK FROM 12' TO 9.5' ON PROPERTY LOCATED AT 423 N. 51ST AVE. W., 425 N. 51ST AVE. W. AND 427 N. 51ST AVE. W.
WHEREAS, Deede Westermann, Executive Director of SVCNDA (Spirit Valley Citizens' Neighborhood Development Association) has appealed the decision of the Board of Zoning Appeals to deny variances to construct three dwellings on parcels of property reducing the required lot area for each dwelling from 5,000 square feet to 4,687.5 square feet and the required frontage on a maintainable street for each lot from 50' to 37.5', to reduce the minimum side yard setback from 5' to 4.5' and the aggregate side yard setback from 12' to 9.5' on property located at 423 N. 51st Ave. W., 425 N. 51st Ave. W. and 427 N. 51st Ave. W; and
WHEREAS, the property is located within an R-2 Two-Family Residential zoning district; and
WHEREAS, Chapter 50-20.2 requires a minimum lot size of 5,000 square feet and 50' minimum frontage for dwellings in an R-2 zoning district; and
WHEREAS, Chapter 50-23(f) states that when a lot of record on July 14, 1958, is less than 50' in width, no side yard shall be less than 5'; and
WHEREAS, Chapter 50-23(i) requires a minimum aggregate side yard setback of 12'; 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WHEREAS, the tool which could allow this project, the community unit plan has been repealed; and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 three dwellings on parcels of property by reducing the required lot area for each dwelling from 5,000 square feet to 4,687.5 square feet and the required frontage on a maintainable street for each lot from 50' to 37.5', to reduce the minimum side yard setback from 5' to 4.5' and the aggregate side yard setback from 12' to 9.5' cannot be made in this case.
NOW, THEREFORE, BE IT RESOLVED, that the city council hereby finds denying the requested variance would not create a hardship to the property in that no special circumstances apply to the property which are peculiar to that property or do not apply generally to other land in the vicinity and it is not necessary to grant the variance for the preservation and enjoyment of a substantial property right.
FURTHER 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.