01-0576R

RESOLUTION REVERSING THE DECISION OF THE BOARD OF ZONING APPEALS TO CONSTRUCT A TWO FAMILY DWELLING REDUCING THE REQUIRED LOT AREA FOR A DUPLEX FROM 6,000 SQUARE FEET TO 5,625 SQUARE FEET, REDUCING THE FRONT YARD SETBACK FROM 25' TO 14', THE REAR YARD SETBACK FROM 25' TO 5' AND THE CORNER LOT SIDE YARD SETBACK FROM 15' TO 12' ON PROPERTY LOCATED AT 427 N. 52ND AVE. W.

BY COUNCILOR STENBERG:

        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 a two family dwelling reducing the required lot area for a duplex from 6,000 square feet to 5,625 square feet, reducing the front yard setback from 25' to 14', the rear yard setback from 25' to 5' and the corner lot side yard setback from 15' to 12' on property located at 427 N. 52nd 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 3,000 square feet per family and a minimum front yard and rear yard setback of 25' in an R-2 zoning district; and

        WHEREAS, Chapter 50-23(a) requires a minimum side yard setback on a corner lot of 15' for dwellings; 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        WHEREAS, the tool which could allow this project, the community unit plan has been repealed; and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.

        NOW, THEREFORE BE IT RESOLVED, that the city council finds that, by reason of         (condition of land)       , strict application of the zoning code to this property would result in           (practical difficulty or undue hardship)        to the owner, that relief therefrom may be granted without substantial detriment to the public good and without substantially impairing the intent of the zoning plan and the zoning code, 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 in that in 2000 the city council granted a similar variance to Northern Land Trust, and that granting of the application is necessary for the preservation and enjoyment of a substantial property right, the right of 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.

        FURTHER RESOLVED, that the board of zoning appeals' decision of July 24, 2001, is hereby reversed by the city council, and the appeal is granted.



STATEMENT OF PURPOSE:  This resolution reverses the decision of the board of zoning appeals to deny a zoning variance to construct a two family dwelling reducing the required lot area for a duplex from 6,000 square feet to 5,625 square feet, reducing the front yard setback from 25' to 14', the rear yard setback from 25' to 5' and the corner lot side yard setback from 15' to 12' on property located at 427 N. 52nd Ave. W. The council disagreed with the board's findings and found that a physical characteristic peculiar to the property prevented the owner from exercising a substantial property right, and that granting a variance would not result in negative impacts on the surrounding neighborhood. The council determined that granting a variance would not violate the requirements of the zoning code.