04-0127R

RESOLUTION AFFIRMING A DECISION OF THE BOARD OF ZONING APPEALS TO DENY THE APPEAL OF THE DECISION OF THE BUILDING INSPECTOR WHICH DENIED THE CERTIFICATE OF OCCUPANCY FOR THE USE OF PROPERTY LOCATED AT 24 EAST WILLOW STREET FOR PRIVATE COMMERCIAL PURPOSES (JOHN K. BAKER, PAUL T. LARSON AND JAMES V. ERLEMEIER, BY HANFT FRIDE, PA).

BY COUNCILOR GILBERT:

WHEREAS, John K. Baker, Paul T. Larson and James V. Erlemeier appealed to the board of zoning appeals the decision of the building inspector to deny a certificate of occupancy for the use of property for private commercial purposes, located at 24 East Willow Street and legally described as the easter;y 125 feet of Lot 8, Block 3, Central Acres; and

WHEREAS, the board of zoning appeals denied the appeal upon the following grounds and reasons:
(a) The property is located in a single-family residential zoning district based upon the provisions of the Section 50-47(a) of the Code and the proposed commercial use is not a permitted use in such zone;
(b) The property was previously owned by St. Louis County and used as a government garage pursuant to a special use permit. The proposed private commercial use is not an allowable use pursuant to such special use permit;
(c) The proposed private commercial use constitutes a request for a use variance which is prohibited by the Municipal Planning Act and the board of zoning appeals has no authority to authorize use variances under Section 50-47 of the Code or M.S.A. 462.357;
(d) The applicant failed to demonstrate the existence of a hardship which would justify the granting of a variance under Section 50-47 of the Code; and

WHEREAS, John K. Baker, Paul T. Larson and James V. Erlemeier have appealed the aforesaid decision to the Duluth City Council; and

WHEREAS, the city council has considered this appeal and hereby agrees with the decision made by the board of zoning appeals pursuant to Sections 50-47(a);

NOW, THEREFORE, BE IT RESOLVED, that the city council of Duluth finds that that the proposed use is not a use within the scope of the special use permit issued to St. Louis County and that the applicant does not have a substantial property right to use of the property for private commercial purposes on property which is located in an R-1 zone.

FURTHER RESOLVED, the council finds that it lacks the legal authority to authorize a use which is prohibited in an R-1 zone.

FURTHER RESOLVED, that the city council of Duluth affirms the board of zoning appeals' decision of January 27, 2004, and the appeal is denied.