04-0752R

AS AMENDED

RESOLUTION REVERSING THE DECISION OF THE BOARD OF ZONING APPEALS TO DENY A VARIANCE TO REDUCE THE MINIMUM FRONT YARD SETBACK FROM 25 FEET TO 22 FEET AND THE MINIMUM REAR YARD SETBACK FROM 25 FEET TO 19 FEET FOR THE CONSTRUCTION OF AN EIGHT UNIT CONDOMINIUM/ TOWNHOUSE BUILDING ON PROPERTY LOCATED AT 908-26 LAKE AVENUE SOUTH.


BY COUNCILOR GILBERT:

     WHEREAS, Sola Properties, LLC has applied to the board of zoning appeals for a variance to reduce the minimum front yard setback from 25 feet to 22 feet and the minimum rear yard setback from 25 feet to 19 feet for the construction of an eight unit condominium/townhouse building on property located at 908-26 Lake Avenue South and legally described as Lots 187, 189, 191, 195 & 197, Upper Duluth - Lake Avenue; and

     WHEREAS, Chapter 50-20.2 requires a 25 feet minimum front yard setback and a 25 feet minimum rear yard setback for structures in an R-3, Apartment Residential, zoning district; and

     WHEREAS, Chapter 50-47 outlines the powers of the board to grant a variance and requires a showing of those conditions specified in Chapter 50-47(b); and

     WHEREAS, the board of zoning appeals denied the requested variance because the applicant failed to produce evidence of the existence of the conditions required to obtain a variance and upon the following grounds and reasons:

     (a)  There does not exist an exceptional topographic conditions or other extraordinary and exceptional situation or condition of the piece of property at issue for which the strict application of the terms of the Chapter would result in peculiar and exceptional practical difficulties to or exceptional or undue hardship upon the owner of such property, and

     (b)  The applicant failed to demonstrate the existence of the following two additional mandated requirements of Chapter 50-47, paragraph (b):

           (1)  Special circumstances or conditions applying to the building or land in question which are peculiar to such property and do not apply generally to other land or buildings in the vicinity; and

           (2)  The necessity of the variance in order to preserve the enjoyment of a substantial property right and not merely the convenience of the applicant; and

     WHEREAS, Steven Sola has appealed the aforesaid decision to the Duluth City Council; and

     WHEREAS, the city council has considered this appeal and the documents, records and information provided and, based upon said record, it disagrees with the decision of the board of zoning appeals and finds as follows:

     (a)  By reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of the property, the strict application of the terms of the City Code will result in peculiar and exceptional practical difficulties to, or exceptional or undue hardship upon, the owner of the property; the exceptional condition of the narrowness of multi-family residential (R-3) property caused by being bordered by Lake Superior and Lake Avenue right-of-way as compared to usual depth of multi-family property of 300 to 800 feet; and

     (b)  The following hardship, which would deny the applicant the enjoyment of the property right of developing the property consistent with zoning regulations exists:  the narrowness of the site and inability to even maintain existing densities, with underground parking, in an economic development without increasing impervious surface; and

     (c)  The following special circumstances or conditions applying to the building or land in question are peculiar to such property, and do not apply generally to other land or buildings in the vicinity:  this is R-3 property appropriately devoted to multi-family use, as opposed to the single-family property R-1 zoning on the vast majority of Park Point; and

     (d)  A variance is necessary for the preservation and enjoyment of the substantial property right set out above.

     NOW, THEREFORE, BE IT RESOLVED, by the city of Duluth that the board of zoning appeals’ decision of October 26, 2004, 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 request to reduce the minimum front yard setback from 25 feet to 22 feet and the minimum rear yard setback from 25 feet to 19 feet for the construction of an eight unit condominium/townhouse building on property located at 908-26 Lake Avenue South. The council disagreed with the board’s findings and determined 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.