05-0291R
REPLACEMENT
RESOLUTION AFFIRMING THE DECISION OF THE BOARD OF ZONING APPEALS TO DENY A REQUEST BY MENARD, INC., FOR A VARIANCE TO ALLOW A GROUND SIGN TO EXCEED THE HEIGHT LIMITATION FOR THE INSTALLATION OF A 75 FOOT HIGH, 250 SQUARE FOOT GROUND SIGN ON PROPERTY LOCATED AT 503 NORTH 50TH AVENUE WEST.

BY COUNCILOR GILBERT:

     WHEREAS, Shaun Struck, of Menard, Inc., has appealed to the city council the decision of the board of zoning appeals denying a request for a variance to allow a ground sign to exceed the 25 feet height limitation for the installation of a 75 feet high, 250 square feet ground sign on property located at 503 North 50th Avenue West; and

     WHEREAS, Chapter 44-27(c) states that ground signs may be a maximum height of 25 feet; and

     WHEREAS, Chapter 44-35(a) limits the power to grant a variance and requires a showing of those conditions specified in Chapter 50-47(a) and (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 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(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

     (c)  The sole basis for the request was the applicant’s desire to increase revenues from a commercial activity and such mere convenience of the applicant is a prohibited basis upon which a variance may be granted; and

     WHEREAS, the city council has considered this appeal and the documents and statements presented to it and made a part of the record, hereby finds as follows:

     (a)  There does not exist 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)  No hardship exists; and

     (c)  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

     (d)  A variance is not necessary for the preservation and enjoyment of a substantial property right.

     NOW, THEREFORE, BE IT RESOLVED, by the city of Duluth that the board of zoning appeals’ decision of April 26, 2005, is hereby affirmed by the city council and the appeal is denied.


STATEMENT OF PURPOSE:  This ordinance affirms the decision of the board of zoning appeals to deny a variance to allow a ground sign to exceed the 25 foot height limitation for the installation of a 75 foot high, 250 square foot ground sign on property located at 503 North 50th Avenue West. Originally, the applicant requested a 100 foot high sign. On October 25, 2004, the council sent the resolution back to the administration for a change to a 75 foot high sign. The city council, pursuant to its legislative authority, has promulgated legislation which controls both the process for the granting of variances and the factual circumstances which must be present in order to support a variance. The variance at issue requests relief from the provisions of City Code Chapter 44-27, paragraph (c), which places restrictions on ground signs. City Code Chapter 44-35, paragraph (a), provides for variances from the strict application of the Code, but mandates a showing of the existence of those factors set forth in City Code Chapter 50-47, paragraph (b), to support a variance. The City Code does not grant to the board of zoning appeals or the city council the authority to waive these mandatory requirements, City Code only provides authority to grant a variance if all mandatory requirements are met. Therefore, in order to reverse the decision of the board of zoning appeals, the record before the city council must contain evidence which would allow the city council to reasonably conclude that all of the mandatory circumstances necessary for the granting of a variance as set forth in City Code Chapter 50-47, paragraph (b), have been met. The BZA considered the amended request of a 75 foot high sign at its meeting on April 26, 2005. It concluded that no hardship was proven to exist that prevented the applicant from complying with the limitations of the sign ordinance, and, therefore, the BZA moved to recommend that the city council deny the amended request for a variance.

 

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