05-0347R                                                             REPLACEMENT



     BE IT RESOLVED, that the city council of the city of Duluth, finds that the decision of the planning commission denying the variance request of Jacob and Carla Tamburro is upheld and that the variance shall not be granted upon the following grounds and reasons:

     (a)  Applicants seek city approval for the creation of a lot that does not conform to the minimum area requirements set forth in Chapter 51, Section 29, of the city of Duluth Legislative Code. Chapter 51 does not grant to the planning commission or the city council the authority to authorize the creation of nonconforming lots. Therefore, the city is without legal authority to grant the requested variance;

     (b)  Chapter 51, Section 1, provides that one of the purposes of the regulations is to protect the water resources found within the city and such protection is necessary for the public good. It further provides that an additional purpose of the regulations is to promote, preserve and enhance the water resources and environment within the city and protect them from adverse effects caused by poorly sited or incompatible development. The creation of a nonconforming lot does not serve to promote the public good established in Chapter 51, Section 1;

     (c)  The creation of a nonconforming lot would result in a lot that does not enjoy the benefit of development rights granted to nonconforming lots pursuant to Chapter 51, sections 7 and 29(e)(3)(C). Without such rights, the owners will be unable to expand the current uses or replace structures should they be destroyed. Should such destruction occur the property could not be redeveloped. This would result in the loss of property tax base. It is not in the public interest to authorize land uses that create the potential for loss of tax base;

     (d)  The applicant has failed to demonstrate the existence of a hardship as required by Chapter 51, Section 30, and as defined by Chapter 51, Section 2. Hardship may be established by demonstrating that the property cannot be put to reasonable use under the condition allowed by the regulations set forth in Chapter 51; that the plight of the landowner is due to circumstances unique to his property, and are not created by the landowner. Economic considerations alone shall not constitute a hardship. Here, the lot currently meets the minimum area requirements and is currently being put to a reasonable use.

     Thus, the applicant cannot meet the first requirement to support a finding of hardship.

STATEMENT OF PURPOSE:  The applicants seek to alter property legally described as Lots 185 and 187, Lake Avenue, and Lots 186 and 188, Minnesota Avenue, Lower Duluth. They seek to create two 8,000 square foot lots, each less than the 10,000 square-foot minimum lot area required in a general development shoreland zone. This would result in altering a conforming lot to a nonconforming lot. The request was referred to the city planning commission which held a public hearing held May 10, 2005. The commission unanimously resolved to deny this variance request.

     Pursuant to Section 50-140(c) of the Duluth City Code, Jacob Kapsner appealed to the city council the planning commission’s denial of a Water Resources Management Ordinance variance request.

     The city council’s planning and economic development committee held a committee hearing on May 10, 2005, to consider this appeal and determined that the city planning commission’s action was appropriate because the request does not meet the requirements of sections 51-29 and 51-30 of Chapter 51 of the Duluth City Code for the following reasons:

     (1)  Compliance requires a showing of hardship.

     (2)  The facts, features, and events show that there is no hardship, a reasonable use of the subject properties can be made without a variance.

     (3)  An alternative to this variance request would be to amend the legal descriptions to provide for one 6,000 square-foot lot and one 10,000 square-foot lot.

This resolution upholds the action of the city planning commission and its denial of a Water Resources Management Ordinance variance to the requestor

Approval of this resolution will not impact the tax base.


Date of application:   August 3, 2004

Application Tabled:    August 25, 2004

New application:       April 27, 2005

Final action:          September 25, 2005