DISCLAIMER

 

05-0583R                                                           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 20 FEET AND TO EXCEED THE ALLOWANCE FOR PROJECTIONS INTO A FRONT YARD WITH A STAIRWAY AT FIVE FEET FROM THE PROPERTY LINE FOR THE CONSTRUCTION OF A TWO FAMILY DWELLING ON PROPERTY LOCATED AT 3129 MINNESOTA AVENUE (MARICK DEVELOPMENT, INC., BY DANIEL MADDY).

BY COUNCILOR GILBERT:

     BE IT RESOLVED, the city council has heard the appeal of Marick Development, Inc., of the decision of the board of zoning appeals denying applicants’ variance request and that the city council makes the following findings: 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 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.

     (a)  The owner’s proposed use of the property is reasonable. Two-family dwellings are specifically permitted in the one-family dwelling district;

     (b)  The rules relating to the development of two-family dwellings specifically include design protections unique to two-family dwellings for the specific purpose of assuring that their character will be consistent with the surrounding neighborhood;

     (c)  These restrictions include a requirement that a two-family dwelling must be at least 300 feet from any other two-family dwelling in the same block and that there may only be one two-family dwelling within a block containing an area of 120,000 square feet or less;

     (d)  In addition, the property is subject to the Water Resource Management Ordinance (WRMO). The WRMO also imposes design protections limiting the scale of improvements. These include a restriction setting the maximum amount of area that may be covered by impervious surface at 30 percent - thereby limiting the size and scale of improvements;

     (e)  The requested variances will not result in development that is inconsistent with other properties in the neighborhood. The size and scope of the two-family dwelling are in line with many new developments on Park Point. Park Point is also replete with homes lying well within the front yard setback. The best example is the property’s neighbor at 3123, which projects 23.5 feet into the 25 feet front yard setback. In fact, the proposed use is more in character with the surrounding neighborhood and more in compliance with applicable zoning requirements then the existing house and garage;

     (f)  The owner has a substantial property right to develop the property for a use permitted by the zoning code in a reasonable fashion which does not negatively impact the surrounding neighborhood;

     (g)  The property is subject to unique circumstances;

     (h)  Variances relating to the front yard are necessary to accommodate the need for the two-family dwelling to be set back at least 50 feet from the ordinary high water mark;

     (i)  The 50 feet requirement applies to the property even though owner’s lots extend substantially beyond the ordinary high water mark;

     (j)  The property lies in an area where the Duluth harbor line moves in and out dramatically;

     (k)  3123 is not nearly as deep as the property and the property immediately southeast along Minnesota Avenue narrows significantly to the property;

     (l)  The property northeast of 3123 juts significantly farther in to the Duluth Harbor. Although the result is a setback line from the high water mark which varies greatly within this immediate vicinity, owner desires to meet the high water mark setback of 50 feet;

     (m)  The owner’s proposed two-family dwelling will not alter the essential character of the neighborhood;

     (n)  The proposed use will not result in problems of fire safety, street congestion, loss of view or otherwise reduce the value of nearby properties;

     (o)  As noted above, the development of two-family dwellings in the one-family dwelling district is subject to special design protections intended to protect the character of the neighborhood;

     (p)  The design will result in one additional dwelling and does not present any fire safety issues;

     (q)  The proposed use will not result in any material increase in traffic or street congestion along Minnesota Avenue;

     (r)  The proposed use will not result in any loss of view that would not occur with the development of any other structure centered within the property;

     (s)  The proposed development will replace buildings that are in somewhat disrepair with a new building, and this reinvestment in the property should enhance and not detract from the value of nearby properties.

     BE IT FURTHER RESOLVED, by the city of Duluth that the board of zoning appeals’ decision of July 26, 2005, is hereby reversed by the city council and the variance request is granted.


STATEMENT OF PURPOSE:  Marick Development, Inc., applied to the board of zoning appeals for a variance to reduce the minimum front yard setback from 25 feet to 20 feet and to exceed the allowance for projections into a front yard with a stairway at five feet from the property line for the construction of a two family dwelling on property located at 3129 Minnesota Avenue, and legally described as Lots 255 and 257, Minnesota Avenue, Lower Duluth, and Lots 256 and 258, St. Louis Avenue, Lower Duluth.


The board of zoning appeals denied the variance request because it determined that a legal conforming dwelling could be designed to fit this lot without needing a variance. Thus, they concluded 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 that 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 was merely a convenience of the applicant. The applicant has appealed to the Duluth City Council.


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 20 feet and to exceed the allowance for projections into a front yard with a stairway at five feet from the front property line for the construction of a two family dwelling on property located at 3129 Minnesota Avenue.


If the city council approves this resolution it is required to state the factual basis for its finding in the blank spaces provided in the body of the resolution. Such factual findings are required by the district court in order to avoid a determination that the decision was arbitrary and capricious.


Pursuant to Minn.Stat.§ 15.99, the city council must act no later than November 5, 2005, which is 120 days from the date of application.


APPLICATION DATE: July 8, 2005

FINAL ACTION DATE: November 5, 2005