BY COUNCILOR GILBERT:
BE IT RESOLVED, that the council has heard the appeal of Travis and Melissa Bumgardner of the decision of the board of zoning appeals denying applicants’ variance request and finds that there does not exist factors or circumstances that are unique to the subject property which were not created by the owners, either past or present, and that the circumstances in this case do not justify the granting of the variance because the need for the variance is the result of the unauthorized division of the property.
BE IT FURTHER RESOLVED; that the board of zoning appeals’ decision of August 23, 2005, is hereby affirmed by the city council.
STATEMENT OF PURPOSE: Travis and Melissa Bumgardner applied to the board of zoning appeals for a variance to reduce the minimum corner side yard setback requirement from 20 feet to 12 feet, four inches and to allow an accessory structure to exceed the maximum area allowed in a required rear yard area from 30 percent to 39 percent for the construction of a 14 feet by 35 feet detached garage on property located at 4101 East Superior Street, and legally described as the southerly 92 feet of Lot 16, Block 25, London Addition to Duluth.
The board of zoning appeals denied the variance because it found that by granting this variance request, the board would be sanctioning the illegality that was created in 1979 by the unauthorized subdivision of this property. It also denied the variance because additional construction would exacerbate yard line violations that were unrelated to a physical condition of the property but were created by illegal acts of prior owners of property. The board further found that in the event of the destruction of one of the homes, it was possible that the owners of the destroyed home would assert that the city’s approval of this variance to construct a garage implied an approval of the previous request and should allow them the right to rebuild. An affirmative action of the board could be used to support an argument that the nonconforming use be continued even though it was never approved.
Thus, they concluded that in order to legally grant the variance the condition of the property that necessitates the variance request must be endemic to the property and not created by the owners, either past or present. The circumstances in this case did not justify the granting of the variance because the need for the variance resulted from the unauthorized division of a conforming lot into two nonconforming lots.
The applicant has appealed to the Duluth City Council.
This resolution affirms the decision of the board of zoning appeals to deny the variance request based upon the reasons provided by the appeals board.
Pursuant to Minn. Stat. §15.99, the city council must act no later than December 2, 2005, which is 120 days from the date of application.
APPLICATION DATE: August 5, 2005
FINAL ACTION DATE: December 2, 2005