DISCLAIMER

 

05-0632R


RESOLUTION REVERSING THE DECISION OF THE BOARD OF ZONING APPEALS TO DENY 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 (TRAVIS AND MELISSA BUMGARDNER).

BY COUNCILOR GILBERT:

     BE IT RESOLVED, the city council has heard the appeal of Travis and Melissa Bumgardner of the decision of the board of zoning appeals denying applicants’ variance request and that the city council 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                                                   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.

     BE IT FURTHER RESOLVED, by the city of Duluth that the board of zoning appeals’ decision of August 23, 2005, is hereby reversed by the city council and the variance request is granted.


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.


This resolution reverses the decision of the board of zoning appeals.


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 December 2, 2005, which is 120 days from the date of application.

 

APPLICATION DATE:      August 5, 2005

FINAL ACTION DATE:     December 2, 2005