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06-9812r RESOLUTION NO. 9812 RESOLUTION DENYING THE APPEAL FROM THE DECISION OF THE HEARING EXAMINER AND AFFIRMING THE HEARING EXAMINER'S DECISION TO DENY A VARIANCE FOR THE STEPS, SIDEWALKS, SHED AND FENCE AT 6425 OLIVER AVENUE Be it resolved by the Board of Adjustment and Appeals of the City of Richfield, Minnesota as follows: I. The Board of Adjustment and Appeals hereby makes the following findings of fa ct: FINDINGS OF FACT 1. The City of Richfield (the "City") regulates, by ordinance, the setback requirements of sidewalks, steps, storage sheds, and the height requirement of fences. 2. The primary source of such regulations is contained in Appendix B of the Richfield City Code, which is also known as the Richfield Zoning Code. 3. On or about April 26, 2006 the City received an application from Daniel Rasmus, attorney for Kristin Ann Brown (the "Applicant"), 6425 Oliver Avenue (the "Property"), requesting a variance to allow reduction of the one-foot setback requirement to zero feet for concrete sidewalk and steps, reduction of the three-foot setback requirement to one foot for an existing shed, and an increase in the allowable height of a fence on a residential property from six feet to nine and one-half feet. 4. The Property is located in the Single Family Residential (R) zoning district. 5. Subsection 521.05, Subdivision 20f the Richfield Zoning Code requires sidewalks to be set back no less than one foot from any lot line abutting another parcel. 6. Subsection 521.11, Subdivision 9 of the Richfield Zoning Code requires storage sheds to be set back at least three feet from the side interior property line. 7. Subsection 521,23, Subdivision 2 ofthe Richfield Zoning Code requires fences to be no more than six feet tall in the R District. 8. On June 20, 2006 the Hearing Examiner conducted a public hearing on the variance request. 9. On or about June 22,2006 the Hearing Examiner published a written decision denying the variance request. 10. On or about July 3, 2006 the City received a written request (the "Appeal") to the Board of Adjustment and Appeals (the "Board") to consider an appeal of the decision of the Hearing Examiner. 11. The Appeal came before the Board for review and action on July 25, 2006. The Board conducted a public hearing, at which the Applicant was provided the opportunity to testify. 12.At the hearing, City staff verified that the Applicant had modified the fence to come into compliance with the height requirements of Subsection 521.23, Subdivision 2 of the Richfield Zoning Code, and the Applicant withdrew her Appeal with respect to the fence. 13. The sidewalk and steps in question are located between the north wall of the house on the Property and the north line of the Property. Surveys of the Property and of the adjacent property to the north indicate that the area between the house and the north property line varies. A survey of the adjacent property prepared by W. Brown Land Surveying, Inc. indicates that the area is from 3.4 to 4.1 feet wide. A survey of the Property prepared by Pioneer Engineering, P.A. indicates that the area is from 3.7 to 4.1 feet wide, and a survey of the Property prepared by Harry S. Johnson Co., Inc. indicates that the area is from 3.3 to 4.0 feet wide. Regardless of the survey that is used, it appears that the sidewalk and steps fully occupy the available area and encroach onto the property to the north of the Property. 14. The area where the sidewalk and steps are located provides the only access from the front of the Property to the rear yard. A fence near the south property line prevents any access from the front of the Property to the rear yard along the south line. 15. The topography within the area of the sidewalk and steps is somewhat steep, with the elevation falling from the front yard area to the rear yard area. Given the topography, there is a reasonable need for steps to be constructed in the area. 16.lf the sidewalk and steps were to be constructed in conformance with City setback requirements, the sidewalk and steps would not be wide enough to safely maneuver a lawn mower from the front to the rear of the Property. However, if a variance were granted to allow an encroachment to within three inches from the north property line, the Applicant would have adequate room to maneuver a lawn mower on the sidewalk and steps. 17. The shed was erected on the Property within the last four years. The Applicant indicated that she located the shed based upon her assumption that an existing fence represented the north property line. The Applicant did not verify the location of lot lines by survey before erecting the shed. The shed does not have footings or a permanent foundation and instead is placed on top of a platform of wood four-by-fours. 18. There are no unique topographical conditions or other circumstances that prevent the Applicant from moving the shed to a location that conforms with City setback requirements. II. The Board hereby makes the following conclusions: CONCLUSIONS 1. The Applicant has shown that the topography of the Property creates a practical difficulty in the use of the Property, unless a variance is granted to allow wider steps along the north line of the Property. 2. The Applicant has demonstrated that compliance with the provisions of Zoning Code Subsection 521.05, Subdivision 2 will result in an undue hardship that justifies a variance for the sidewalk. 3. A variance that allows the sidewalk and steps to encroach into the required setback area up to a maximum of within three inches of the north line of the Property, but no farther than is necessary to maintain a three-foot-wide sidewalk, is adequate to address the hardship. 4. The City has no authority to authorize an encroachment by the Applicant onto the neighboring property to the north. 5. With respect to the shed, the Applicant has not shown that compliance with the provisions of Zoning Code Subsection 521.11, Subdivision 9 will result in an undue hardship that denies the Applicant the reasonable use of the Property. Economic considerations do not qualify as an undue hardship. The applicant's Property can be put to reasonable use if the shed is relocated in compliance with City setback requirements. 6. With respect to the shed, the Applicant has not demonstrated that any unusual or unique circumstances apply to the Property that do not apply to other properties generally. 7. The variance for the shed, if granted, would alter the character of the neighborhood and would have adverse impacts on the neighborhood. Multiple citizen complaints have been made regarding the violations on the Property, indicating an adverse impact to the surrounding properties. 8. The City Council rejects the Applicant's request to determine setbacks based on an assumed property line rather than a certified survey. The Applicant has other legal means available to obtain a judicial determination regarding the location of the property line. If the City were to administer its Zoning Code based upon assumed or agreed property lines, as opposed to certified surveys or judicially determined property lines, it would cause significant difficulties in the efficient and effective administration of the zoning code. III. Based upon the foregoing, the Board hereby makes the following decision: DECISION The appeal of the decision by the Hearing Examiner to allow: a one-foot setback requirement to zero feet for concrete sidewalk and steps is GRANTED in part and DENIED in part. A variance is granted to reduce the one-foot setback to three inches, provided that at no point where the sidewalk and steps encroach within one foot of the property line shall the sidewalk and steps be greater than three feet in width. The appeal of the decision of the Hearing Examiner to allow a reduction of the three-foot setback requirement to one foot for an existing shed is hereby in all respects DENIED. The decision of the Hearing Examiner is affirmed, and the variance is denied. The Applicant is ordered to bring the sidewalk, steps, and shed at 6425 Oliver Avenue into compliance with the provisions of the Richfield Zoning Code, as modified by the variance granted herein, and to pay all required permits and penalties, no later than the earlier of the following: (a) six months from the date of this resolution; or (b) 30 days after the Applicant receives a judicial determination in the pending legal proceeding regarding the location of the property line. If the property line is adjusted as a result of the pending judicial proceeding, the Applicant may request that the City Council reopen this matter and modify this Resolution as appropriate, depending upon the results of the judicial determination. For purposes of determining compliance with this resolution, the City staff is directed to rely upon the survey of the Property prepared by Pioneer Engineering, Inc. for First American Title Insurance Company. Adopted by the City Council of the City of Richfield, Minnesota this 8. h...~. Y of ? August,2006. ' . ..... ... ~ .:: .. Martin J. Kirs M or ATTEST: