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78-5994RRESOLUTION ~NO. 5994 RESOLUTION DENYING REQUEST FOR SPECIAL USE PERMIT AND VARIANCE OF THE FRONT YARD SETBACK AT 6529 PENN AVENUE. (ABBY`S RESTAURANT) BE iT RESOLVED by the City Council of the City of Richfield that the following findings. and order be adopted:. 1. Application has been made for a special use..permit and for a variance of the front yard setback for a reconstructed and `enlarged Arby's Restaurant on the property at b529 Penn Avenue' South. 2. ..There is an existing. Arby's Restaurant on the. property. The present front. yard setback of the restaurant building is 20 feetfrom the street right-of-way.. 3. The zoning district in which the property is located is the industrial .district. 4. The front yard setback for the zone in which the present building is located-is 40 feet. Therefore, the present building setback already, fails to conform to the. setback regulations, but the city has heretofore granted a variance to permit the present building to located as it is. S. The application asks for a further variance so as to permit the building, proper, to be extended to a point 6 feet from the street right-of-way and for the roof of the building to extend to a'point one and one-half feet from the street right-of- away ..- 6. The other buildings on the same side of the street in the same block are located farther back from the street than the exi tng Arby's building, one such building being 45 feet, another 27 feet and a third 7D feet back from the street right- of-way of Penn. Avenue.. 7. The area between the existing building and the street .right-of-way is now occupied by an outdoor eating area and a large advertising sign. Applicant proposes to eliminate these if the variance is granted, claiming that this would eliminate an eyesore and claiming that this should provide justification for the additional variance in the front yard setback. 8. Applicant indicates that if both the variance and the special. use permit are granted, there will be extensive remodeling of both the inside and the outside of the existing Arbys Restaurant so that it will be a more attractive and a more valuable building.- A layout of the proposed improvements to the. building and to the property has been presented to this council. An enlarged and improved building or a new building could be constructed on the property without the requested variance. 9. Applicant-cites rapid growth in the fast-food industry -and the :volume of business in the subject property., over volumes of earlier years, as justification for expanding the subject property into the front ya~d setback area. An increase. in business, over the orgina~"volume of business, does not provide . an adequate basis for the equested setback variance. 10. Applicant cites recent declining sales at the subject restaurant as a basis for requesting the variance, indicating that a number of other restaurants of .the 'same type owhed by :applicant' have experienced a business increase. She-decline in sales is attributed by applicant, at least in parts. to new competition in :the area;. but also to the resent building: size and design. A decline in business, like an increase in business, does not, per se, provide an adequate basis for-the. requested setback variance. 11. The city has received an appraisal report from O. J. Janski & Associates, Inc., professional appraisers, indicating- that applicant's proposed construction would have a detrimental effect upon the .immediate neighborhood.. 12. The city has received a report from Bather, Ringrose, Taolsfeld, Jarvis, Gardner, ,Inc., professional planning, tra~spor-` taton, engineering. and arc',hitecture consultants, indicating that the proposed plan would result in a parking deficiency of six spaces, would increase conflict for traffic on Penn Avenue and would create several problems regarding vehicular traffic and pedestrian movements on the', site. 13. Section. 3.40,. Subld. 6 of the Ordinance Code of the City of .Richfield provides as folllows: "Conditions Upon Grant of Adjustment. or Variance. Before granting an application for an adjustment or variance, thejcouncil must find: (1) That there .are special circumstances or conditions affecting the particular land, building. or use referred to in the application, not common to other properties in this or similar districts.. (2) That the granting of the applications is .necessary for the preservation and enjoyment of substantia property rights.. (3) That the granting of: the application. will not materially and .adversely affect .thee health or safety of persons residing'or working in the neighborhood of the property of the. applicant and .will not be aterially detrimental to the public welfare or injurious to property or improvements in the neighborhood. At the hearing the applicant shall present a statement and evidence in such ''form. as the city may require to show these. facts:" llb Resolution No. Syy4 "' 14. The planning commission of the city has held a hearing on the proposed special use permit and variance. and has- - recommended .that they be denied. 15. The city council has`recei~red a report from the city staff indicating, among other things,``that the standards required by Section 3.40, 5ubd. 6, for a variance to be granted, have not been met. 16. The council finds that the conditions for granting a variance, as set out in Section 3.40, Subd.'6, do not exist. 17. Minnesota Statutes, Section 462.357.; Subd. 6 provides the legal basis-for granting variances from the literal provisions of a zoning ordinance. Such. variances may be granted where the strict enforcement of the provisions_of the ordinance would cause undue hardship because of circumstances unique to the individual property under consideration. The statute provides for the granting of such variances only when it is demonstrated that such .actions will be in keeping with the purpose and intent of the ordinance.. It is, found that the statutory conditions for. the granting-of the variance do not exist in thiscase.. 18. It is ordered that the application foraa front yard setbackvariance be denied. 19`. The existing .use of the subject property is authorized by a special use permit for a restaurant. The authorization applies to the building and off-street parking area as now located on the .property. A substantial change in .the building. or off-street parking area, so as to change the. manner in which the subject property is being used for restaurant purposes, would necessitate a new or revised special use permit. The application has been made for suph a permit, with the proposed building comprising an integral part of the proposed project. The denial. of the requested setback variance appears to make it unnecessary for the council to give .further consideration to the application for the. special use permit. 2O. It is ordered that the application for the special use permit be denied. Such denial is without prejudice to a revised application for a special use permit for a new or remodeled restaurant on the subject property. Passed by the City Council of the City of Richfield~~s 13th day of November, 1978. L. ATTEST:. G ~~~~- Thomas J Moran City Clerk.