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UNIVERSAL PROPERTIES, INC.
VARIANCE PUBLIC HEARING MINUTES
SEPTEMBER 29, 2009
The public hearing was called to order at 6:07 p.m. by chairman of the Board of Supervisors Jeff Bachke. Present for the hearing were Board of Adjustment members Kathy Meyer and Anne Macaulay; building and zoning official Marty Paavola; supervisors Greg Andrews and John Goman; clerk Patti Alander; deputy clerk Cammy Hansen and the following residents: William Clements, Jason Beckman, William Yax, Diana and Kurt Johnson, Rick and Carol Olson, Mark Eskola, Faye and Ronald Thompson and Todd Noreen. Board of Adjustment member Bridget Brine was absent.
The purpose of the hearing is to consider the variance application of Universal Properties, Inc. of 1821 Woodland Ave., Duluth MN 55803 for the property located at 5021 Arnold Road (the former Arnold Lutheran Church.) The following variances are being requested:
Variance No. 4: Rice Lake Township’s Ordinance #22, Article III, Dimensional Standards, Section 2, District Number 5, requires 2.5 lot acres. The lot area of the subject property is .455 acres.
The request is for a variance of 2.045 acres.
Variance No. 5: Rice Lake Township’s Ordinance #22, Article III, Dimensional Standards, Section 2, District Number 5, requires minimum 20 foot side yard for principle structures.
The request is for a 17 foot variance for the side yard at the south property line.
Variance No. 3: Rice Lake Township’s Ordinance #22, Article III, Dimensional Standards, Section 2, District #5 requires minimum 200 foot lot width frontage for a buildable lot.
The request is for a 120 foot variance for lot width frontage.
Variance No. 4: Rice Lake Township’s Ordinance #22, Article III, Section 6, Road right-of-way setbacks, requires Minor Collectors and Local Roads to have a setback for structures a minimum of 68 feet from center line or 35 feet from property lines, whichever is greater.
Arnold Road is a Minor Collector and the request is for a variance of 64 feet from the center line of Arnold Road.
Variance No. 5: Rice Lake Township’s Ordinance #22, Article III, Section 6, Road right-of-way setbacks requires Minor Collectors and Local Roads to have a setback for structures a minimum of 68 feet from center line or 35 feet from property lines, whichever is greater.
Nelson Road is a Minor Collector and the request is for a variance of 53 feet from the center line of Nelson Road.
The notice for this public hearing was posted on September 14, 2009 and published in the Duluth News Tribune on September 18, 2009 and September 25, 2009.
Jeff Bachke, serving as Board of Supervisors liaison to the Board of Adjustment, gave a synopsis of how this public hearing will be conducted.
Jeff asked the clerk if any calls, letters or emails were received either in support of or opposition to the application. None were received; however Patti wanted to share some background information regarding this application: In May of 1989 an application was made to divide the parsonage from the church. The application was denied by the Board of Adjustment. However, St. Louis County records show that the property was indeed divided sometime in October 1989. It appears that the Board of Supervisors split the property by Resolution in August 1989. Patti read into the record excerpts of minutes from that time period which discuss this property.
The five variances that are being considered tonight were previously approved at a public hearing held on November 24, 2008. However, these five variances were added to the agenda that evening and not published or posted as required. The Town’s attorney has recommended we conduct this second public hearing for these five variances.
Patti read a letter from Todd and Gia Noreen that was handed to her by a member of the audience (see attached.) Mark Eskola stated he sent an email in opposition however it has not yet been received by the Town. Jeff asked that Mark please speak during the public testimony portion.
APPLICANT: Jason Beckman explained that the hearing was really an extension of last fall’s hearing. It seems to him that this is a bit of “housekeeping” with regard to how the Town originally split the property as the variances were not recorded at that time. He also pointed out that the letter that was read into the record pertained to a Conditional Use Permit rather than to zoning. Jeff confirmed that this hearing is to “clean up” the variances on this property in order to protect current property owners as well as future property owners.
At this point, Patti read into the record the three previous variances that were granted in November, 2008:
Variance No. 1: Rice Lake Township’s Ordinance #22 Article IV, Section 3.01, Item A states: Certain nonconforming structures may be allowed one addition, provided it does not increase the nonconformity. This provision pertains to additions to existing structures only. Article II, Section 6 defines Remodel as (in part): Remodeling of an existing structure shall be considered one or more of the following: 1. Work performed on the interior of a structure (provided the work will not increase the number of bedrooms or increase water usage.)
This request will increase the number of bedrooms and increase water usage.
Variance No. 2: Rice Lake Township’s Ordinance #22 Article IV, Section 3.01, Item A states: Certain nonconforming structures may be allowed one addition, provided it does not increase the nonconformity. This provision pertains to additions to existing structures only. Article II, Section 6 defines Remodel as (in part): Remodeling of an existing structure shall be considered one or more of the following: 3. Additional windows or doors; under no circumstance shall remodeling constitute replacement of the main structural frame, wall, or changes in the exterior dimensions.
This request proposes a second story on the existing structure consisting of three additional apartments.
Variance No. 3: Rice Lake Township’s Ordinance #22, Article III Lot Dimension Table states: Maximum Lot Coverage in a Multiple Use Non-Shoreland (MUNS-5) Zone District is 10%.
This request will increase lot coverage to 95%.
Jeff clarified that these three variances were posted, published and approved previously and are not a part of tonight’s hearing. Up for discussion tonight are, in essence, the setbacks.
ZONING ADMINISTATOR REPORT: Zoning administrator Marty Paavola read his Zoning Administrator’s report into the record (report attached.)
Jeff clarified that even if these five variances were denied; there would be no effect on the existing building. A member of the audience asked for this to be explained. Marty stated that the Conditional Use Permit was denied, but the Ordinance allows up to a four plex to be built on this property without a CUP as long as performance standards are met. What we are discussing tonight is five variances that would change this property from a “non-conforming lot of record” to a “legal non-conforming lot.”
William Clement, 5052 Arnold Road: Asks for further clarification. He said the performance standards in our ordinance double the setbacks for two, three or four family attached housing units so how can we determine what the setback requirements will be at this time? There was discussion as to what an “attached” housing unit is. Patti pointed out that the variance requests will relate to the existing structure on the property. Jeff stated we are not discussing usage; we are discussing setbacks.
Mark Eskola, 5017 Arnold Road: He is concerned that the Board is not proceeding properly.
Jason Beckman, 1821 Woodland Ave.: There is no intended use of the property at this time as the previous Conditional Use Permit was denied. At this time the owners are trying to get the legal issues regarding the variances dealt with and then will pursue the Use of the Property issue.
TESTIMONY IN FAVOR OF THE VARIANCE:
Jason Beckman: Wants to save the building from disrepair and unuse. They, as owners, are trying to be a reasonable as possible in making decisions regarding the property.
TESTIMONY IN OPPOSITION TO THE VARIANCE:
Diana Johnson, 3887 Nelson Road: Distributed a document (attached) outlining her questions: Questions whether the three previous variances are valid as she believes they are intertwined with the five variances in question tonight. She also thinks the five variances should have been approved prior to hearing the three variances as they were pre- existing. She also made the point that the variances are substantial in size.
Carol Olson, 3913 Nelson Road: Her concern is that if the variances are granted, will it make future development easier? What is the benefit to the owners if the variances are granted? Marty stated that if 50% or more of the structure is destroyed, the owners would be able to rebuild if the variances were granted.
Mark Eskola: Stated that his email basically said he is opposed to the variances. He thinks we need to know what the intended use is prior to any variances being granted.
William Clements: Referenced page 82, paragraph2B of Ordinance #22: “No variance may be granted that would allow any use that is prohibited” and page 81, paragraph 3, “application forms shall be complete.” Since we do not know the use, he does not believe the application is complete. He also mentioned the “hardship” issue on page 82. He stressed that the use of the property must be considered in this case as is denoted on page 81, paragraph D1, “The Board of Adjustment shall always act with due consideration to promoting the public health, safety and welfare, encouraging the most appropriate use of land….” Page 82, paragraph 2E, “…may impose conditions….” He asks that the board impose the condition of a single family home only if the variances are approved. He also pointed out a typographical error on the public notice: Variance No. 6 on the public notice reads, “Rice Lake Township’s Ordinance #22, Article III, Dimensional Standards, Section 2, District #5 requires minimum 20 foot side yard for principal structures. The request is for a 120 foot variance to lot width.” Variance No. 6 is in reference to lot width, not side yard. He believes that may be a reason to challenge the hearing. Lastly, he pointed out on page 86, Section 10, paragraph 10.01A states, “Once an amendment has been acted upon by the Town Board, the matter shall not be reconsidered, nor shall any additional amendments involving the same parcel of property be heard or considered by the Planning and Zoning Commission or the Town for at least 12 months.” Jeff pointed out that this hearing is not due to the applicant’s request, but the Town’s need to properly record the variances. William also stated that there is a paragraph in the Ordinance that states variances, permits, etc. will be null and void whether there is an intentional or unintentional error. He says the neighbors are concerned because they don’t know what the owners will do with this property and that the application is not complete. He believes there are lots of procedural problems and also doesn’t believe that it is practical to separate the use from the variance.
Jeff asked for any additional testimony. Hearing none, he asked for questions or comments. Jason Beckman asked to be able to remind the board that, as property owners, they are willing to work with the community. They have heard many “no’s” with no input on what people would like to see there. Regarding Ms. Johnson’s letter, he does not think the argument that approving the three variances at the first hearing precludes the board from considering variances 4-8 has merit. Also, that there is no basis for thinking there may have been additional testimony had the hearing proceeded differently. He also pointed out that an empty building right next door may also have the potential to reduce property values. Jason also wonders if the variances on the adjacent property, 5017 Arnold Road were properly recorded if the one affecting 5021 Arnold Road were not and encourages Mr. Eskola to find out.
Patti reiterated that we are having today’s hearing based on our attorney’s recommendation because variances 4 – 8 were not posted and published as required.
With no further questions or comments, Jeff called for a motion to close the public testimony portion of the hearing. Motion made by Kathy, seconded by Anne. All vote in favor, motion carried. Public testimony portion of the hearing closed at 7:02 p.m.
DISCUSSION: Anne has reviewed her notes of prior hearings regarding this property and feels that the Board of Adjustment has carefully considered each and every variance. She noted that the only opposition that was received at the first variance hearing was from Todd Noreen, who also submitted a letter here tonight. She is saddened that some audience members have concluded that the board has not acted properly on this issue and assures all that she takes this job very seriously. Kathy also agrees that the board has acted in accordance with the Ordinance, in good faith, and with the best interests of the Town in mind. She believes that everything was discussed thoroughly at the hearing in November. Kathy also pointed out that this is something that was done and approved in 1989.
Patti read the testimony in favor and testimony opposed to the variance from the November 24, 2008 hearing:
TESTIMONY IN FAVOR OF THE VARIANCE:
Clarice Turcotte, 3858 Nelson Road, would like to see the building stay and is in favor of the variance.
Rod Nelson, 3397 W. Tischer (whose family were long time Arnold Lutheran Church parishioners) is in favor of preserving the building and thinks the proposal put forward is a good one.
Eileen Hagen (who has been a member of the church since childhood) also spoke in favor of the variance.
TESTIMONY OPPOSED TO THE VARIANCE:
Todd Noreen who lives across the street at 5012 Arnold Road stated he is concerned about the quality of renters that may be drawn to the community. (Co-owner Todd Beckman addressed these concerns saying that the target rental price for a 2 bedroom unit will be approx. $900 and would be new construction and expects to draw a higher clientele of renters.)
Carol Olson, 3913 Nelson Rd., purchased property nearby with the understanding that the church property was not able to be developed and is also concerned about the septic system. Chairman Hurtig said the septic system is part of one of the variances that is to be considered tonight.
Diana Johnson, lives kitty corner at 3887 Nelson Rd. and is not against the project, but has concerns: the amount of money to be spent by current owners is commendable, but what happens if property changes hands and new owners need to change the property use in order to make the building sustainable? Chairman Hurtig explained the Conditional Use Permit process and that the process would be required by the new owners. Parking was also addressed and was explained by Mr. Yax that only overflow parking would be across the Nelson Road; the main parking area will be behind the existing structure.
At this point, Patti noted that testimony better suited to be heard in the Conditional Use Permit process was mingled into the Variance process, as is happening again tonight. She went on to read from the minutes of November 24, 2008:
Chairman Hurtig asked for any additional testimony prior to the closure of the public hearing portion of the meeting. Mr. Olson, 3913 Nelson Rd., questions, with all due respect that to folks who “grew up” in the church but no longer live in the vicinity, whether these people should have any say in how the property is to be used. Chairman Hurtig states that the people living closest to the structure have the most say on the variance, however all testimony is of interest to the board.
Chairman Hurtig asked for questions or comments from the board members and the hearing audience. Hearing none, Hurtig asked for a motion to close the public testimony portion of the meeting. Moved by Ms. Brine, seconded by Ms. Meyer at 6:50 pm. All board members vote in favor, motion carries.
DISSCUSSION: Chairman Hurtig reiterates that variances 4 through 8 are the result of oversights of prior township governance. The variances when the property was sold were not properly recorded. Apparently what happened years ago was that the Planning & Zoning committee said the property could not be split, however at a later date the board approved the splitting of the parsonage from the church itself. This unusual process resulted in the oversight of the recording of variances 4 through 8. The first three variances are more germane in that they relate to what the current owners are interested in doing with the property.
Patti also noted that the variance application that we use currently is the exact same application that we used in 1989; neither of which contains information regarding use of the property.
Continuation of Discussion phase:
Variance No. 4: Rice Lake Township’s Ordinance #22, Article III, Dimensional Standards, Section 2, District Number 5, requires 2.5 lot acres. The lot area of the subject property is .455 acres.
The request is for a variance of 2.045 acres.
Kathy states that this is out of our hands; that the township allowed it in 1989 so that the parsonage could be sold. Jeff explained that he is a town board member and is facilitating tonight’s meeting, but does not get a vote. Marty clarified that the variances requested would be for only permitted uses in the MUNS-5 zone. A motion to approve Variance No. 4 was made by Kathy and seconded by Anne. All vote in favor; motion carried.
Variance No. 5: Rice Lake Township’s Ordinance #22, Article III, Dimensional Standards, Section 2, District Number 5, requires minimum 20 foot side yard for principle structures.
The request is for a 17 foot variance for the side yard at the south property line.
Again, Kathy and Anne stated that this was done in 1989 and we are now going through the process of making the variances legal. A motion to approve Variance No. 5 was made Kathy and seconded by Anne. All vote in favor; motion carried.
Variance No. 6: Rice Lake Township’s Ordinance #22, Article III, Dimensional Standards, Section 2, District #5 requires minimum 200 foot lot width for principle structures.
The request is for a 120 foot variance for lot width.
No discussion. A motion to approve Variance No. 6 was made by Anne and seconded by Kathy. All vote in favor; motion carried.
Variance No. 7: Rice Lake Township’s Ordinance #22, Article III, Section 6, Road right-of-way setbacks, requires Minor Collectors and Local Roads to have a setback for structures a minimum of 68 feet from center line or 35 feet from property lines, whichever is greater.
Arnold Road is a Minor Collector and the request is for a variance of 64 feet from the center line of Arnold Road.
Kathy states that the building cannot be moved. A motion to approve Variance No. 7 was made by Kathy and seconded by Anne. All vote in favor; motion carried.
Variance No. 8: Rice Lake Township’s Ordinance #22, Article III, Section 6, Road right-of-way setbacks requires Minor Collectors and Local Roads to have a setback for structures a minimum of 68 feet from center line or 35 feet from property lines, whichever is greater.
Nelson Road is a Minor Collector and the request is for a variance of 53 feet from the center line of Nelson Road.
No discussion. A motion to approve Variance No. 8 was made by Anne and seconded by Kathy. All vote in favor; motion carried.
Having no further business to discuss, the meeting was adjourned.
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