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Larkin Hoffman 11/5/2008 10:55 PAGE 002/004 Fax Server ATTACHMENT 3 Larkin Homan ATTOINET5 November 4, 2008 Board of Appeals and Adjustments Mr. Michael Grochala, Community Development Director The City of Lino Lakes 600 Town Center Parkway Lino Lakes, MN 55014 Larkin Hoffman Daly & Lindgren Ltd. 1500 Wells Fargo Plaza 7900 Xerxes Avenue South Minneapolis, Minnesota 554314194 GENERAL: 952 -835 -3800 FAX: 952-896-3333 WEI: WWW.1arrkinhOfnaf.COIII Via Facsimile & U.S. Mail Re: Appeal by Paul and Julie Schwartz regarding 2120 Otter Lake Drive Our File #28,825 -03 Dear Members of the Board of Appeals and Adjustments: This firm represents Mark and Kathleen Smith in connection with their response to the appeal by Paul and Julie Schwartz (the "Schwartz") of the Smiths' request for a building permit. As a result of this appeal, the City has stayed the decision as to whether to grant a building permit to Mr. and Mrs. Smith. We submit this letter in support of the City Staff's interpretation of the City's Ordinances and in support of the City granting the building permit. In their submission, the Schwartz make certain admissions regarding the legality of Mr. and Mrs. Smith's proposed addition. First, the Schwartz admit that the proposed garage addition would be within the maximum accessory building size allowed by the City's Zoning Ordinance. Second, the Schwartz admit that the proposed addition to the house is within the legally allowed side yard set back requirements. Therefore, the Schwartz's question is solely with how the City defines that portion of the proposed addition that will be used by Mr. and Mrs. Smith and their children for recreational purposes. To be clear, this space is an expansion of the lower and main level living areas including a larger recreation and family room. It is our understanding that the City has issued building permits for similar uses, defining these uses as part of the home and not as an "accessory use." Mr..and Mrs. Smith simply request that the City provide them the same treatment. Discussion It is understandable that the City has not considered such uses accessory uses. A city has accessory use laws to prevent uses that detract from the property as a truly residential use (i.e., hobby farms, barns, home businesses, etc.). However, when a use is attached, fully enclosed and not distinguishable in appearance from the remainder of the home, the rationale to prohibit the use as accessory no longer exists. The attachment, enclosure and appearance of the structure mitigates the normal problems associated with an accessory use.