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December 16, 2024 Sophia Jensen Senior City Planner 3880 Laverne Ave N Lake Elmo, MN 55042 Re: Chavez Bluff and OHWL Setback Variance – PID 14.029.21.24.0004, Sunfish Lake Members of the Board of Adjustment, Thank you for the opportunity to comment on this application requesting bluff and ordinary high water level (OHWL) setback variances. My comments and recommendation are based on an evaluation of the facts presented in the application against the criteria in Minn. Statute §462.357. Based on this evaluation, the DNR recommends denial of the variance. Summary of variance request The applicant has requested a variance to construct a new, large home (2,437 sq. ft. footprint) on the face of the bluff on Sunfish Lake. The home would be located below the top of the bluff as delineated on the site plan. This is an extreme deviation from the required setback of 30 feet from the top of the bluff. In addition, the applicant has requested a variance to place the new home at approximately 125 feet from the ordinary high water level (OHWL) of Sunfish Lake. This is a significant deviation of approximately 25 feet from the required setback of 150 feet. We note that the application states that the house location and size are subject to change, and that the applicant has no intention of constructing a home on this lot. In this letter, we have evaluated the request given the limited facts available. However, we believe the city should not entertain granting a variance until an actual building plan that can properly be evaluated is submitted. Evaluation Criteria and Approach The role of the Board of Adjustment (BOA) is to objectively evaluate whether the facts meet the statutory criteria for approving a variance. Under Minn. Statute §462.357, variances can only be approved when they are in harmony with the general purposes and intent of the zoning code and when they are consistent with the comprehensive plan. Specifically, variances can only be granted when the applicant proves there are practical difficulties in complying with the zoning code. State law only allows variances if all three practical difficulties criteria are met: • There are unique circumstances to the property not created by the landowner. • The property owner proposes to use the property in a reasonable manner not permitted by the ordinance. • Granting the variance will not alter the essential character of the locality. If any of these criteria are not met, then the variance must be denied. State law also does not allow approving variances solely for financial reasons. The decision to approve or deny a variance requires a rational explanation, based on facts, not on proposed conditions of approval. Conditions may be considered, but only after a decision is made to approve. Additionally, opinions of support or opposition, without supporting evidence, from neighbors or the public are not facts and should not be considered. This property is in the shoreland of a public water, an area that the state has identified as a sensitive area where special laws are needed to protect scenic character; aquatic and riparian vegetation; habitat; and to reduce the flow of nutrients into surface waters preventing excessive algae and plant growth to maintain safe recreational opportunities. This context