03-18-03 CCM - Laserfiche WebLink

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APPROVED: MARCH 18, 2003 constructed, but cannot be expanded without a variance. The shore impact zone is one half the lakeside setback or 50 feet. Bob Steigel, attorney for Kostelnik, stated Mr. Iostelnik is physically handicapped because he had a stroke in 1998. Mr. Steigel referred to a specific statute allowing physically handicapped hardship is referred to in a 1989 case, Knowlan vs. City of Eden Prairie. Attorney Steigel stated an undue hardship does not mean a property owner must show the land can be put to any reasonable use, only a showing the property owner would like to use the property in a reasonable manner. The hardship is related to the property owner and not the property. Attorney Filla stated Mr. Kostelnik is being asked to be treated differently. The City can grant a variance because of the criteria and not the physical impairment of the applicant. Council member Johnston stated he visited the site and does see the ambiguity and suggested a pragmatic approach. He suggested approving this without a variance. Council member DeLapp indicated the City has a code and does not allow this. Council member Dunn stated this issue always comes up. She said there is a reasonable use of the land now and the variance cannot be approved. If there is a flood, property owners come back and ask why the City let him build here. Once the porch is there, the concern is that it can be enclosed and turned into living space. Council member Siedow stated this request does need a variance per the advice of the City Attorney. The Council has to address this application like any other application for a variance from the OHWM regardless if the applicant is handicapped. The porch could be enclosed, but no additional deck added. Mayor Hunt supported proceeding with the variance method and would recommend approval because the porch would not encroach closer to the lake. Council member Johnston stated there is an ambiguity in the code, and that the project is consistent with the neighborhood, supported by the neighborhood, and the Council should address changing the code. M/S/F DeLapp/Dunn - to support the denial recommendation and Findings of Fact of the Planning Commission. (Motion Failed 2-3:Siedow, Hunt, Johnston.) The Council members that were in favor of approving the variance request indicated there is already an existing deck, and that the mini deck does not encroach closer than the main structure. There is no further encroachment to the lake. Any new construction is farther away from the lake. This is a not a living space, but a 3 season porch with no heating, and gutters installed as far from the lake as feasible. Condition of approval could be conditioned on compliance with the DNR recommendation. LAKE ELMO CITY COUNCIL MINUTES MARCH 4, 2003