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MEMORANDUM TO: Jim Ericson.Planning Associate FROM: Scott J. Riggs,Assistant City Attorney DATE: December 2I. 1998 RE: variance Discussion at Mounds View Planning Commission Meeting Per your request,the following is a summary of the advice provided to the Planning Commission on Wednesday, December 16, 1998.regarding the status of the variance application which the Planning Commission previously forwarded to the City Council. The specific discussion centered on whether or not such a variance request was in fact warranted, or if the individual applying for the variance had a continuing non-conforming use within the City. . 1 call your attention specifically to Chapter 1123 of the City's code as to non-conforming buildings, structures and uses for review of this matter. It was my understanding that the present matter before both the Planning Commission and the City Council involved the . removal of an existing driveway that was a non-conforming use and the reconstruction of the driveway to the extent it had previously existed. The question that arose from such a situation was whether the situation constituted the repair,maintenance,replacement or • the damage and destruction of the previous driveway. The advice provided to the Planning Commission was that the most logical reading of the City's code is that Section 1123.07 as to damage and destruction applies since the removal of the previously existing,non-conforming driveway constituted the destruction to the extent of more than 50% of the fair market value of the then existing driveway. As such,from such date of the driveway removal(i.e..the destruction).the grandfathering affect of the non- conforming use ceases to exist and the driveway became subject to all the regulations specified in the present zoning regulations of the City Code. Thus,the reconstruction of the driveway can only be to the extent and it conforms to existing City regulations. Any reconstruction to the extent of the previously existing driveway would create an illegal use rather than a non-conforming use. Also relevant to the review of this matter was that the City's Code is unclear as to what constitutes a repair of a driveway. A discussion was bad with the Planning Commission as to whether such a definition could be drafted wherein repair of a driveway would be outside the most logical reading of a"destruction-of a non-conforming use under City Code Section 1123.07. It was noted to the Planning Commission that any rififiniticmal change involving the repair of a driveway must also consider the effect on the general nature of a non-conformity under the Code. As an aside, it was also noted in addition to the curb cuts restriction which necessitated the variance request before the Planning Commission and City Council. the Code also provides in Section 1121.03 Subd.Sa that"no curb cut access shall be located less than SIR-155755 MU21429