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STAFF REPORT FOR PLANNING CASE NO. 438-96 • MAY 13, 1996 • PAGE TWO OF THREE nonconforming use with"any structure or use lawfully existing prior to the zoning use change shall not be enlarged but may be continued at the size and in the manner of operation existing upon such dates, except as hereinafter specified or subsequently amended." The intent of Chapter 1123 of the Municipal Code is stated as"all nonconforming uses shall be eventually brought into conformity." City Attorney Long's opinion to the Planning Commission was that by allowing new structures to be built in connection with a nonconforming use, it will be more difficult to bring the nonconforming use into conformity and may create come difficulty in the future in making a distinction about which types of new structures can be built on a nonconforming use property and which types of new structures cannot be built on a nonconforming use property. The applicants have stated that other cities do not consider a canopy a permanent structure. In response, the Attorney has cited two Minnesota Court cases which clearly state that a gas pump canopy, like the one being considered here, is a structure of building within the meaning of zoning code language similar to that of the Mounds View Zoning Code. See, Amoco Oil Co. v. City of Maple Grove, 191 WL 115114 (Minn. App. 1991) (unpublished opinion) and Crown Coco, Inc. v. Commissioner of Revenue, 336 N. W.2d 272 (Minn. 1983) (cases attached). If the City Council considers allowing the construction of a 24'x 44'gasoline pump canopy as • requested by the applicant, the Council should also consider establishing criteria which would distinguish this request from future requests to build new structures on other nonconforming use properties. The Planning Commission has denied this variance request based on the rationale listed above. Resolution No. 444-96 is attached for your review. Should the City Council choose to interpret the City Code differently in order to allow a canopy at the site of a legal nonconforming use, the second issue to consider would be whether to grant a variance for a twenty-four foot encroachment into the required thirty foot front yard setback. Chapter 1101.01, Subd. 3c, requires a 30-foot minimum setback distance for all corner lots. As noted above, the Planning Commission did deny this variance request based on the findings that the property is currently zoned as a legal nonconforming use and that the applicant did not present a case for an exception. The Attorney's opinion presented to the Planning Commission found that the"no exceptional or extraordinary circumstances apply to the applicant's property which do not apply generally to their properties in the same zone or vicinity since all of the properties in the same zone or vicinity have to abide by the same 30 foot setback requirements of the City Code." Chapter 1104 of the City Code relating to setback requirements was adopted in 1988, after the gas station was already in operation. This criteria alone would not be a solid basis for granting a variance or for finding an undue hardship, because this case is not exceptional since all other • properties in the same zone that would have been in existence prior to 1988 would also be held to the same setback requirements.