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APR 12 '96 15:41 KENNEDY & GRAVEN P.3 • Joyce Pruitt • ( April 12, 1996 Page 2 manner that carries out the intent of the City Code and protects the public interest and could, within their discretion, interpret the City Code differently to permit the construction of the proposed gas station pump canopy. The disadvantage to such an interpretation and conclusion would be that it would appear to go against the intent of Chapter 1123 which states that it is "the intent of this chapter that all non- conforming uses shall be eventually brought under conformity." By allowing new structures to be built in connection with a non-conforming use, it is more difficult to bring that non-conforming use into conformity and may create some difficulty in the future in making a distinction as to which types of new structures can be built on a non-conforming use property and which types of new structures cannot be built on a non-conforming use property. Answer to Question No. 2 By strictly applying the criteria for granting variances under Chapter 1125.02, subd. 2 of the City Code, the applicant would not appear under the facts to have a case for an undue hardship exception justifying a variance. No exceptional or extraordinary circumstances apply to the applicant's property which do not apply generally to other properties in the same zone or vicinity since all of the properties in the same zone or vicinity would have to abide by the same 30-foot setback requirements of the City Code. Again, however, the Planning Commission and the City Council have discretion to grant a variance but would have to make a finding •"" that based on the testimony and evidence presented to the Planning Commission that all of the criteria for granting a variance set forth in Section 1125.02, subd. 2 have been met. The fact that Chapter 1104 of the City Code relating to setback requirements was adopted in 1988 after the gas station was in operation would not by itself be the basis for granting a variance or finding an undue hardship for the applicant, since once again, exceptional or extraordinary circumstances would not appear to apply only to the applicant's property since all of the other properties in the same zone that would have been in existence prior to 1988 would also now be bound by the same setback requirements. ANALYSIS Section 1123.02, subd. 1 of the City Code states that "any structure or use lawfully existing prior to zoning use change will not be enlarged but may be continued at the size and in the manner of operation existing upon such date except as hereinafter specified or subsequently amended." Section 1123.01 of the City Code states that "it is necessary and consistent with the establishment of these districts that non- conforming buildings, structures and uses not be permitted to continue without restriction . . ." and "it is the intent of this chapter that all non-conforming uses shall be eventually brought into conformity." Such non-conforming use requirements are typically interpreted very strictly against allowing new structures to be built on a non-conforming use property. The P1Artnir,g Commission and City Council would certainly be acting within their proper discretion to apply such a strict interpretation to carry out the intent of the City • Code relating to non-conforming uses. II RC 403015 $U125-45