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Mounds View Planning Commission April 2, 2003 Regular Meeting Page 6 ________________________________________________________________________ Commissioner Johnson said he is not willing to risk the City having to pay $75,000 to solve the problem. He then said that in no other cities do they require new developments to match the prevailing setbacks. Commissioner Scotch asked how this happened and then said she does not feel the developer or homeowner should pay a penalty when it was a City error. Mr. Zwirn commented that this is very similar to the Mezzenga property and there are ongoing issues with that property due to a questionable variance that allowed the development to proceed. Commissioner Johnson commented that in many cases the hardship criteria are questionable and subjective and he does see a hardship in this case. The Commissioners discussed other circumstances that were similar to this one that were allowed. Commissioner Zwirn asked whether the City Attorney has looked at the wording of the International Building Code that even if it is an error by the City, the situation must be rectified and whether that is open to interpretation. Director Ericson commented that everything is open to interpretation when you are an attorney. He then said that it is probably a defensible position but the costs associated with the litigation may not warrant doing so. Commissioner Miller indicated she felt the Commission should find that no hardship exists as she does not feel the criteria are met. She then said that the Commission is bound by the hardship requirements but the Council is not and she would like to deny the variance and let them appeal to Council where Council could allow it if so desired. Director Ericson commented that often times there is subjectivity involved with the hardship criteria. He then said he agreed with Commissioner Zwirn that if this had been asked for ahead of time it probably would have been denied and asked whether the error itself warrants the hardship for the developer. He then said that, litigation possibilities not withstanding, he feels that there is a hardship in this case. Commissioner Hegland commented that it is not as simple as whether the Commission would have approved this if asked for ahead of time, as the facts are the building is there and it is cost prohibitive to move it. Commissioner Zwirn commented that he questions the integrity of this body if it does not make sure that the criteria are met when granting variances. Commissioner Hegland commented that justifiable criterion is that the building codes are for new construction and this is reconstruction and the codes do not necessarily fit. He further