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Conditional Use Permit for the proposed restaurant being closer than 250 feet of a residential zoning district. Since that restaurant was never constructed, the originally approved CUP expired. The conditions approved for this site in 2003 are listed below: a. Garbage areas must be enclosed with materials that match buildings and must be located on the southwest corner. b. Lighting must be "down-spill",with no spillage to residential properties across Kenzie Terrace and conform to adjacent area(St. Anthony Boulevard). c. Hours for outdoor seating shall not exceed 10:00 p.m. d. No music or other artificial noise shall be audible from any residential district. e. City engineers must approve the plan,including a determination that the proposed plan will not have an adverse impact on the current water run-of situation. f. The patio will be on the east side of the building. g. Break up mass and improve the landscape to the north side of the building. h. The design of the building shall conform to the design of the existing main building. i. Hours of operation shall coincide with liquor service hours. B. VARIANCE PETITION-Building Setback-Outlot. In revising the original site plan due to changes in proposed uses and the location of those uses, AMCON has presented a site plan that proposes a 4,500 SF building,which represents a reduction in size of the building footprint by 1,500 SF. This revised site plan also reduces the number of variances required for the construction of the building planned for the Outlot. Section 1635.05,Subd.4 of the City Ordinance states that the front yard of a_commercial building needs to be at least 35 feet or a distance equal to the average of the front yard depths on the two adjacent lots. Since this site is on a corner lot,the 35-foot front yard requirement was used. As the revised site plan shows, the northwest corner is 5 feet from the property line and the northeast corner is 12 feet from the property line. As Mr. Tucci states in his letter dated July 6, 2005,with the reduction of the size of the proposed restaurant, the new proposed plan encroaches less into the setback than the original site plan that received a setback variance in 2003. The current site plan requires a variance of 30 feet for the northwest corner and a variance of 23 feet for the northeast corner. Previously,Council had approved a variance of 30 feet for each corner. Resolution 03-053,A RESOLUTION RELATING TO VARIANCE REQUESTS FOR THE PROPOSED REDEVELOPMENT OF THE CORNER OF KENZIE TERRACE AND HWIGHWAY 88,approved on July 15,2003,identified the following Findings of Fact based on hardships that exist for this property in support of granting the setback variance: a. The property is currently blighted,poorly planned with regard to layout and is an overall detriment to the area. b. Undue hardship exists and is a result of an oddly shaped parcel that is generally triangular in shape with a rounded side. c. These circumstances are not caused by the applicant or property owner. d. The variance,if granted,would not alter the essential character of the locality,but would essentially replace existing blighted structures with new, more aesthetically pleasing buildings. The property cannot be put to reasonable use without the requested variance because even reconstructing the existing blighted buildings on their same footprints would require setback variances. e. Economic considerations alone are not the basis for this request. f. The circumstances creating this hardship are unique to this oddly shaped property. H:\Planning\Staff Reports\2005\081605 Staff Report AMCON Staff report.doc 2