Discussion:
The Board of Adjustment and Appeals denied Mr. Reiland’s request, 7-0, for a variance for an over height structure but did approve a variance to allow metal siding on his building. The Board found that the siding material requirements were changed since his original out building was constructed and would allow a matching material. After a lengthy presentation by all parties and discussion, they found that there were no grounds to grant the variance for the over height request. It was clear from the notes on the approved Building Permit and from the City Code that the height, measured at the midpoint, was limited to 15 feet. The height as built, measured at the midpoint, is 19 feet.
Background
Mr. Reiland submitted a building permit to construct a second accessory structure on his property, and during the construction and inspections period it became apparent that the 36’ by 56’ structure was going to exceed the maximum allowed height (condition of permit approval was that the height of building must not exceed 15’ at midpoint of roof, noting that a change of the original plan was required to reduce the height). He subsequently submitted a Variance application to allow an over height accessory structure which was denied.
Section 151.007 (B) Accessory structures.
(2) Size.
(a) Except in the Agricultural Preservation (AG) Zone, no accessory structure shall exceed the height of the principal building or 15 feet in a residential zone, whichever is less. In the Low-Density Residential (R-1A), Urban Residential (R-1B), Old Shakopee Residential (R-1C), Medium-Density Residential (R-2), and Multiple-family Residential (R-3) Zones, no accessory building shall exceed 10% of the lot area or exceed 75% of the square footage of the footprint of the principal dwelling, whichever is less.
(b) A conditional use permit is required to exceed the above size requirements in the Old Shakopee Residential (R-1C) Zone. A variance procedure is applicable in all other districts.
This property is zoned Rural Residential (RR) Zone, therefore, a variance is required.
The definition of height in the City Code is the vertical distance between the ground and one-half the distance between the lowest eave and the highest gable on a pitched roof. For new construction, the ground level shall be the original or pre-construction average ground elevation adjoining the structure’s footprint. With this project, it was difficult to establish the pre-construction average ground elevation since the project was started over 1 year ago.
The height proposed for this structure would be slightly taller than the existing structure, which is approx. 18’-8”. Regarding the first accessory structure height, the building inspector of record failed to measure the height properly and issued a final certificate of occupancy. That inspector is no longer employed with the City of Shakopee. Regardless, that oversight has no bearing on whether this second accessory structure is approved or denied.
The criteria to meet a variance are:
Criterion 1
The strict enforcement of the ordinance provisions would cause practical difficulties because of circumstances unique to the individual property under consideration. Practical difficulties mean the following:
1.A. The property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance:
Finding 1.A. The property owner proposes to use the property in a manner not permitted by the zoning ordinance. The ordinance has established language that allow property owners to construct accessory structures on their property, with height, area, setback and materials standards, within certain parameters. Rural Residential property owners are afforded regulations that allow larger structures than one may find in the urban residential subdivisions. This application pertains to a request for a structure that exceeds those regulations, which one may view as unreasonable in this particular case. The Applicant has proposed to construct a structure so that a semi-trailer can fit in the structure. Such a use is not allowed in this zone.
1.B. The plight of the landowner is due to circumstances unique to the property;
Finding 1.B. The circumstances of this project are not unique to the property. The property owner is desiring the ability to construct a 2nd accessory structure that would match the existing structure. Staff believes the property owner could have constructed a 2nd structure in compliance with the height regulations of the City Code, and there are no known unique circumstances that would have prohibited that construction. The property owner has provided the city staff with a solution whereas the building could be brought into compliance with no need for a variance.
1.C. The circumstances were not created by the landowner;
Finding 1.C. The circumstances were created by the landowner’s desire to have a taller accessory structure.
1.D. The variance, if granted, will not alter the essential character of the locality; and
Finding 1.D. The building height would have more of an impact on the character of the locality, as the massing of the structure is approx. 25% greater than allowed by code, and the setback is established at the min. distance (5’), which causes it to appear all that more imposing.
1.E. The problems extend beyond economic considerations. Economic considerations do not constitute a practical difficulty if reasonable use for the property exists under the terms of the ordinance.
Finding 1.E. The request is not economic in nature, rather a desire to match an existing accessory structure.
Criterion 2
It has been demonstrated that a variance as requested will be in keeping with the spirit and intent of the Zoning Ordinance.
Finding 2 The proposed variances would not be in keeping with the spirit and intent of Chapter 151.
Criterion 3
The request is not for a use variance.
Finding 3 The requests are not a use variance.
Criterion 4
Conditions to be imposed by the Board of Adjustment and Appeals will insure compliance to protect the adjacent properties.
Finding 4 The Board allowed the use of the metal siding.
The adjacent property owner originally objected to the height of the structure and actually had an attorney present their objection at the Board of Adjustment. The applicant now has the support of that owner and has agreed to some mitigation. However, whether an adjacent property owner objects or supports a variance, it is not relevant since the Council must review if the Board did not properly apply the criteria in its decision. Clearly, the applicant was aware of the city’s regulations since he met with staff on several occasions and the condition was printed on his permit.
The applicant to date has only called for a footing and foundation inspection and had not yet called for a framing inspection when the inspector would have noted that the structure was over height and not approved to move forward. A city building inspector has visited the site and issued a stop work order since the building does not currently meet the city code.