PUBLIC HEARING: Consider Request for Variances to Side Yard Setback for an Existing Pool and to Minimum Lot Size in the Critical River Overlay District on the Properties Located at 14255 and 14235 Bowers Dr. NW; Case of Travis and Bridgette Richard and Lucas Hase

The City has received an application for a variance to minimum lot size standards in the Critical River Overlay District to accommodate an Administrative Subdivision that would resolve an encroachment of an existing swimming pool across a property boundary.  In reviewing the request, it became evident that the Administrative Subdivision, as proposed, would correct the encroachment but would not fully address the minimum required setback for a pool from an adjoining property.  The request involves two (2) adjacent properties, 14235 Bowers Dr. NW and 14255 Bowers Dr. NW.

Staff attempted to notify all Property Owners within a 350 foot radius of the Properties of the Public Hearing via Standard US Mail. The Public Hearing was also published in the City's official newsletter, the Anoka County Union Herald.

In 1985, a Building Permit was issued by the City for an in-ground swimming pool to be installed at 14255 Bowers Dr. NW.  The Site Plan submitted with the Building Permit application indicated the swimming pool would be at least forty (40) feet from the side property boundary (exhibit attached).  The property located at 14235 Bowers Dr. NW recently sold and as part of the title work for that transaction, it was discovered that the swimming pool affiliated with 14255 Bowers Dr. NW actually encroached onto 14235 Bowers Dr. NW by almost ten (10) feet.

The most reasonable way to address this encroachment, which has now existed for nearly thirty (30) years, is to process an Administrative Subdivision to realign the common lot line between these two parcels to eliminate the encroachment.  However, both parcels are located within the Critical River Overlay District, which has a minimum lot size requirement (for those parcels located within the Rural Service Area) of 2.5 acres.  Both parcels are approximately one (1) acre in size and are considered lawful, non-conforming relating to lot size as they were platted in 1973, prior to the adoption of this overlay district.  The Administrative Subdivision would result in the reduction of acreage from 1.01 acres to 0.89 acres for the property located at 14235 Bowers Dr. NW.

Under City Code Section 117-590 (Administrative Subdivision), the Zoning Administrator cannot approve the realignment of lot lines if doing so would circumvent other zoning regulations and City Code Section 117-57 (b) prohibits expansions of non-conformities.  Thus, after reviewing the information with the City Attorney, it was advised that an application for a variance to minimum lot size be processed and, if approved, that would allow the property owners (or their representatives) to proceed with an Administrative Subdivision to realign their common boundary without creating any new buildable lots.
 
In an attempt to minimize the enlargement of the non-conformity, and to maintain what had been perceived as the boundary between the two properties, the realigned boundary is proposed to be one (1) foot off the existing privacy fence that encloses the in-ground swimming pool.  This proposed location results in the existing swimming pool being located approximately six (6) feet from the 'new' lot line, which is deficient of the minimum required setback of ten (10) feet.  Thus, a variance to the minimum required setback for swimming pools is also being processed as part of this request.

When contemplating a variance request, there is a three (3) factor test for practical difficulties that must be met by the Applicant. The following are the three (3) factors:

1. Is the property owner proposing to use the property in a reasonable manner?
2. Is the landowner's problem due to circumstances unique to the property and not caused by the landowner?
3. If granted, would the variance alter the essential character of the locality?

Swimming pools are considered to be a reasonable accessory use of residential properties.  Neither of the current fee title owners of the two properties were responsible for the encroachment that exists and both parties are working to resolve the matter in a reasonable manner.  Both property owners, and likely the majority of the neighboring property owners, had thought the property line between the two parcels was just beyond the privacy fence.  That, coupled with the fact that the request does not propose any new structures or uses, would result in no alteration to the essential character of the locality.

As a reminder, the Planning Commission acts in a quasi-judicial capacity when considering variances rather than a providing a recommendation.

Alternatives

Option 1: Adopt Resolutions #15-03-063 and #15-03-064 approving a variance to minimum lot size requirements in the Critical River Overlay District and adopt Resolutions #15-03-065 and #115-03-066 approving a variance to minimum setback standards for an existing in-ground swimming pool.  The encroachment has existed now for nearly thirty (30) years and was only recently discovered.  Processing an Administrative Subdivision to realign the common boundary between the two parcels is the most reasonable way to address this matter.  In an attempt to limit the increase in non-conformity (further reducing the size of 14235 Bowers Dr. NW), the proposed new lot line was positioned just outside the fence, necessitating the need for a variance to pool setbacks as well.  As this only impacts these two parcels and the 'new' lot line will be located where both parties thought it was, Staff supports this option.

Option #2.  Adopt Resolutions #15-03-063 and #15-03-064 only and require the proposed line be adjusted to eliminate the need for the variance to pool setbacks.  While this may be possible, it would even further reduce the lot size of 14235 Bowers Dr. NW.  Furthermore, the proposed lot line is positioned where both parties had believed the boundary already existed.  Staff does not support this option.

Option #3.  Do not approve either variance.  This action would result in the need to remove the in-ground swimming pool and/or require the two property owners to execute some form of an agreement for the encroachment.  The former action would result in requiring the removal of a pool that has been in place since 1985.  The latter would likely lead to issues with home owners insurance policies and may be a red flag in the future if either property were listed for sale.  Staff does not support this option.

All costs associated with this request are the Applicant's responsibility.

Staff recommends approval of both variances.

Motion to adopt Resolutions #15-03-063 and #15-03-064 approving a variance to minimum lot size on the property located at 14235 Bowers Dr. NW.

-and-

Motion to adopt Resolutions #15-03-065 and #15-03-066 approving a variance to pool setbacks on the property located at 14255 Bowers Dr. NW.