Schille Variance

DEPARTMENT OF PUBLIC WORKSZoning Division

1610 Hwy 23 North • Sandstone, MN • 55072(320) 216-4220 • (800) 450-7463 x 4220 • Fax (320) 216-4202

08-090JOHN & KATHY SCHILLE

Variance

SITE INFORMATION

APPLICANTS: John & Kathy Schille

LEGAL DESCRIPTION: Lot 8, Block 1, Shuey’s Spring Valley Estates

LOCATION: End of Riverside Lane – river side of the road

TOWNSHIP: Pine City

PARCEL #’s: 26.5512.000

SIZE: ≈ 1.5 acres

EXISTING LAND USE: Residential Recreational

ZONING: RR Residential Recreational

COMPREHENSIVE PLAN: Not applicable

REQUESTED ACTION: Variance from the requirement of § 5.21.A of the Pine County Shoreland Management Ordinance of a 150-foot setback from the Ordinary High Water Level (OHWL) of the Snake River. The applicant desires to continue to keep the existing structure ≈ 100 feet from the OHWL.

APPLICABLE REGULATIONS:

§’s 3.6 (Variances) and 5.21.A (Placement, Design, and Height of Structures – Placement of Structures on Lots) of the Pine County Shoreland Management Ordinance

SURROUNDING LAND USE AND ZONING

Location Adjacent Land Use Adjacent Zoning Comprehensive Plan

Zoning within ½ Mile

North Residential Recreational

Pine CountyRR Residential Recreational

No mapPine City Township;

RR Residential Recreational

South Residential Recreational




East Vacant WoodedPine County


No map RR Residential Recreational

West Residential Recreational




Prepared by Dale R. Powers, AICP, Zoning AdministratorSeptember 16, 2008

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AGENCY REPORTDEPARTMENT OF

NATURAL RESOURCES

In a July 31, 2008 e-mail from DNR Area Hydrologist Lonnie Thomas, he states his first concern is that the structure appears to be in the flood plain. Thomas is not as concerned about the setback, stating “the issue of hardship rests with the [Board of Adjustment]. A copy of the Thomas e-mail is included with this report as an attachment. Thomas’ concerns were communicated to the applicant in a letter dated July 31, 2008. At that time, the applicant was directed to provide the requested elevation information. His response – in an August 7, 2008 e-mail – will be discussed later in this report.

BACKGROUND: The applicants, John & Kathy Schille, are requesting a variance from the requirement of § 5.21.A of the Pine County Shoreland Management Ordinance of a setback distance of 150 feet from the OHWL of a Forested and Transition River. The Snake River is classified as a Forested River by the Minnesota Department of Natural Resources and the Pine County Shoreland Management Ordinance. The Schille’s are requesting the variance to be authorized to continue the placement of their structure at a distance of approximately 100 feet from the OHWL of the Snake River.

Topographic map of the area. The subject property is near the southeastern corner of Section 34.


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Aerial photography of the area. The subject parcel is in the southeastern corner of Section 34.

The record indicates that in early May 2004, the applicant cleared an area on the subject parcel for the structure, dug holes for the footing, constructed framing for the floor of the structure, and had the framing completed and set.

After starting construction, the Schille’s applied for a Building Site Permit. A copy of the permit application – date stamped May 20, 2004 – is included with this report as an attachment. Note the application requested a 12 x 16 x 9 storage building. Also note that Schille indicated the setback from the back property line for the structure was 200 feet. Environmental Technician Robby Fischer, during a pre-permit site visit, noted that construction had started and that the location of the structure was too close to the river. Fischer placed a stake where the 150-foot mark was on the property and advised the Schille’s to relocate the structure behind the 150-foot stake.

On June 14, 2004, a Building Site Permit was issued by Pine County Land and Zoning (File # 04-88) authorizing “construct[ion of] a 12 foot x 16 foot x 9 foot high storage building, per staked area…” A copy of the Building Site Permit is included with this report as an attachment.

On October 27, 2004, Fischer performed a post-permit inspection of the construction, and noted that the structure (a) was not moved; (b) had a deck attached to it; and (c) appeared to be converted to living space – as depicted by the following picture:


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Front view of “storage building”

Fischer’s file notes indicate that on the day of the follow-up inspection he advised Schille to stop work and move the structure back before continuing construction. Fischer also told Schille that if he intended to use this “shed” as living space the County would require a sewer system. A copy of Fischer’s file notes is included with this report as an attachment. The structure was not moved back, and Schille did not amend the permit application to account for the deck.

On July 13, 2007, Schille submitted an application for a mound septic system. Schille indicated to staff that he intends on building a cabin on the property in the future and the septic system will be servicing that structure. Schille placed a privy on top of the septic tank:

Privy on top of septic tank of constructed mound SSTS. Background structure is the neighbor’s – Everette Wright


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The location of the privy is not proximate to the “storage building”. Staff noted the presence of a primitive facility closer to this structure:

The toilet seat cover and bucket is behind the structure and shrouded by what appears to be a shower curtain.

This issue remained dormant until earlier this year, when staff reviewed the file and re-inspected to see if compliance was achieved. After determining that compliance was not achieved, a “Notice of Violation” was issued to the Schille’s requiring them to either relocate the structure of apply for a variance. The Schille’s applied for the variance. A copy of the Application for Variance is included with this report as an attachment.

Per the provisions of § 3.91 (Notifications to the Department of Natural Resources), the variance request was forwarded to DNR Area Hydrologist Lonnie Thomas for review and comment. See “Agency Report” section of this report for DNR comments. A copy of the DNR comments is included with this report as an attachment. At this point in the review process, the issue of flood plain was first identified. Staff downloaded a copy of the FEMA FIRM map for this area, which revealed the likelihood that the structure was placed within the flood plain area. The FEMA FIRM map for the area is below:


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SCHILLE RESPONSE

The Schille parcel is near the 860 elevation in the lower right hand corner of the map.

Staff requested Schille to provide documentation that the location of the structure was not in the flood plain. As of the date of this report, no such documentation has been forwarded.

Robby Fischer was asked about whether the flood plain issue was discussed at the time of permit issuance. Robby responded that the previous zoning administrator, Robert Pulford, was aware of the concern and took the matter under advisement. However, no determination was made by Pulford on whether the structure was, or was not, in the flood plain.

Robby Fischer will be present at the public hearing to respond to any questions the Board may have on this matter.

John Schille related to me that he did not move the structure because of the following reasons:

1. A neighbor told him it looked better closer to the river. 2. The developer (Shuey) advised him that the lot was grandfathered in and

did not need to be 150 feet away from the Snake River.

While the first comment has no bearing on the matter, the second comment was investigated. § 6.12 (Non-Conformities – Construction on Non-conforming Lots of Record) addresses lots of record within the Snake River Watershed District, as follows:


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“Lots of record within the Snake River Shoreland District, which were platted or created between October 1, 1973 and January 1, 1993, may be allowed as building sites without a variance provided (1) the lot width at the ordinary high water level and at the setback line is a minimum of one-hundred (100) feet; (2) structures must be setback a minimum of seventy-five (75) feet from the ordinary high water level; and (3) sewage treatment systems shall be setback a minimum of one hundred (100) feet from the ordinary high water level.”

Shuey’s Spring Valley Estates was recorded as Document # 339894 on March 3, 1994. A copy of the recording instrument is included with this report as an attachment. Consequently, the provisions of § 6.12 do not apply to Shuey’s Spring Valley Estates.

It should also be noted that on December 30, 2004, a revised “Covenants and Restrictions For The Plat of Spring Valley Estates and Shuey’s Spring Valley Estates” was recorded as Document # 345835. A copy of this document is included with this report as an attachment. Among the restrictions recorded are two that are pertinent to this case, as follows:

“…subject the properties to the covenants, restrictions, easements, charges, and liens set forth in this declaration each and everyone of which pertains to said properties and is for the benefit of each future owner thereof.

1) All applicable state and local codes and ordinances.…4) No residential building shall be less than 700 square feet of living area.”

John Schille, in an August 7, 2008 e-mail, wanted to relate his version of the events. Below is a true copy of the e-mail (hard copy included as an attachment):

Mr. Dale Powers.

Dale, I have some concerns about the requirement to move the structure located on my property, BLOCK 8 Shuey Estates, and would like to have some written correspondence about this. That way we have some type of record to refer back to. I would simply like to state the facts, from my perspective, as to history of this. We the purchased property April 15, 2004. In early May I cleared area on the desired location for structure, dug holes for the footing, constructed frame for floor, had the frame completed and set in proposed area. I filed a permit application for 12' X 16' building, giving location and description of area of property where structure would be built. I waited approx 4 weeks for permit, did not do anything to frame, left it completely alone waiting for the permit. Finally called inquiring about status of the permit, and approx 4 days later received the permit, Number 04-88 Dated 6/14/2004. It stated: WORK AUTHORIZED: construction for a 12 X 16 X 9 building per staked


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area and application received 5/20/04. NO COMMERCIAL USE ALLOWED PERMIT signed by Robert Pulford,(?) Land and Zoning Supervisor, and byRobert Fozded (?) Zoning Technician. Sorry, I can't read these signaturevery clearly. I started construction in June 2004 after receiving authorization/permission to proceed with the construction. The structure was pretty much completed by end of August. In October 2004, Mr. Robert Fozded came to property asking if I had a permit for this construction and who had given it to me. I showed him the permit and told him that he gave it to me. I was told ONLY THEN that I was too close to river and needed to stop all construction and move the building. All construction was pretty much finished, as four months had passed since I'd received the permit. My concern, what changed from June to October regarding the permit approval? Permit was issued in June granting permission to proceed with project on that specific site. In October a verbal notification was all I received from Robert about the need to move the structure. No written notice was ever issued. I did not move the structure, had no issues with Pine County on this matter for almost four years. July 2008 I received a violation in the mail for the septic system installed last August, 2007. I contacted the Pine County Zoning Commissioner, Mr. Dale Powers, and told him I followed all the instructions and details given me by his inspector and had not proceeded with anything until I was given approval. The inspector finally gave me the ok to cover up everything and finish the septic, which I did. After explaining this to Dale, we received compliance notification for the septic system dated July 9, 2008. One week later, I received another violation regarding the 12 X 16 structure stating it was too close to the river. The structure was never moved. Once I received the permit from Pine County Zoning Commission in 2004, I assumed that getting the permit meant that it was in compliance and authorization to build the 12X16 structure was granted. In JUNE of 2004, with the floor frame just sitting in the ground waiting for that authorization, why was I not informed at that time that I may be in violation by being too close to the river. It would have then been easy enough to move back to new distance, dig new holes, get a couple of friends and lift the frame to the new location and then finishing the structure. Again, in October 2004, with structure complete, I was given verbal instruction, by the same inspector who first issued the permit four months prior, that I now needed to stop construction and move the structure. Now that it is complete I have to move it??? Why was the permit ever issued in the first place in June 2004 if I was in violation? If a request is granted, how can it be reversed verbally four months later and in writing four years later? July 2008, I received a violation in the mail for the septic system, which I was in compliance with. Shortly thereafter, I received violation notification regarding location of the structure. Variance was applied for to keep structure at current site, and now days later I am informed that the structure is the Snake River flood plain. What's going on here?


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ANALYSIS §’s 3.61-3.64 of the Pine County Shoreland Management Ordinance outline criteria on which a variance can be granted. That criteria, along with staff’s opinion on each item, is as follows:

1. The condition causing the hardship is unique to that property. FALSE. Mr. Schille, by his own admission, stated in his August 7, 2008 e-mail that “[I] n early May I cleared area on the desired location for structure”. If the area where the structure is located was a natural clearing, an argument could be made that a hardship would have existed if Schille was forced to clear woods for a building site.

2. The variance is proved necessary in order to secure for the applicant a right or rights that are enjoyed by other owners in the same area or district. FALSE. In fact, the opposite is true, in that Schille is requesting a variance to secure a right not enjoyed by other owners in the same area.

3. The granting of the variance will not be contrary to the public interest or damaging to the rights of other persons or to property values in the neighborhood. FALSE. Granting the variance will be contrary to the public interest in that it demonstrates to the public that building activity can take place prior to the application for a permit, and can continue despite ignoring directives by County staff to relocate the structure to conform with the Shoreland Management Ordinance requirements. The rights of other persons in Shuey’s Spring Valley Estates are damaged by the applicant’s violation of the recorded covenants and restrictions for building activity in the subdivision.

4. The granting of the variance will not be contrary to management policies of the area or district. FALSE. The rationale behind the 150-foot setback requirement is to provide protection for the visual esthetics of the Snake River. The rationale behind elevation of the structure so that the lowest floor is above the RFPE of the Snake River is to ensure that flood waters do not inundate the structure and potentially send it down the Snake River and eventually the St. Croix River, which is designated a National Wild and Scenic River.

In addition, Minnesota Statutes Chapter 394.27, Subd. 7 outlines certain requirements for the establishment of a “hardship”. These requirements, followed by staff analysis, is as follows:

1. The property in question cannot be put to a reasonable use if used under the conditions allowed by the official controls. FALSE. Placing the structure 50 feet farther back from the OHWL does not impede on the reasonableness of the use.

2. The plight of the landowner is due to circumstances unique to the property not created by the landowner. FALSE. There are no unique circumstances to the property. The landowner created this plight by starting construction of the structure prior to applying for a Building Site Permit.

3. The variance, if granted, will not alter the essential character of the locality. FALSE. The essential character of the locality is that of structures following the 150-foot setback. As well, the developer recorded covenants that expressly stated that all properties are to follow “all applicable state and local codes and ordinances.”


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RECOMMENDATION: It is clear that John and Kathy Schille started land clearing and construction of the storage building before applying for a Building Site Permit to authorize it. If the Schille’s would have applied for the permit before starting construction, County staff would have reviewed the required staking of the area intended for placement of the structure and advised the Schille’s that the proposed location was not in conformance with the 150-foot setback from the OHWL of the Snake River.

As it relate to the setback variance request, the record to date does not support a finding of “hardship” or “practical difficulties” that would warrant the granting of the variance.

There are also issues relating to flood plain that need to be addressed – with or without the granting of a variance. If the Board of Adjustment finds that the applicant has meet the burden of “hardship” or “practical difficulty” and grants the variance request, it should condition the approval on the applicant securing a “spot elevation” at the location of the structure to determine whether the structure is below the RFPE of the Snake River and, if it is below that level, to comply with the requirements of §’s 4 and 5 of the Pine County Flood Plain Management Ordinance.

Central to this condition is a determination on whether the structure is an “accessory” structure or a “primary” structure. If the Board of Adjustment determines the structure is an “accessory” structure. § 5.22 of the Flood Plain Ordinance states that accessory structures that constitute a minimal investment and do not exceed 500 square feet of footprint may be internally floodproofed as directed by § 4.45 (c) of the same Ordinance. A copy of §’s 5.22 and 4.45 (c) of the Flood Plain Ordinance are included with this report as an attachment. While there is no running water or bathroom facilities in the structure, the presence of a deck on the structure suggests the structure is intended for more than storage. Additionally, the presence of a primitive bathroom facility suggests a more intensive use than mere storage. When questioned on that issue, Schille indicated that his permit says “building”, not “storage building”. This statement is contradicted by the plain language of the permit that states “storage building”. Schille’s statement suggests that he does not see this structure as an “accessory” structure but a temporary “principal” structure until such time that he builds a cabin farther up from this structure. In any event, the floodproofing requirements for “accessory” structures are less stringent than “principal” structures, which are referenced in § 5.2 of the same Ordinance. A copy of § 5.2 of the Pine County Flood Plain Management Ordinance is included with this report as an attachment.

If the Board of Adjustment concurs with staff that the burden of proof on “hardship” and “practical difficulty” has not been met by the applicant, there is a good chance that moving the structure in conformance with the Shoreland Management Ordinance will result in eliminating the flood plain issue. Staff will work with the applicant to secure a location on the property where Schille can place the structure to avoid setback and flood plain issues.


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ATTACHMENTS:

1. Variance Application 2. Plat map indicating location of subject parcel3. Large scale exhibit indicating Lot 8 and approximate location of structure and mound SSTS4. Building Site Permit Application dated and received 05.20.045. Building Site Permit 04-88 dated 06.14.046. File notes by Robby Fischer, Environmental Technician7. 07.16.08 “Notice of Violation” requesting moving structure or applying for a variance8. 07.31.08 e-mail from DNR commenting on variance and flood plain issues9. FEMA Flood Insurance Rate Map indicating location of parcel10. 07.31.08 correspondence to Schille regarding flood plain issue11. 08.07.08 e-mail from Schille regarding permit violation12. Document # 339894 – recording of Plat of Shuey’s Spring Valley Estates13. Document # 345835 – Revised Covenants and Restrictions – Shuey’s Spring Valley Estates14. Sections 4.45 (c) and 5.2 of the Pine County Flood Plain Management Ordinance15. MCIT “Alert” on variance request16. Variance Findings of Fact Checklist


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FINDINGS OF FACT CHECKLISTVARIANCE

§’s 3.61-3.64 of the Pine County Shoreland Management Ordinance

1. Is the condition causing the hardship unique to that property? YES NO

2. Is the variance necessary in order to secure for the applicant a right or rights that are enjoyed by other owners in the same area or district? YES NO

3. Will the granting of the variance be in the public interest and not damaging to the rights of other persons or to property values in the neighborhood? YES NO

4. Will the granting of the variance be in conformance with the management policies of the area or district. YES NO

Minnesota Statutes Chapter 394.27, Subd. 7

1. Can the property in question be put to a reasonable use without a variance? YES NO

2. Is the plight of the landowner due to circumstances unique to the property andnot created by the landowner? YES NO

3. Will granting the variance alter the essential character of the locality? YES NO

Minnesota Supreme Court “practical difficulty” standards

1. Is the requested variation substantial? YES NO

2. Would the variance have a substantial impact on government services? YES NO

3. Would the variance effect a substantial change in the character of the neighborhoodor be a substantial detriment to neighboring properties? YES NO

4. Can the practical difficulty be alleviated by a feasible method other than a variance? YES NO

5. Was the practical difficulty created by the property owner? YES NO

6. On balance, will granting the variance serve the “interests of justice”? YES NO

Minnesota Supreme Court “equitable” standards

1. Did the applicant act in good faith? YES NO 2. Did the applicant attempt to comply with the law by obtaining a building permit? YES NO

3. Did the applicant obtain a permit from another entity that violated the law? YES NO

4. Did the applicant make a substantial investment in the property? YES NO

5. Was construction completed before the applicant was informed of the impropriety? YES NO

6. Is the nature of the property residential/recreational and not commercial? YES NO

7. Are there any other similar structures on the watercourse? YES NO

8. Are the benefits to the county far outweighed by the detriment the applicant would suffer if forced to move the structure? YES NO


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Schille Variance

Documents

Transcript of Schille Variance