Agenda - Environmental Policy Board - 03/02/2015

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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. While the MN DNR no longer has certification authority over variances, they were provided with the details regarding this matter and have responded that they have no concerns or comments with the requested variances. 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. Staff recommends approval of both variances (Option #1). Funding Source: All costs associated with this request are the Applicant's responsibility. Action: