Lakewood Board of Adjustment Public Hearing
Wednesday, March 19, 2008, at 7:00 PM
Lakewood Town Hall
The purpose of the public hearing was to review the variance appeal by Loren Johnston for four lots totaling 10 acres on Massachusetts Avenue that do not have road frontage. The lots are lots of record.
Present: Chair Steve Geving, Jim Rich, Kerry Leider, Zoning Administrator Brennan Mears, Town Attorney Tim Strom, and Recorder David Gerhart. Members of the public were in the audience as well as Town Board members Jerry Larson and Tim Musick (see attached register).
Geving called the meeting to order at 7:00 PM. The Pledge of Allegiance was recited by all.
Motion by Leider, second by Geving, to approve the meeting minutes from January 15, 2008. Carried, with Rich abstaining.
Mears briefly reviewed the variance appeal to build on the 10-acre parcel (achieved by combining four 2.5-acre parcels) on Massachusetts Ave in the Dodge Plat. He said that Loren Johnston, the applicant, would be about 20 minutes late, and it was decided by consensus to wait for Mr. Johnston’s arrival before proceeding further.
Al Eastman asked whether the hearing would be conducted as specified on pages 114-115 of the Zoning Ordinance, and Geving replied in the affirmative.
Mr. Johnston arrived at about 7:35 PM and the meeting was resumed. Mears described the variance appeal for Dodge Plat (parcels #30, 31, 50, and 51) submitted on February 19, 2008. Mr. Johnston wishes to obtain a building permit for four 2.5-acre parcels on Massachusetts Avenue that is currently zoned FAM-2. He purchased the property in 1991 from Bob Roningen who had combined the parcels in 1981. Article VI, Section 1.01 J of the Zoning Ordinance describes the procedures for granting a variance for parcels without road frontage created before May 31, 1973.
Attorney Strom presented his view of the appeal. He said that Massachusetts Avenue became a platted road dedicated to the public in 1911. Massachusetts Avenue is 60 feet wide. According to Minnesota state statute 164.11, a road dedicated to the public by a plat that is greater than 30 feet wide is defined as a cartway. Because our ordinance (p. 16-17, Definitions) deals with cartways as private drives, Mr. Strom believes that Massachusetts Avenue is a private drive. In addition, for a building permit to be issued, frontage is required on an improved public road that has been maintained within the past decade, except as specified in Article VI, Section 1.01 J of the Zoning Ordinance.
Because the parcels in question were created before May 31, 1973, no hardship need be demonstrated if the provisions of Section 1.01 J are met, such as the required covenant and easement. There is, however, a requirement (page 50) that a private drive cannot serve more than two parcels with structures. Therefore, if more than two such parcels exist on the cartway/private drive, then the variance cannot be granted.
A second question, Strom said, is the acreage requirement of the FAM-2 zone, i.e., 17 acres. The parcel in question is 10 acres, so another question to be resolved is whether the 10-acre parcel is grandfathered in because it is a lot of record.
Leider asked when the FAM-2 zone was created and was told that it was created in 1989, but that, during the time the 1978 Ordinance was in effect, the largest parcel required to build was 4.8 acres.
Leider also asked whether combining lots of record results in a lot of record, and Strom indicated that it does. Also, the ordinance does not distinguish clearly between the terms “parcel” and “lot.” A lot is a parcel of land.
Rich pointed to Article IV, Section 3.05, (Construction on Nonconforming Lots of Record) as the portion of the Ordinance that applies to this variance appeal. This is the “grandfather” section. There was some discussion as to whether the Board should be primarily concerned with the previously mentioned Article VI, Section 1.01 J, or with Article IV, Section 3.05. Strom indicated that if the lot is nonconforming with respect to acreage, then Section 3.05 is appropriate to consider, but on the issue of road frontage, Section 1.01 J is appropriate. He pointed to Article IV, Section 1, General, for his reasoning.
Geving said that there is no obligation on the part of the applicant to co-join lots of record to meet the acreage requirement of the zone district. Strom said that in 1981, 10 acres was an adequate lot size and such a parcel would have been a conforming lot. Leider said that he thinks that the request complies with all parts of Section 3.05 over which the Town has jurisdiction.
There are two individuals currently accessing, via the Lakewood Road, parcels on Massachusetts Avenue with structures. These are owned by Michael LeBeau and Dick Pelinka. Variances had been granted to these individuals by the Town to build on their lots. Massachusetts Avenue has access to both the Lester River Road and the Lakewood Road.
Leider wondered what would happen if a 66-foot wide private drive was split in half lengthwise to become two 33-foot wide roads. Would that allow four houses to be built instead of two under the terms of the Ordinance? Can there be side by side driveways? Strom noted that according to Section 1.01 J the easement must be only 12 feet wide, so it would be possible to have multiple driveways on a 60-foot easement.
Mears made available a copy of a letter, dated July 5, 2006, from Attorney Ken Butler that referred to the “Moose Mountain Matter.” Among other things, Butler stated that, “Consequently, Massachusetts Avenue is a public road and can be used as such by the owners of the property abutting that road.” Pelinka said that, since Massachusetts Avenue is a public road, no variance should be required to build on lots with frontage on the road.
At this point it became apparent that Dick Pelinka had been, or is being, represented by Hanft-Friede, the law firm for which Tim Strom works. Strom said that he may, therefore, have a conflict of interest in representing the Town in this matter because it is possible that the Town and Mr. Pelinka might have opposing interests. Mr. Strom said that he will therefore restrict any future comments at the hearing to factual information, rather than legal opinion. He will determine whether such a conflict of interest exists and will not charge the Town for his services if he finds in the affirmative.
Leider raised the question of whether Massachusetts Avenue is an improved public road. Mears said that the requirement for frontage is on an improved public road and that Massachusetts Avenue has not been maintained by the Town for more than 25 years. Massachusetts Avenue is an established or platted road but not an improved public road. Leider stated that there is an issue of public vs. private ownership. A cartway does not restrict public access and landowners may use it to access their properties. He said he still wants a legal opinion as to how many driveways may be placed on a 60-foot wide easement.
More documents were introduced, namely:
1) Letter from John Bray of Clure, Eaton, and Butler Law Offices to the Town of Lakewood, dated June 23, 1998.
2) Letter from John Bray to Larry Peak, Town of Lakewood Supervisor, dated May 5, 1998.
3) Letter from Ken Butler of Clure, Eaton, and Butler Law Offices to Jennifer Crook, dated December 7, 1992.
The floor was opened to public comment:
Mr. Johnston, the applicant, wondered why, if Mr. LeBeau had been approved for a variance, why he should also not be approved. Geving pointed out that this would be the third structure on the drive, and that this presented special issues. Rich stated that, in light of the Butler opinion, he didn’t understand why this discussion should continue. Leider said that the ability of a property owner to use Massachusetts Avenue as a driveway and to access property is not the same as building a third structure on the road because it is not an improved public road. Strom said that there is a case, Bolen vs. Glass, before the Minnesota Supreme Court that may have bearing on these issues. The case has not yet been resolved.
One individual pointed out that there are already 6 structures on Massachusetts Avenue if one follows the road all the way from Lakewood to Lester River Roads. Jerry Larson responded that the Ordinance provides for Planned Residential Developments and that these provisions should apply in this case. Mears said the question is not so much how many houses can be on a driveway but how many driveways can be on Massachusetts Avenue.
Michael LeBeau suggested that the Board should be looking at the intent of the Ordinance, not at property rights.
Al Eastman, citing the LeBeau case and the documents in the LeBeau file, said that there are precedents for having buildable lots on Massachusetts Avenue and that such developments are not dangerous to the public health, safety, or welfare. In speaking in support or the Johnston variance appeal, he also said that the Board cannot make arbitrary or capricious decisions. Mears again pointed to Section 1.01 J5 which states that, “No private drive shall serve more than two (2) homes, parcels, or lots upon which a structure has been constructed.”
Leider said that he needs time to read the legal opinions that have been presented at the meeting and that he therefore favors recessing the hearing to a later date.
LeBeau provided some information on the current road. He said that he is currently maintaining Massachusetts Avenue by himself and that the drivable surface does not actually follow Massachusetts Avenue as platted due to a switchback. As the road stands, there is high risk of erosion and runoff of silt. He suggested that the road be returned to the original platted roadbed. There is currently no road association, and a relatively large investment would be required to improve the road. If the variance is granted, LeBeau wants a road association for road improvement and maintenance. He also suggested a survey and underground utilities. Johnston said he would be happy to help his neighbors improve the road. Dick Pelinka spoke in favor of the variance and was in favor of the road association idea, underground utilities, and rerouting the road. He said that the easement is clearly marked. Pelinka and LeBeau have a verbal agreement on using the switchback that crosses both of their properties. Rich said that utilities and a survey are civil matters and do not concern the Town.
Diane Larson spoke in opposition to the variance. She referred to issues on some of the documents that had been presented and said that the area was vulnerable to erosion because of the steep shale. She referred to the document of June 23, 1998, item #3, regarding grandfathered plats and parcels. This item notes that existing structures are grandfathered in. Larson maintained that because there are no structures on the Johnston property, the requirements of the current zoning ordinance must be met. Furthermore, she stated that the third dwelling is the trigger point for the Planned Residential Development provisions of the ordinance. She noted that, in 1992, a Mr. Winkler was denied a permit for a third structure on Massachusetts Avenue. She said she is also concerned that the decision on this variance appeal may be used as a precedent throughout the township.
Mr. Johnston asked how the recent variance granted on Radtke Road was different from the current one on Massachusetts Avenue. Mears replied that Radtke Road was a Town road that the Town had quit maintaining. The owners were grandfathered in on road frontage.
Mears suggested that the Board consider the 60-day rule and take the time to gather more information. Rich felt that the Board already had enough information to move forward and make a decision. Geving supported recessing the hearing.
Rich reiterated that he felt the appropriate section of the Ordinance was Article IV, Section 3.05, because the road is a public road that already has 6 structures.
Motion by Leider, second by Geving, to recess until Thursday, April 10, at 7:00 PM. Motion carried 2-1. Leider also requested that Mears provide other documents relating to variances that might apply to the current Massachusetts Avenue appeal.
Other business: Mears reported that there may be a variance appeal from a homeowner who wants to build a garage but is faced with a site problem due to wetlands.
Respectfully submitted,
David Gerhart