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Memorializing City Council action taken on December 17, 2014 granting the appeal of Steven L. Virkus of a decision of the Board of Zoning Appeals denying a parking variance for a mixed commercial/residential property at 814 Grand Avenue.
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WHEREAS, on or about July 28, 2014, Steven and Jenny Virkus ("Applicants"), in DSI Zoning File No. 14-315255, duly applied to the Board of Zoning Appeals ("BZA") for two variances from the strict application of Leg. Code §§ 63.207(a) (pertaining to parking requirements) and 66.331(k) (pertaining to setback requirements). Applicant's sought the said variances for the purpose of legalizing the conversion of what had been a 3-stall garage on property commonly known as 814 Grand Avenue and legally described as Summit Park Addition Tost Pa Lot 4 Blk 15 (PIN No. 022823420159) into a residential use; and
WHEREAS, the conversion of the garage structure into a residential use resulted in the subject property containing two residential structures on the same lot. The structure fronting on Grand Avenue is used for mixed commercial/residential purposes. The second structure, duly built as a two-story garage pursuant to a building permit, is located at the rear of the subject property. As originally built, the second structure consisted of a three-stall garage on the first floor and unimproved storage space on the second floor. This structure's second story, along with one garage stall on the first floor, was subsequently converted into residential living space. It appears the conversion was made prior to the Applicants acquisition of the property in 2011. It further appears likely that the conversion was undertaken without a building permit as no record of any application or issuance of permits relative to the conversion exist in City records; and
WHEREAS, the subject property was zoned B2 at the assumed time the garage was converted into a residential structure. Converting the garage to a residential structure made both dwellings on the subject property illegal as B2 zoning prohibits two residential structures on the same lot. When the City notified the Applicants of this illegality, they duly applied for and received the City's approval to rezone the subject property from B2 to T2. See, Council File Ord. 13-63, January 14, 2014, a copy of which is attached hereto as Exhibit 1. Rezoning the subject property to T2 brought the subject property's two residential structures into compliance with the zoning code; and
WHEREAS, notwithstanding the subject property's rezoning to T2, the property failed to meet Leg. Code § 63.207's requirement of 1.5 off-street parking spaces for each residential dwelling unit. Under Leg. Code § 63.207(a) the minimum number of parking spaces per residential dwelling unit is 1.5. Converting the garage into a residential structure removed one parking stall thereby reducing the parking spaces available on the subject property from three to two which necessitated a 1-car variance; and
WHEREAS, although the garage was duly constructed to meet the setback requirements for accessory structures, converting it into a residential structure resulted in the following encroachments into the 6-foot side-yard setback for residential structures required under Leg. Code § 66.331(k): 2-feet into the west side-yard and 3-feet into the east side-yard necessitating variances of two and three-feet respectively; and
WHEREAS, the matter was duly set on for public hearing before the BZA on August 18, 2014 but at the request of the Applicants, the public hearing was further continued to September 3, 2014; and
WHEREAS, on September 3, 2014 the BZA conducted a public hearing on the said variance application where all persons interested were afforded an opportunity to be heard and, following a presentation by the Applicant's attorney and discussion of the issues raised by the BZA, the BZA duly moved to continue the matter to September 15, 2014 for the purpose of allowing Applicant's the opportunity to explore parking options in the neighborhood; and
WHEREAS, on September 15, 2014, the matter, at the request of the Applicants, was further continued to September 29, 2014; and
WHEREAS, on September 29, 2014, the matter, at the request of the Applicants, was further continued to October 13, 2014; and
WHEREAS, on October 13, 2014, with the Applicants again in attendance, the matter was taken up by the BZA with the Applicants, through their counsel, informing the BZA of their attempts to secure additional off-street parking for the subject property and, following additional testimony, the public hearing was closed and the BZA began to deliberate the said variance applications; and
WHEREAS, the BZA based upon all the evidence presented at the public hearing as well as the report of staff, as substantially reflected in the minutes, duly moved to grant the side-yard setbacks but deny the parking variance based upon the following findings of fact as set forth in BZA Resolution No. 14-315255 as follows:
"1. The variance is in harmony with the general purposes and intent of the zoning code.
This property is located in the T2, traditional neighborhood zoning district. This district permits a varied mix of residential and commercial uses. Grand Avenue is a major commercial corridor and there are mixed residential and commercial uses both east and west of the parcel. The intent of the T2 district is to encourage a variety of uses and housing types, with careful attention to the amount and placement of parking and transitions to adjacent residential neighborhoods.
This structure was a three-car garage and there are still two parking spaces remaining after the conversion to a dwelling unit. A dwelling unit with windows facing a side yard in this zoning district requires a 6 foot setback from the side property lines. The requested variances in order to legalize the conversion of the garage into a dwelling unit are in keeping with the above intent of the T2 district. This finding is met for both variance requests.
2. The variance is consistent with the comprehensive plan.
The Housing Density of the Summit Hill/District 16 Neighborhood Plan which is an addendum to the Comprehensive Plan is as follows: "Ensure that the impact of any increased density conforms to zoning and building requirements, and that the City considers the development's adverse impact on existing municipal services including, but not limited to, traffic and parking." The garage is located closer to the alley and has windows on the east elevation only which faces no residential dwelling. The increased density created by adding a dwelling unit on this parcel is in keeping with housing chapter of the Comprehensive Plan. However, the removal of required parking is not in keeping with a goal of the Comprehensive Plan to lessen congestion in the public streets. This finding is met for the setback variance request but not met for the parking variance request.
3. The applicant has established that there are practical difficulties in complying with the provision that the property owner proposes to use the property in a reasonable manner not permitted by the provision. Economic considerations alone do not constitute practical difficulties.
The existing setback from the west property line is 4 feet and existing setback from the east property line is 3 feet. In order to meet the 6 foot side yard setback requirement, the applicant would have to either cut off the building on both sides or simply remove the windows. None of these options is practical or reasonable because a residential building requires windows. Since the removed parking space was turned into a dwelling unit, there is no other alternative for additional parking. Similarly, it would be impractical to get rid of windows of a dwelling unit in order to meet the setback requirement. These are practical difficulties in meeting the setback and parking requirements. This finding is met for both variance requests.
4. The plight of the landowner is due to circumstances unique to the property not created by the landowner.
It is a buyer's responsibility to do their due diligence prior to the purchase of any property. In this case, the purchaser apparently failed to investigate the approved use of the property and the plight was self-created by the applicants. However, the garage, which is located to the back closer to the alley, is not overlooking any residential building on the east side. This circumstance is unique to the property and it was not created by the applicants. This finding is met for the setback variance request but not for the parking variance request.
5. The variance will not permit any use that is not allowed in the zoning district where the affected land is located.
This request will not alter the zoning classification of the property. This finding is met for both variance requests.
6. The variance will not alter the essential character of the surrounding area.
Allowing a building converted into a dwelling unit prior to 2011 to remain will not alter the character of the area. This finding is met for both variance requests."
WHEREAS, pursuant to the provisions of Leg. Code § 61.702(a), Steve L. and Jenny Virkus, on October 23, 2014, duly filed with the City Clerk an appeal (File No.14-341455) from the determination made by the BZA, requesting a hearing to be held before the City Council for the purpose of considering the actions taken by the said Board; and
WHEREAS, acting pursuant to Leg. Code § 61.702(b), an upon notice to affected parties a public hearing was duly conducted by the City Council on December 17, 2014, where all interested parties were given an opportunity to be heard; and
WHEREAS, the City Council, having heard the statements made, and having considered the variance application, the report of staff, the record, minutes and resolution of the BZA, does hereby
RESOLVE, that the Council of the City of Saint Paul reverses the decision of the BZA in this matter, based upon the following findings of the City Council:
The Council finds error in BZA Resolution No. 14-315255's Findings No. 2 and 4. With respect to Finding No.2, the Council's 2013 decision to rezone the property to T2 recognized that the subject property was already functioning as a mixed use with two residential dwelling units. T2 zoning permits two residential structures on the same lot. Rezoning the property to T2 therefore brought the property's two residential structures, notwithstanding their location on the property, into compliance with the zoning code. The BZA recognized this in its Finding No. 1. The intent to rezone the subject property to T2, given the location of the property's structures, was also intended to bring all aspects of the property's structures into compliance with the comprehensive plan as well. The loss of one parking space, on balance, does not overtly increase parking congestion given the property's proximity to mass transit service along Grand.
The Council further finds that the BZA erred with respect to Finding No.4. In reaching this determination, the Council presumes, based upon the reasoning stated by the BZA under Findings No's 1, 3, 5, 6 and the now amended Finding No. 2, that the BZA must have intended to find that the Applicant's side-yard variance request had in fact met the standard under Finding No. 4 and that it was simply a drafting error in BZA Resolution No. 14-315255 that the Applicant's side-yard variance Applications had not been met. With respect to the parking variance, the Council concludes that the garage conversion was undertaken by a previous owner and the resulting shortage of 1 parking space constitutes a circumstance unique to this property and not created by the Applicants. Therefore, the parking variance standard is met.
The Council would note that parking in the alley behind the second structure is already not legally permitted and that there are adequate legal remedies already in place to address any situation caused by illegal alley parking.
Finally, the Council adopts as its own BZA Findings No.'s 1, 3, 5 and 6 as there are now errors in these findings supporting the said variance requests; and
BE IT FURTHER RESOLVED, for all the reasons stated above, that the appeal of Steve L. and Jenny Virkus be and is hereby granted; and
BE IT FINALLY RESOLVED, that the City Clerk shall immediately mail a copy of this resolution to Steve L. and Jenny Virkus, the Zoning Administrator, the BZA, and the Planning Commission.