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Home My WebLink About2014-10-15 PACKET 08.B. REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITEM # Q � DATE 10/15/14 () • PREPARED BY: Community Development Jennifer Levitt ORIGINATING DEPARTMENT STAFF AUTHOR ************************************************ COUNCIL ACTION REQUEST Consider denying the variances to allow the driveway at 7230 Jonathan Avenue South to be on a side yard drainage and utility easement and to be one foot from the property line instead of the required six feet and to be 31 feet wide versus the required 28 feet. STAFF RECOMMENDATION: Adopt the resolution denying the driveway variances at 7230 Jonathan Avenue South. ADVISORY COMMISSION ACTION DATE � PLANNING 9/22/14 ❑ PUBLIC SAFETY ❑ PUBLIC WORKS ❑ PARKS AND RECREATION ❑ HUMAN SERVICES/RIGHTS ❑ ECONOMIC DEV. AUTHORITY ❑ REVIEWED ❑ ❑ ❑ ❑ ❑ ❑ ❑ APPROVED ❑ ❑ ❑ ❑ ❑ ❑ ❑ DENIED � ❑ ❑ ❑ ❑ ❑ ❑ SUPPORTING DOCUMENTS � MEMO/LETTER: Memo from John M. Burbank dated 10/8/14; Memo from City Attorney; Letter from Bob LaBrosse to Property Owner � RESOLUTION: Draft ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: � OTHER: Excerpt from unapproved minutes of 9/22/14 Planning Commission meeting /_1 �]►� i I I► I 6� �: L� r� 7: KY K� ]►� i I►� i I�� i �, � � Z%' � -�c.+ � u / City Administrator Date *****�****************************************** COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ OTHER Cottage � Grove � Pride andp�OSPerity Meet TO: Honorable Mayor and City Council Ryan Schroeder, City Administrator FROM: John M. Burbank, Senior Planner DATE: October 8, 2014 RE: Driveway Variance — 7230 Jonathan Avenue South Proposal Ivaylo and Iveta Nadarliyska applied for a variance to the minimum driveway setback and the maximum driveway width requirements to allow the driveway at 7230 Jonathan Avenue South to be on a side yard drainage and utility easement and to be one foot from the property line instead of the required six feet and to be 31 feet wide versus the required 28 feet. Location Map Background This summer the applicants contracted to have their driveway replaced and expanded. The work was completed by a contractor who was not licensed with the City. In addition to being unli- censed, the contractor did not obtain a building permit. Shortly after the new driveway work was completed, one of the City's building inspectors noted the new driveway and that it was not in City Council Memorandum Case V14-030 — Nadarliyska Driveway Variance October 15, 2014 Page 2 of 6 compliance with the side yard setback requirements established in the City ordinance. The driveway is currently one foot from the south side property line instead of the required six feet and is 31 feet wide versus the required 28 feet at the front property line. The City contacted the homeowner and the contractor to have the driveway brought into compli- ance. After several failed attempts to have the contractor follow through on the Building Official's directive to bring the driveway into compliance, the applicants chose to file for the variance ap- plications. The Building Official is asking that the driveway be saw cut to the setback lines to remove the excess hard surFace area. Planning Commission The Planning Commission reviewed the application at their regular meeting on September 22, 2014. A public hearing was held and testimony was given in favor of and against the application request. After a lengthy discussion the Planning Commission recommended denial of the appli- cation on a 9-to-0 vote. Legal Commentary Based on the discussions at the Planning Commission meeting, the City Attorney was asked to review the planning staff report and the record from the Planning Commission Meeting. A letter based on that review is attached to this report. Building Official Commentary The question of the contractor's license status was raised at the Planning Commission meeting. A response letter from the City Building Official is attached. Expanded Driveway Photo City Council Memorandum Case V14-030 – Nadarliyska Driveway Variance October 15, 2014 Page 3 of 6 Property Characteristics The property has a two-story residential dwelling and attached double car garage with a 1,356 square foot footprint and is located in a single family residential neighborhood. Neighborhood Detail The garage was constructed 14.44 feet from the south side property line. An as-built certificate of survey is shown below. �� t� -U � Y �.� r �w C' � 0 1 ri �� N. ry �� CJ � � C7 �� r � C7 I -� �' �� s�.3� ' 135.00 �N89 B"� � N 2g I!. � ��,–; " — �'�, I � � � �� ` Q � v � �� V r" � r �` 1� � ,�`_ � 5.8� _.+ ��L_ �_ �" ``� + N � � � 135 00 N89°17�02"E � I (924,1� C� �� e.ao �I I -�,. I � I 930.1 : ,,,�1G Im f� � � II � � �� N l , � �� ' Z i n I � �D I� �C � C �� As-Built Certificate of Survey City Council Memorandum Case V14-030 — Nadarliyska Driveway Variance October 15, 2014 Page 4 of 6 Planning Considerations Ordinance Criteria With any variance request, the Planning Commission must look to the zoning ordinance for guidance and direction. City Code Title 11-2-7: Variances, states that: A. Authority And Purpose: The council may grant variances from the strict application of the pro- visions of this title and impose conditions and safeguards in the variances so granted in cases where there are practical difficulties or particular hardships in the way of carrying out the strict letter of the regulations of this title. D. Consideration By Planning Commission; Recommendation: Before authorization of any vari- ances, the request therefor shall be referred to the planning commission, and for its recom- mendation to the city council for the granting of such variance from the strict application of the provisions of this title so as to relieve such practical difficulties to the degree considered rea- sonable without impairing the intent and purpose of this title and the comprehensive plan. The planning commission shall recommend such conditions related to the variance, regarding the location, character and other features of the proposed building, structure or use, as it may deem advisable. The planning commission shall make its recommendation within sixty (60) days after the request is referred to it, unless the applicant requests, in writing, that an exten- sion of time for review be granted by the planning commission. The planning commission may recommend a variance from the strict application of the provi- sion of this title, if they find that: 1. The variance is in harmony with the purposes and intent of this title. 2. The variance is consistent with the comprehensive plan. 3. The proposal puts the property to a reasonab/e use. 4. There are unique circumstances to the property not created by the landowner. 5. That the conditions upon which an application for a variance is based are unigue to the parcel of land for which the variance is sought and are not applicable, generally, to other property within the same zoning classification. 6. That the purpose of the variance is not based exclusively upon a financial hardship. 7. That the granting of the variance will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel of land is located. 8. That the proposed variance will not impair an adequate supply of light and air to adja- cent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety. The applicants have submitted a letter to the Planning Commission and the City Council, which is attached as Exhibit A. In the letter, the applicants propose two options. One is to obtain the variance as requested. The second would be to obtain a variance on the side yard setbacks, but reduce the driveway width to the required 28 feet. The third option being required by the City's Building Official is the reduction of the driveway to meet current ordinance criteria. City Council Memorandum Case V14-030 — Nadarliyska Driveway Variance October 15, 2014 Page 5 of 6 i?; � s,.nr/,�N /i�fS� 55o1r' - --- _ ....T � i i I NO [/S f I I � � i -, . ,_� -_ -__. _"___�� i �'. C•ARAGF__ I , � i �, r � J; � I , , � _ � ; .; .i _ ,>' i _ I i .; I . — r- ' 9 A % - , - --�--I -- —'-_ .Tof��:;•finN �VF_ S _. __. _. PRO(�ErTY G�Nf r } S �2ao �a�..r�n.�i �Es� ssai6 - M07�/F/CATIO/�/ � � r- ---------- ---- � ; � i � E <�d ��E Zi _ � _ . J �' ` I �' w' . oi C-ARRGF , R, �.. � i � ;' R i i_ '%' ; . �. ��.. �� . � - ---- T ' � -' —' . I � ,70NATh/iN fI VE S —� II _,_.—.�. -PlOPERTY LiNE . . - fo BE RENO✓ED Request Option A Request Option B The City's Technical Review Committee reviewed the requests for the variances. The Committee was sympathetic to the applicants' plight with the contractor, but identified that they could not establish any findings of fact that would make the requests unique from any similarly situated property. The Committee noted further that the contractor expanded the driveway in accordance with the direction of the homeowner, but without a permit. Public Hearing Notice The public hearing notice was mailed to 88 property owners within 500 feet of the property and published in the South Washington County Bulletin on September 10, 2014. Summary • The ordinance is specific about the setbacks and widths for driveways. • The City's website and City Hall information boards and front counter have numerous sources where people can access setback and other zoning information. • Side yard setbacks create minimum areas on a property where utilities, green space, open space, snow storage, and stormwater management occur. • There is a five-foot drainage and utility easement along the side property line. Recommendation Based on the lack of establishment of the findings for granting the requested variances, the Planning Commission has recommended that the City Council deny the variances to allow the City Council Memorandum Case V14-030 — Nadarliyska Driveway Variance October 15, 2014 Page 6 of 6 driveway at 7230 Jonathan Avenue South to be on a side yard drainage and utility easement and to be one foot from the property line instead of the required six feet and to be 31 feet wide versus the required 28 feet. Prepared by John M. Burbank, AICP Senior Planner Exhibit A= Letter from the Property Owner Exhibit B= Letter from the City Attorney Exhibit C= Letter from City Building Official To : The City Council of the City of Cottage Grove MN From: Ivefia and Ivaylo Nadarliyski owners of the property on 72301onathan Ave S, Cottage Grove MN with Legal Discription: PINE FOREST 3 aD ADD Lot 5 Block 3 and PIN: 10.027.21.11.0079 Dear members of the city council of Cottage Grove MN, We kindly ask you to consider our application for variance on the extended driveway since we have been misled, deceived and mistreated by the contractor who did the job-Blacktop Pro's represented by Joe Relf . When we first contacted Joe Relf (Blacktop Pro's ) we asked if the driveway could be extended according to the measurements it has right now (31' width with setback 1' from the property line) and questioned if this would be in compliance with Che codes of Cottage Grove , if Joe Relf had a license and if he will be the pulling a permit for the job . He assured us that he is licensed and will be taking care of the permit and that he knows the regulations and the above discussed measurements of the driveway would be just fine. That's why we proceeded with the project and eventually paid the contractor. Even though the job was done as scheduled on 5/29-5/30/2014 it had many imperfections that we additionally completed ourselves, after trying many times to contact Joe Relf (Blacktop Pro's) to come back and fix those. Our attempts have been ignored and he even stated he does not understand our English, ones we had paid him already. We asked him for the permit on 5/29/14 when he showed up with his crew to start the job and he said that he has the permit, but has forgotten to get it from his secretary and will be bring it the next day along with an invoice which we also requested to have . The following day, the workers showed up again and started rushing to finish. At the end they asked my wife to pay and she again requested to see the permit and an invoice to which the response was again that they were super busy and had forgotten those peppers in the office and will drop them nff later, when they come back to fix the moved mail boxed and other things they left unfinished and never came back to fix . My wife felt intimidated and paid the negotiated amount of $3000.00-three thousand dollars, after Joe Relf agreed at least to hand write some type of receipt confirming that he's received the payment from us . Few days after the drive way was extended we received a letter from the city of Cottage Grove, informing us that the driveway is not in compliance with the city codes , it turned out that the contractor had not pulled any permit and was not licensed for the city of Cottage Grove and that's how our ordeals started. We had discussed the driveway extension with our adjacent neighbors (Colene and Bob -7228 Jonathan Ave S; Arty and Jane-7232 Jonathan Ave S; Kim and Bruce Bialka-7231 Jonathan Ave S) and they have stated that have no objections agairtst it . In our communication with the city inspector — Robert LaBrosse we were willing to meet with the contractor-Blacktop Pro's-1oe Reif and to work out some solution, but he did not show up again at the scheduled mandatory meeting on Aug.26 2014 . In consideration of fihe above circumstances, showing that we had no intention to violate any of the city codes and have been totally mislead and mistreated by the Contractor-1oe Relf we are requesting the city to consider and grant us the following variance on the driveway : 1)If possible the driveway to be left as is —schematic 1-EXISTING 2)If option one is unacceptable , we are requesting to be granted the width of the driveway to be 28', after cutting a piece around the fire hydrant with width of 3' and length 16' and forming a curve — schematic 2-MODIFICATION. Respectfully, {veta and Ivaylo Nadarliyski Kathy Dennis From: Sent: To: Subject: Attachments: Mr�. Burbank and members of the planning committee with the city of Cottage Grove , We would like to object to the opinion expressed by the City's Technical Review Committee , stating : "The Committee noted further that the contractor expanded the driveway in accordance with the direction of the homeowner, but without a permit". Attached is the contractor's proposal for the driveway addition . Through the whole process we have been following the contractor, not giving him any directions . That's why he is an independent contractor-we can not tell him what to do, we asked if the job could be done that way and he assured us that it can . He was the one that told us that the present dimensions of the driveway would be just fine, he was the one that lied about being licensed and fully aware of the city codes. He also lied to us that it's his job to talce the permit and that he's going to secure the permit . Currently we have filed a complained with Better Business Bureau (please see attached) and from the contractor's response is pretty obvious that he continues to lie , including saying that we have not paid him (attached is a hand written receipt showing that we paid him $3000-three thousand dollars). Isn't it odd that the contractor did not talce any actions against us if we had not paid him ? That is exactly because he is lying again We have been a victim of a shameless liar "contractor" who clearly showed his disrespect not only to us (even discriminating us by saying that does not get our English ones we paid him ), but also to the city officials, by ignoring us and the inspector Bob LaBross and not showing up for the meeting on Aug 26th, 2014 . As we subsequently found out by talking (getting estimate) of a licensed contractor, the driveway extension does not only non compliant with the city codes but also with the quality standards of the asphalt job as it was completed withing two days . The licensed contractor explained that the job for which we paid $3000-three thousand dollars will hardly last after the winter . Our request is unique because we did not intend to violate the city codes in any possible way, but we became victims of a contractor that lied and mislead us and the one that has to be punished is the contractor-Joe Relf (Blacktop pro's) , not us . Iveta & Ivaylo Nadarliyski From: kdennis@cottage-grove.org To: tikvenick@hotmail.com CC: jburbank@cottage-grove.org COMPLAINT ACTIVITY REPORT Case # 57286530 Consumer info: Nadarliyska, Iveta S 7230 Jonathan Ave S Cottage Grove, MN 55016 612 708-6243 612 708-6243 tikvenick@hotmail.com Better Business Bureau of Minnesota and North Dakota Business info: Blacktop Pros LLC 651 260-7345 Location Invotved: (Same as above) Consumer's qriginat Complaint : The Blacktop Pro's LLC, represented by Jae Relf did a driveway e�ension on our property on 5l30/2014 .. According to Joe l2elf, who has been communicating with us , the Blacktop Pro's LLC, was a bonded and licensed company for the city of Cottage Grove and was fully aware of the codes and regulations of that city .1Nhen questioned few times (both verbal[y and by e maiq if the driveway addition we are considering (1' from the property line and total width of the driveway after the �ddition to be 31', Joe Relf responded that this measurements are perFectly fine . We aiso questioned if Biacktop Pro's as contractor is going to secure a permit and they again assured us not to worry and that they wili iake care of the permif . Finally after exchanging e mails and phone calis we negotiated a price of $3000-three thousand doliars if we pay in cash at the time the driveway addition is finished , On May 30th,Joe Reif and his crew finished the driveway, but feft multiple imperFections and promised to come back and finish those lafter .When questioned where is the permit and may I have an invoice #or the work they said that have left those at the o�ce and will mail it-I could hardiy get Joe Reif to hand write a receipt that he's received $3000.0(�'}iayment from us after Joe derpanded immediate payment and I(Iveta Nadarliyska) gave them �3000.00 doilars . Few days latter we received a letter from the city that the driveway is in violation of the city codes and it turned out that Blacktop Pro's is not licensed for the city of Coftage Grove . We tried to confact them , but they responded that can not understand what we are saying (we have accenf)and completely ignored us . One of the city inspectors Bob LaBrosse tried to arrange a meeting with us and the contractor, but they ignored 4hat and no one showed up . Now the city is forcing us to bring fhe driveway in compliance with the codes and we have been mislead and mistreated by Balcktop Pros and would like to get refunded $3950-estimated to redo the driveway Product_Or Service: Aiidition of Asphait briveway � Consumer's Desired Resolution: DesiredSettlementlD: RefundWe are requiring to be reimbursed the $3950-three thousand nine hundred and fifty doilars (estimate} needed to cut and reda the currently non compliant driv�way, instailed by Blacktop Pros . Besides that , we are requiring to be reimbursed for the estimated costs of fandscaping -$650 six hundred and fiffy dollars, that will be needed ones part of the current driveway is cuk (6' from the prope�ty line according #o #he city codes} . The total reimbursement! we ��e r�quiring is $4500.00 BB8 Processing 09/10/2014 web BBB Complaint Received by BBB U9/10/2014 ACA BBB Complaint Reviewed by BBB staff 09/9012014 Otto EMAII. Send acknowledgement to Consumer 49I10/2014 Otto MAII Inform Business of the Complaint 09117l2014 WEB BBB RECEIVE BUSINESS RESPONSE : We first met Iveta Nadariiyska and her husband a few monts ago. We had been communicating with them for the last couple weeks before doing the job and since Iveta and her husband could noF agree on what they wanted done to their driveway we had to send out our estimatar to their house 6 different times before the project got done. They finaUy agreed on what they wanted. Both Iveta and her husband were told numerous times by myseif and my estimator Jeff and my office manager Andrea that they wera responsible for going to the city an� getting their own permit. We do this for every job because if we had to actually get a permit for 5 different driveways we do daily and in 5 different towns that would be a job in itself! iveta and her husband told us before we started the job that they would go to the city and get a permit. Typically we collect 50% down before any job but they assured us #hey wouid pay upon completion so t agreed to that. Upon compietion iveta and her husband said that they "forgot" to run to the bank and get a cashiers check and they would drop it by our office the next morning. Iveta and her husband were amazed at the great job we provided and were happy that we went above and beyond what we said we were going to do and both shook my hand. The next morning we get a call from them saying that they decided they wanted to make the driveway 1" shorter in width and they would not pay us until that was done. I told Iveta and her husband that I stand by my word and even though they were the ones who spray pain#ed fhe line where they wanted the driveway to extend to and were present the whofe time we did the job I still toid them that I needed fo get paid so I wikl come out there and change whatever they wanted. They said they wouid noi pay for the whole driveway or any of it unless we came out to do more. t kindly explained to Iveta how our cost of materiai and payroll for our crew was already at $2,000 and fhat t could not send someone out to do more unless they cover at least our materfai for the whole driveway that was just done. Iveta threatened to ruin my reputatian and give me bad reviews and report me to the BBB which is what she did. After reading what she wrote all i can say is If she can prove fhat she paid us (which she won't be able to do since we never got paid) we will gladiy oome out and change whatever they want. At Blacktop Pros we strive at giving excellent customer service and it's sad that we went above and beyond for Iveta and her husband and they would decide to not pay (at least just our materiai and payroll for our crew) and then threaten to ruin our reputation. At this point all i can say is prove to us that you paid us like you are saying in your review. � 09I17/2014 ACA EMAIL Forward Business response to Consumer � . ,=_. � �. � ; � Iva Nadarliyska REALi'OR 8TR6E7 ... 7�.��1 ��,,�z��4�P� ��fi�� _ �� Prem�er . ��T�� _ . __ =,..>,--„- :: Office: 651-983-2712 � _t�K�.t� ` Email: biacktopprosmn@yahoo.com 659 6isienberg br, Suite 700 564. Esther Lane Woodbury, MN 55125 wj �ir:$ Z7a&�2a�R' Woodbury, MN 55125 orr�oe: ssi-zss-a�aa ��X:65i 379-5263 . �.� � E-MaiL• tlkvemck@hotmail com � PH pA'rE -- - - �``rt�� ',r G._ �r r � � •-- / 1--� '�r��l �' n --� � Yj �+-..�..--------- -- — — — —, .-_._._. _ �.�..! i�---�-- I.--1 .�.� ` � � ' ��'�✓'Ly- Yi �' i ��i�'Jl . � f "� �1 � �� v.t.� �# � � -I Gr 7'ti � �l ia t �(t r �r� � � J - /1 �i�'`'�1� S(J+Y�� -�,�` SG'!'�i?C�'''�..��...� ~ 7G: ' �Ce �- . / tl .� � � - t' �? � /��ia � �/ � � /�� 'r� 1^� t�CrC ��rf� " 1: 5 c' lIC�G� �r-�'� rG/ �� C.�,�, � /� �ac��.. � �� a ��"� s�1 �� fSl � � .—.., e � _ ,� vv 1 � � l hr. A-tS We Propose hereby to furnish materi�l and labor - compiefe in accordance with above specilications, for the sum of: $ Payment due upon completion of job or receipt of siafement. A charge of y 1/2 �o per manth will be made on all past due batances. This charge appiles to all accaunts 30 days past due. ' CANTRAGTQRS PRE LIEN NO710E TO OWNER ' "{A) ANY P�RSON +�fl COMPANY SUPPLYlNQ LABOA dA MATEAIALS EOR THI5IMPROVE- Authorized / �/'� MEN7 TO YOUR PROPERTY MAY FILE A L.IEN ACiAINST YOUR PAOPEHTY !F 7NAT PERSON OF � COMPANY IS MRT PAID FQR THE CONTRIBUTIONS. Signature (8) UHDER t�AINNESOTA IJSYY, YOU HAV� TNE RIC3HT TO PAY PERSONS WHO $UPAL►ED LABpR qR MA7ERIALS FOR'PHIS IMPROV�IVIENT OlRECTLYAN� DEQUCTTHISAMOUNIf Note: This ro osai ma be withdfawn ky us if not acce ted FROM OUR CONTRACT PRIGE, OR WfftiHOLO TFtE AMOUN75 DUE THEM FROM US UNTIL P p Y P 120 OAYS AFTER CAMPLETION OF THE IldPROVEMENT UNLE53 WE OIVE YOU A LIEN WAlV- �� R 31aN�D BY PERSONS WHD SUPPLIEDANY LA80A OR MATERIAL FOFi 7HE (MPAOVE- ' wiihin ��'_�_ days. MENTAND WHO GAVE YOU TIMEI.Y N�TICE.' Acceptance of Proposai - The above prices, specifica�ons and cvnditions are satisfactory and are hereby accapfed. You are authorized to do the work as specified. Payment wlll be made as outtined above. Date of Acceptance Signature Dafe � 5Z�'��Z ,, � t `---- i I � ls��✓ � �' ' , � � , � � � I , � � , 4 �� _ � �"' �� , __ � �✓ � _._ __ . __ _ _ _ __ _ __ ___ _. __ i � _ ; -- — _ ---- — —.�-� ---- _ : _ _ . � � , G�� C(,� • ,�` �t�C/�--C� _ _ _ . _ �-�-- --- — - _ ._ _ -- -- _ _ - l _ - _ - ;� '�c��-- % �� . . _ , t _ _ __ � � •�� 't� � � �, �� 1! �.�.�� . _ . �� _ � ' � � � . _ � ti �,�� - �� r ��'� ��' __ _ _ _ _ _ ��_. __ _ i l � 4 ... _ �� ' � - . . . . . .. . . . _ .. .. .. .. . .. . � U � ,.. .. ..._. >., ...._. ...... .._._.. ._.. .._.. ._. _._.____ — _._ . _..___ .._. . _. � � . � /y, /� _� __. I i i t bs �� . _ .° _ _ f _ � _ �. I _ _ t __ . __ _. _ j j _ _ _ _ i I i ...... ...__.. .._.. ___.... }._____ ....,;.____. . ._ ._„ .... . ._ .... .. _ ....... . . _..._ �� _ _ __ _ ____. ._ _. . . . .. "?.„, . .__ . . __ ._- _ __ _-_ .___ _._.. ..__.. _ _._.._ t ...._ _.... .__. ...__. ...__._ .___ _.-..__ _____ . � .__- _____. ______. ____-_ ....__ .___ __.. _. . . 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BEESON *RENNETHJ.ROHLF �STEPHEN H.FOCHLER 4JAY P. ICARI.OVICH ANGELA M. LUTZ AMANN *KORINE L. LAND ❑*DONALD L. HOEPT DARCY M. ERICKSON DAVID S. KENDALL BRIDGET McCAULEY NASON DAVID B. GATES HAROLD LEVANDER 1910 ARTIILIR GILLEN 1919 • ROGER C. MILLER 1924-2009 �ALSO AD\IITCED 1N \VISCONSIN �'ALSO ADnI17TED IN NORTH DAI:OTA �ALSO AD\tITTGD IN �IASSACHUSETTS �ALSO ADMIiTED M OIiLAHOMA TO: The Honorable Mayor Bailey and Members of the Cottage Grove City Council FROM: Kori Land, City Attorney DATE: October 15, 2014 RE: Nadarliyska Driveway Variance Case V20114-30 I have been aslced to provide a legal analysis z•egarding the application for a variance that would allow the Nadarliyslcas to lceep their newly constructed driveway at 7230 Jonathan Ave. S. in its cui7ent location. The variance requests are requesting a 5-foot setbacic variance fi•om the south side yard and a 3-foot variance from the width requirement at the street. What the Council must lceep in mind when considering a variance application are the standards set forth in Minn. Stat. §462.357 Subd. 6. These standards provide the frameworlc to help you malce your decision. Subd. 6 states in relevant part: Variances shall only be perinitted when they are in harmony with the general purposes and intent of the ordinance and when the variances are consistent with the comprehensive plan. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute practical difficulties. The relevant questions from this statute for you to consider are as follows: 1. Is the variance in harmony with the general puipose and intent of the ordinance? 1 2. Are the circumstances causing the request for the variance unique to the property and not created by the landowner? 3. Will the variance, if granted, alter the essential character of the locality? If the Council answers "Yes" to questions 1 and 2 and "No" to question 3, then the variance application may be approved. However, if the answers are not as stated above, then the Council must deny the variance. I offer the following analysis of the relevant questions: 1. Is the variance in harmony with the general purpose and intent of the ordinance? There are two variance requests in this application and they should be analyzed separately. Side Yar�d Setback Var�zance. The intent of the setback requirement is to preserve the minimum areas where utilities, green space, open space, snow storage and stormwater management occurs, as pointed out in the Planner's report. There are several reasons this variance request does not meet the purpose and intent of the ordinance. a. The newly constructed driveway was built over• the City's drainage and utility easement, thereby encroaching upon it without permission by the City. This is in direct opposition to preserving the minimum utility area. The City must preserve its easement areas and to allow a structure to be constructed over it prevents the City from direct access. b. The new location of the driveway provides inadequate green space and open space between the edge of the new driveway and the neighbor's property, again, in direct opposition with the intent of the ordinance requirement. Dr�iveti��ay Wic�th. The intent of the driveway width requirement is to control orderly development. All driveways are allowed a maximum of 28 feet at the entrance to the right of way. This creates uniformity within the neighborhood and also controls the size of the access onto the right of way. The new driveway was constructed with a width of 31 feet. This is in direct violation of the or•dinance without any compelling reason for the extra dimension. The new edge of the approach for the driveway at the entrance to the street may also be too close to the existing fire hydrant, but this would have to be reviewed by the Fire Chief. 2. Are the circumstances causing the request for the variance unique to the property and not created by the landowner? The requirement that the circumstances be unique to the p�°ope�°.ry is an impoi point. The circumstances cannot be unique to the property o1�me�°, but must be caused by a distinction or 1 If the side yard variance is approved, the owners must be requu•ed to enter into an encroachment agreement with the City giving permission for the driveway structure to exist on the City's easement that can be removed by the City should the need arise. � exceptional situation that relates specifically to the property. In the variance application, the circumstances surrounding the request are due to the mistalces made by the contractor, but ultimately, were the homeowners' responsibility. Every propei�ty owner is charged with knowing the City's performance standards and permit requirements. There is nothing unique to the p�°opert�� that requires a variance for the side yard setback or the variance for the width. The new driveway could have easily been constructed in compliance with both the side yard setback and the width pr•ovisions of the Zoning Ordinance. The mistalces made by the contractor are unique to the pro�ert,y owner, but not to the rp opertX. 3. Will the variance, if granted, alter the essential character of the locality? The variances, if granted will have tht•ee detrimental impacts to the essential character of the neighborhood. a. Side Yar�d Setback. It wi11 allow a side yard driveway to be within one foot of the neighbor's property in a neighborhood where it is not conducive, due to the configuration of the lots, the size of the houses and the locations of the driveways on the lots, which are typically as close to the neighboring properties as possible, while staying within the allowed setback. This variance will permit one property owner to do what other similarly situated property owners cannot do. In addition, it will not be consistent with the other lots in the area. b. Drivewczy Width. It will alter the size of the driveway at the right of way, which changes the uniformity of the neighborhood and again will allow one property owner to ha�e a wider driveway than anyone else. c. Both. It will create a precedent that any property owner may be granted a variance to forgive a mistake, whether the mistake was made by the property owner or a contractor. The Council must apply the strict requirements of the statute when considering a variance. It is rny recommendation that the Council should deny both variance requests and require the property owners to bring the dz•iveway into compliance by a certain date. 2 While bringing the property back into compliance may cost the property owners an additional expense, as stated in the statute cited above, "Economic considerations alone do not constitute practical difficulties." Cottage �rove � Pride and p�OSperity Meet October 3, 201.4 lveta and Ivaylo Nadarliyskf 7230 Jonathan Avenue South Cottage Grove, MN 55016 Re: Contractor Licensing Dear Mr. and Mrs: Nadarliysl<i; Recently I was informed that you have requested the City of Cottage Grove Contractor License Number for Blacktop Pros LLC and a reason for the issuance of the license. On June 4, 2014, a ietter was sent to Mr. Joe Relf indicating that Blacktop Pros installed a driveway extension at your residence, non-compliant with city standards, and was required to apply for a City Contractor license andsecure the building permit. On July 8,2d14, Mr. Relf complefied a building permit applicatian for the driveway extension, however, the permit was not to be issued until all parties met on site to discuss the praject, On July 8, 2014, Mr: Relf secured a City of Cottage Grove Cantractor l.icense for Asphalt instaliation and was issued Contractor License Number 2Q14-001.43. This information was provided tQ you in the letter dated September 4, 2014. On August 26, 2014, you, the contractor, and I were to meet at your home to discuss the non-compliant driveway and compliance`options, hov✓ever, Mr. Relf nor a Blaci<top Pros representative were present at this site meet)ng. Therefore, you as homeowner were required to either comply with the city driveway standards by removing the nan- complaint driveway or request a variance. On September 22, 2014, yaur variance request was denied by the Planning Commission and is scheduied to be reviewed by the City Council on �ctober 15, 2014. You have inquired as to why tlie City issued a license to a contractor that has Violated the City's driveway rules and standards. My appraval ofthe application was to have Blac!<tap Pros LLC secure a eontractor's license, enabling them Co secure permits for future asphalt work within the City and to have a record of the company's contact information. I also felt that once theyare licensed and should they violate any conditions of the licensing moving forward, I would have the ability to revol<e the license and move forward with legal prosecution. Should you have any questions or concerns, please contact me at 651-458-28�8. Sincerely, ( - Bob LaBrosse Building Official Cc Jennifer l.evitt, Community Development Director Bldg�eob`Permifs Reg�lD13Q�3i'6tf#Hi�f�N'�'acd�18U7d�air��?-��vay • Cottage Grove, Minnesota 55016 www,cottage-grove,org • 651-458-2800 • Fax 651-458-2897 • Equal Opportunity Employer I��Yi7�lj�C�71 ► • � . , , , A RESOLUTION DENYING VARIANCES TO MINIMUM DRIVEWAY SETBACK AND MAXIMUM DRIVEWAY WIDTH REQUIREMENTS AT 7230 JONATHAN AVENUE SOUTH WHEREAS, Ivaylo and Iveta Nadarliyska applied for a variance to minimum driveway set- back and maximum driveway width requirements to allow their driveway to be one foot from the property line instead of the required six feet and 31 feet wide versus the required 28 feet, on property legally described as: Lot 5, Block 2, Pine Forest 3rd Addition, Cottage Grove, Washington County, State of Minnesota. Commonly known as 7230 Jonathan Avenue South, Cottage Grove, Washington County, State of Minnesota. WHEREAS, public hearing notices were mailed to property owners within 500 feet of the property and a public hearing notice was published in the South Washington County Bulletin; and WHEREAS, a planning staff report, which detailed specific information on the property and the variance application request, was prepared and presented to the Planning Commission; and WHEREAS, the Planning Commission held a public hearing on September 22, 2014; and WHEREAS, the public hearing was open for public testimony and testimony from the applicant and the public was received and entered into the public record; and WHEREAS, the Planning Commission reviewed the variance criteria and findings of facts established by the Zoning Ordinance for granting a variance; and WHEREAS, the Planning Commission unanimously (9-to-0 vote) recommended to the City Council that the variance be denied. NOW, THEREFORE BE IT RESOLVED, the City Council of the City of Cottage Grove, Washington County, Minnesota, hereby denies the variance to minimum driveway setback and maximum driveway width requirements for the property legally described above. Denial of the variance is based upon the following findings of fact: A. The requested variance is not caused by a distinction or exceptional situation that relates specifically to the property. B. The ordinance is specific about the setbacks and widths for driveways. C. The City's website and City Hall information boards and front counter have numer- ous sources where people can access setback and other zoning information. Resolution No. 2014-XXX Page 2 of 2 D. Side yard setbacks create minimum areas on a property where utilities, green space, open space, snow storage, and stormwater management occur. E. There is a five-foot drainage and utility easement along the side property line. F. The inability to obtain affirmative responses to all of the Ordinance criteria estab- lished in Title 11-2-7 when considering the variance request necessitates that the Council must deny the variance request. Specifically: 1) The variance is not in harmony with the purpose and intent of the ordinances; 2) The circumstances are not unique to the property; 3) The circumstances are created by the property owner; 4) The purpose of the variance is based on financial hardship; 5) Granting the variance will be detrimental or injurious to other land, improve- ments or properties in the neighborhood. Passed this 15th day of October, 2014. Myron Bailey, Mayor Attest: Caron M. Stransky, City Clerk .. .� ....� � ` . . . � , . � : � • 6.4 Nadarliyska Driveway Addition — Case V2014-030 Ivaylo and Iveta Nadarliyska have applied for a variance to minimum driveway setback and maximum driveway width requirements to allow the driveway at 7230 Jonathan Avenue South to be one foot from the property line instead of the required six feet and 31 feet wide versus the required 28 feet. Burbank summarized the staff report and recommended denial based on the findings of fact stipulated in the staff report. Ivaylo Nadarliyska, 7230 Jonathan Avenue South, disagreed with the recommendation in the staff report that there are no unique circumstances for this request. He explained that the contractor provided three options for the driveway, told them he was licensed in the City of Cottage Grove, and he would pull the permit. After he was informed about the issues with the driveway, the City inspector set up a meeting at his property to resolve the issues with the contractor, the homeowner, and the inspector, but the contractor did not show up at that meet- ing. He does not believe he is responsible for the driveway problems because the City of Cottage Grove granted the contractor a license. In addition to his problem, there was a prob- lem on another property in the city with the same contractor. He does not understand why the contractor was granted a contractor's license. The driveway is already done and he asked to be allowed to keep it. He believes that a bigger driveway is better for safety on the street. Graff noted that the contractor is not licensed by the City. The purpose of the building permit system is so the City can ensure the contractor is licensed. It is unfortunate that the contractor did not follow the city's codes. Johnson stated that as a contractor working in many cities, if a licensed contractor pulled a permit and something like this happened, the city require the contractor to fix the problems. However, when an unlicensed contractor is hired or does not pull a permit, the homeowner must accept the consequences for what happened. You have the option of going after that contractor through the attorney general, Better Business Bureau, or the legal system. The Planning Commission can make a decision the requested variance but cannot go after the contractor. Nadarliyska stated that there is no right for a contractor license to be issued. He has corre- spondence from the inspector that the contractor is now licensed in Cottage Grove. He asked for the license number, which he needed for his complaint with the Better Business Bureau, but the inspector did not disclose it. Imdieke asked if he is referring to the inspector or the contractor. Nadarliyska responded the contractor was granted a license from the city, and it was granted after the issue with his driveway. He stated that when he hired the contractor, the contractor said he would secure the building permit, He found out late that the contractor did not have a license at that time and did not get the permit. Excerpt from Unapproved Planning Commission Minutes Nadarliyska Driveway Addition — Case V2014-030 September 22, 2014 Page 2 of 2 Johnson asked if the contractor is or is not licensed. Burbank replied that Building Division staff reported that he was an unlicensed contractor. He may have been issued one since this report was written. Levitt stated that staff will further review the claim about the contractor applying for a license. Past perFormance does come into play for the issuance of those licenses and they do have to be renewed. If for some reason an error was made, staff will work to correct that situation. Rostad opened the public hearing. Dave Leighly, 7300 Jonathan Avenue South, stated that variances are to be granted for unu- sual situations and this site is not particularly unusual. He believes permitting a variance for this condition will establish precedence for future countless situations. No one else spoke. Rostad closed the public hearing. Graff commented that the Commission sympathizes with the applicants for being taken in by this contractor. However, that does not preclude what the Commission has to decide. She then stated that in the applicant's email, it was noted that he was informed that the driveway was faulty and would need to be replaced, whether this variance is approved or denied. Brittain made a motion to deny the variances for driveway setback and maximum width based on the findings of fact stipulated in the staff report. Reese seconded. Motion passed unanimously (9-to-0 vote).