The Forest Lake City Council on Dec. 9 granted a variance allowing a Third Lake couple to build a house with a deck encroaching within the 50-foot setback of the shoreline mandated in the city code.
The 3-2 vote came despite the Planning Commission’s unanimous recommendation to deny the request of Butch and Debra Pittman. City staff and City Attorney Dave Hebert also had recommended denial of the variance.
The approval came on the heels of the council in September granting a lake house variance that went against the Planning Commission’s recommendation. This one led Councilwoman Susan Young to call for removing the setback requirements altogether.
“If the council is going to approve this variance tonight, then I am going to ask to authorize our city attorney to re-write our variance ordinance so that there is no setback ordinance from the lake, because for us to approve every variance that comes through basically mocks our existing ordinances and laws,” she said.
After Mayor Chris Johnson, Mike Freer and Ben Winnick voted to grant the variance, Young made her motion, but it died for lack of a second.
The Pittmans plan to tear down their small, seasonal house at 21297 Iverson Ave. Built in 1949, it has structural issues, endured floods and would not provide the access they seek as they enter retirement over the next few years. It sits at an angle that prevents expansion, they said in a letter to the city.
The Pittmans plan to angle the new house to align with those of their neighbors. It will include an attached garage.
The house will sit 50 feet from the lake and by itself will meet setback requirements, but the variance was needed because a deck will encroach to within 41 feet of the shore. Neighbors on either side have decks 43 feet and 39 feet from the lake. These fall under an exception whereby residents, without obtaining a variance, can add a deck within the restricted area to an existing house if an evaluation reveals no reasonable location that meets or exceeds the setback. The intent of the exception, City Planner Aaron Buffington told the council, is to prevent residents with existing houses at or just beyond the 50 foot setback from having to build a new house just to have a deck.
However, that rule does not apply to houses yet to be built.
“In this case here, the applicant is proposing a new house and new deck, meaning they have the ability to place both of them outside of that 50-foot setback,” Buffington said.
State statute requires that cities apply a three-pronged standard regarding practical difficulties when considering variance applications. Each of three factors must be demonstrated to satisfy the standard and justify approval: reasonableness, uniqueness and essential character.
All involved agreed that the Pittmans’ request satisfied the essential character factor. Many houses and some decks on Iverson Avenue fall within the 50-foot setback, so their new house will not alter the character of the neighborhood. Significant discussion revolved around the merits of the other two factors.
Because the Pittman property is split by Iverson Avenue, Johnson felt the property’s lack of depth satisfied the uniqueness test. Hebert and Young countered that the Pittmans have enough room to build further from the lake and comply with the setback ordinance.
For the reasonability standard, Johnson said he understood the desire by the Pittmans to have their deck match the distance of those around it. Young proposed a hypothetical situation in which a resident seeks to build a deck 15 feet from the water because a neighbor built one 20 feet from the lake in the 1940s. Johnson said he would tend to agree with that request, as well.
“What we really have, then, is no standard,” Young said.
As they did in granting the variance in September, Freer and Winnick joined the mayor in support of the residents’ request.
“I think it meets all three (tests),” Winnick said. “I think we need to make every effort we can to help residents who are looking to build a new house, looking to stay in the community. … It’s their property, not ours.”
Freer found it hard to reject the request considering the Pittmans’ neighbors were allowed to add decks.
“I guess my issue with this is that if they wanted to construct a deck and they didn’t have a deck now, like their neighbors (did), they could’ve constructed the deck and it wouldn’t have been an issue.”
Councilwoman Molly Bonnett said she wants the council to review the ordinance. She opposed the variance request.
“I’m too much of a rule follower,” she said. “We’re going against our Planning Commission, we’re going against our attorney, we’re going against everything that’s been created here.”
Hebert said the council also went against years of work by former councils and other officials.
“They put a lot of thought into doing this and what should result from the codes that you’ve adopted, and they should be followed. … We already have all of those ordinances, they’ve been fought about and been adopted by the City Council,” he said. “That’s the rule that you probably should go by.”
Young also expressed concern that continued approval of such requests will lead others to seek to build closer and closer to the lake.
“The problem is going to be that nudging … is not going to end,” she said. “And it also creates a disdain and a reasonable expectation that we don’t have ordinances that mean squat.”