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Board of Adjustment approves Flynn variance

Fri, Jan 16th, 2009
Posted in Government

The Fillmore County Board of Adjustment approved two variances applied for by Steve and Denise Flynn, Carrolton Township, at their January 15 meeting. Last summer the board had denied variance applications from the couple to build a permanent dwelling on their thirteen acre property located two miles south of Lanesboro. Zoning Administrator Chris Graves opened the first meeting of the new year. Gary Ruskell was elected as chairman. Jim Keune was elected as vice-chairman.

During the intervening time since there first request for variances, the Flynns had appealed the decision and the judge directed the board to reconsider the variances with a changed criteria from "undue hardships" to a "practical difficulty." The two variances sought would allow relief from the zoning requirements that do not allow a residence to be built on land with a Crop Equivalency Rating (CER) greater than 65 if other sites are possible and the requirement that the home must be setback 150 feet from shoreland.

Zoning Administrator Chris Graves emphasized that no buildings are to be built in a flood plain according to the county's zoning ordinance in the Ag District.

Steve Flynn stated that the property was listed as a building site when they purchased it. In 2003, then Zoning Administrator Norman Craig had explained a series of steps they would need to take to build on the property which Flynn said has been done. Flynn said that he had received a letter from the Soil and Water Conservation District about a proposed buffer strip on the North side of the creek which would leave the area on that side of the creek too narrow to crop. No crops have been planted on that side since 2002. The couple have had a trailer on the property which has been lived in seasonally. They have drilled a well and put in a septic system large enough to service a three bedroom home.

Kenneth Moen, attorney for the Flynns, asked to put a map into the record. He explained that the county has taken the position to put the home on the South side of the creek which has been continually in crop production. Moen insisted that there is no legal access for the Flynns to the South side of the trout stream unless they built a bridge. He added that the state of Minnesota told the Flynns to put the well on the North side of the creek and the zoning administrator approved the septic to be placed there both in 2005. He added that five acres would have to be taken out of production if the home were built on the South side.

County Attorney Brett Corson, representing the county, maintained that the Flynns had created the need for a variance. Corson suggested that the property was a split from a bigger farm. He asked if the septic was approved for use with the trailer.

Flynn referred to a letter that they had received from Norman Craig in 2005 stating that there was no other building site in the quarter section, that construction would need to be 150 feet from the shoreland, and that construction is prohibited on land with a CER greater than 65 unless not cropped for 10 years.

Moen argued that it was irrelevant if the site was buildable when the property was purchased. He repeated that the South side is tilled, the North side has not been cropped for seven years and that they were here for a variance from the CER requirements with the variance criteria of "practical difficulties." The land on the North side isn't feasible to be tilled and there is a well and septic on the North side. The county is requesting a buffer on that side and they would "not be taking anything out of production." The neighborhood won't be changed and the home can't be built with a feasible alternative.

Graves repeated the requirement for a 150 foot setback from a shoreland. Flynn said that they are requesting a 50 foot setback because of the township road setback requirement of 73 feet. Moen noted that during the litigation, the county had argued that they could have a 150 foot setback by building on the South side of the property. Moen argued that with the "practical difficulty" criteria that it wasn't feasible because of the lack of access and location of well and septic. Corson noted that the farmers working the ground on the South side have access by mutual agreement and asked why can't that kind of agreement be made also for the Flynns with a home. He said that the hardship was created by the Flynns and that a variance is an "exceptional" form of relief. Corson argued that the neighborhood would be changed with a permanent home rather than a seasonal trailer. Mike Frauenkron noted that the septic system was allowed for use with the trailer.

Fred Kiel, a neighbor, insisted that the neighborhood would be improved with a nice home and that the Flynn property is an asset.

The board of adjustment approved the variance for relief from the CER requirement with a 4-1 vote. Steven Duxbury voted to deny.

Flynn said that he was willing to raise the area to as much as 3 foot over the 100 year flood plain depending on what engineers suggested. Kiel noted that in the fifteen years he has been in the area, he has never seen the land where the Flynns want to build flooded. John Overland added that it had not been flooded in the 60 plus years that he has lived there.

Duane Bakke, referring to testimony given last summer by the DNR, said that most of their testimony was against building on a flood plain. Bakke added that this variance isn't for relief from a flood plain requirement. No one representing the DNR was present. Moen said that the variance before the board had nothing to do with elevation issues. Corson said that the board has the ability to decide if elevation is relevant.

Chairman Ruskell asked that they go through the variance criteria for the shoreland variance point by point. There is a substantial variation from the ordinance, but the building of the home wouldn't substantially change the neighborhood. There is not another feasible alternative method because of the trout stream. The need for the variance was created by the landowner with the well and septic. The board decided to put conditions on a variance. Flynn signaled that he welcomed conditions.

Moen said that he along with Corson and Chris Graves could come up with language. Brad Erickson suggested that the Flynns come back asking for a variance from the road requirement.

Three conditions were listed for a variance from the shoreland requirement. The house would need to abut up to the township road set back requirement of 73 feet. The house of about 1000 to 1100 square foot would need to be built 3 foot above the 100 year flood plain. It would be built no closer than 120 feet from the ordinary high water mark. The board approved the variance with a 3-2 vote. Erickson and Kuhn voted to deny.

Planning Commission

The Planning Commission met for the first time in 2009. Brad Erickson was elected chairman and Gary Ruskell was elected vice-chairman. Chris Graves listed several proposed updates to the zoning ordinances.

Graves wants Conditional Use Permits (CUP) transfer between property owners when there are no changes to the CUP without the requirement of a public hearing. Duane Bakke suggested that they still be brought before the Planning Commission and the County Board.

Graves wants a more specific process in place to revoke a CUP when it is not being used for its intended purpose. He wants to clean up the language for the criteria for granting variances. Graves thinks that there should be a restriction from building a dwelling in a flood plain whether it is elevated or not.

Mr. Graves wants a standard for map replacement. The current map is 21 years old. Bakke said the flood plain as defined in a FEMA map can change every few years. He added their intent should be not to allow anyone to build in the flood plain.

Members of the board of adjustment discussed the process for allowing variances. Erickson added that they need to spend more time on reasons. He suggested that they make it regular procedure to discuss criteria point by point.

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