1A, Planning Case 09-003, Zoning Code Amendment

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Arden mills, Minnesota 55112 February 2, 2010 Page 3 a. Inclusion of"Two or More" Creates Ambiguity. For reasons that are unclear, the current proposal to amend the Adjacent Lots Setback Rule would provide that it applies if"two or more existing adjacent dwellings have shoreline setbacks that exceed the minimum setback from the ordinary g Y ten high water level b (10) or more feet." Under the relevant dictionary definition, "adjacent" means " having a common endpoint or border<adjacent lots><adjacent sides of a triangle>" www.merriam- webster.com/dictionary/ad acent(last visited February 1, 2010). On a linear plane, such lots along a shoreline, a lot can have only two other lots that have lake frontage and share common boundaries. Therefore, applying the accepted dictionary definition of adjacent, there cannot be more than two adjacent dwellings. But if the common dictionary meaning is not going to be used, which will happen if the "or more" language is adopted, it will create a question of what is the meaning of"adjacent." If "adjacent dwellings" is not properties with common borders, then what is the limit? Adopting such language will simply create many more questions than it answers.. For example, would a dwelling three lots away from an applicant's lot be considered an adjacent dwelling for purpose of Rule? Further, if more than 2 dwellings are used, how is the average measured? If it the City intends to continue use of the string line test, how is that accomplished with more than two dwellings? Where can be perhaps no better demonstration of the problems adding"or more" creates then the recent variance request for 1563 Edgewater Avenue. In their application, the new owners of Lot 14 requested the average shoreland setback be determined by using a string line from what was described as Lot 13 and Lot 161 conveniently leaving Lot 15 out of the string line average. Lot 16 is an anomaly from what is an otherwise consistent neighborhood setback of approximately 100 feet. Using a string line average from Lot 16 to Lot 13 would result in an substantially different"average" setback than a string line average between Lot 15 and Lot 131, or the median average of all dwelling setbacks in the neighborhood. In fact, allowing what most would consider the non-adjacent Lot 16 to be used to calculate the average setback of Lot 14 could, depending on the method, provide Lot 14 with a substantially different setback standard than nearly any other property along Lake Johanna; arguably creating a spot zoning effect. Given the uncertainties "or more" creates, a court would have little difficulty declaring the language to be ambiguous. As a matter of law, any ambiguity in the Zoning Code would be construed against the City. See Amcon Corp. v. City of Eagan, 348 N.W.2d 66 (Minn., 1984). Amending a clear section of the Adjacent Lot Setback Rule in a manner that creates ambiguity is neither necessary nor in the public interest. i In discussingthe proposed changes the Adjacent Lots Setback Rule the February 3 2010 p p g J � Y Memorandum to the Planning Commission states, "Staff is proposing an amendment to the regulations that addresses construction on lots with two adjacent developed lots." (Emphasis added). Further, the Stantons were unable to locate any Planning Commission Meeting Minutes that contain a discussion that there should, or could, be more than two adjacent homes for purposes of determining the shoreland setback average.