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5.0 STAFF COMMENT 5.1 New commercial developments are required by the Code to have 8-foot privacy fences to screen adjacent residential properties. Because the Lexington Plaza Shoppes recently installed a new screening fence along the western property line, the Building Official was able to require that the new fence meets the 8-foot height requirement. 5.2 The Code does not, however, provide any regulatory tools to compel the Arthur's Jewelers property to install a similar fence if they're not seeking other approvals. The applicants are requesting the fence height variance in order to have a fence that adequately encloses the King's yard and is uniform in appearance. 5.3 Section 1013 of the Code states: "Where there are practical difficulties or uni�sarcrl hardships in the way of carrying out the strict letter of the provisions of this code, the Variance Board shall have the power, in a specific case and after notice and public hearings, to vary any such provision in harmony with the general purpose and intent thereof and may impose such additional conditions as it considers necessary so that the public health, safety, and general welfare may be secured and substantial justice dor�e. ' 5.4 State Statute 462.357, subd. 6(2) provides authority for the city to "hear requests for variances from the literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual properry under consideration, and to grant such variances only when it i.r demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. `Undue hardship' as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used undej- conditions allowed by the offcial controls, the plight of the landowner is due to circumstances unique to the properry not created by the landowner, and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the ordinance ... The board or governing body as the case may be mav impose conditions in the granting of variances to insure compliance and to protect. " 5.5 The propertv in question cannot be put to a reasonable use if used under conditions allowed by the official controls: As owners of private property, the applicants may expect a reasonable amount of security and privacy, which is frequently compromised by the concern of intrusion and vandalism from people that loiter in the adjacent parking lots. The Planning Division has determined that the property can be put to a reasonable use under the official controls if the VARIANCE request is approved. 5.6 The plight of the landowner is due to circumstances unique to the propertv not created by the landowner: The situation giving rise to the variance request is a function of this residential property being situated next to two commercial properties with no way of requiring both commercial property owners to provide adequate screening in a coordinated fashion. The Planning Division has determined that the plight of the landowner is due to unique circumstances not created by the landowner. PF07-049 RVBA 090507 Pagc 2 of 3 • •