Shoreland variance that was a "cluster" from Day One

1. DEPARTMENT OF PUBLIC WORKS
Zoning Division
1610 Hwy 23 North • Sandstone, MN • 55072
(320) 216-4220 • (800) 450-7463 x 4220 • Fax (320) 216-4202
08-090
JOHN & KATHY SCHILLE
Variance
SITE INFORMATION
APPLICANTS: John & Kathy Schille
LEGAL DESCRIPTION: Lot 8, Block 1, Shuey’s Spring Valley Estates
LOCATION: End of Riverside Lane – river side of the road
TOWNSHIP: Pine City
PARCEL #’s: 26.5512.000
SIZE: ≈ 1.5 acres
EXISTING LAND USE: Residential Recreational
ZONING: RR Residential Recreational
COMPREHENSIVE PLAN: Not applicable
REQUESTED ACTION: Variance from the requirement of § 5.21.A of the Pine County Shoreland
Management Ordinance of a 150-foot setback from the Ordinary High
Water Level (OHWL) of the Snake River. The applicant desires to
continue to keep the existing structure ≈ 100 feet from the OHWL.
APPLICABLE §’s 3.6 (Variances) and 5.21.A (Placement, Design, and Height of
REGULATIONS: Structures – Placement of Structures on Lots) of the Pine County
Shoreland Management Ordinance
SURROUNDING LAND USE AND ZONING
Comprehensive Zoning within ½
Location Adjacent Land Use Adjacent Zoning
Plan Mile
Pine County Pine City Township;
Residential
North RR Residential No map RR Residential
Recreational
Recreational Recreational
Pine County Pine City Township;
Residential
South RR Residential No map RR Residential
Recreational
Recreational Recreational
Pine County
RR Residential
East Vacant Wooded RR Residential No map
Recreational
Recreational
Pine County Pine City Township;
Residential
West RR Residential No map RR Residential
Recreational
Recreational Recreational
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 1 of 12

2. AGENCY REPORT In a July 31, 2008 e-mail from DNR Area Hydrologist Lonnie Thomas, he states
DEPARTMENT OF his first concern is that the structure appears to be in the flood plain. Thomas is
NATURAL not as concerned about the setback, stating “the issue of hardship rests with the
RESOURCES [Board of Adjustment]. A copy of the Thomas e-mail is included with this
report as an attachment. Thomas’ concerns were communicated to the
applicant in a letter dated July 31, 2008. At that time, the applicant was
directed to provide the requested elevation information. His response – in
an August 7, 2008 e-mail – will be discussed later in this report.
BACKGROUND: The applicants, John & Kathy Schille, are requesting a variance from the
requirement of § 5.21.A of the Pine County Shoreland Management Ordinance of
a setback distance of 150 feet from the OHWL of a Forested and Transition River.
The Snake River is classified as a Forested River by the Minnesota Department
of Natural Resources and the Pine County Shoreland Management Ordinance.
The Schille’s are requesting the variance to be authorized to continue the
placement of their structure at a distance of approximately 100 feet from the
OHWL of the Snake River.
Topographic map of the area. The subject property is near the southeastern
corner of Section 34.
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 2 of 12

3. Aerial photography of the area. The subject parcel is in the southeastern
corner of Section 34.
The record indicates that in early May 2004, the applicant cleared an area on the
subject parcel for the structure, dug holes for the footing, constructed framing for
the floor of the structure, and had the framing completed and set.
After starting construction, the Schille’s applied for a Building Site Permit. A copy
of the permit application – date stamped May 20, 2004 – is included with this
report as an attachment. Note the application requested a 12 x 16 x 9
storage building. Also note that Schille indicated the setback from the back
property line for the structure was 200 feet. Environmental Technician Robby
Fischer, during a pre-permit site visit, noted that construction had started and that
the location of the structure was too close to the river. Fischer placed a stake
where the 150-foot mark was on the property and advised the Schille’s to relocate
the structure behind the 150-foot stake.
On June 14, 2004, a Building Site Permit was issued by Pine County Land and
Zoning (File # 04-88) authorizing “construct[ion of] a 12 foot x 16 foot x 9 foot high
storage building, per staked area…” A copy of the Building Site Permit is
included with this report as an attachment.
On October 27, 2004, Fischer performed a post-permit inspection of the
construction, and noted that the structure (a) was not moved; (b) had a deck
attached to it; and (c) appeared to be converted to living space – as depicted by
the following picture:
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 3 of 12

4. Front view of “storage building”
Fischer’s file notes indicate that on the day of the follow-up inspection he advised
Schille to stop work and move the structure back before continuing construction.
Fischer also told Schille that if he intended to use this “shed” as living space the
County would require a sewer system. A copy of Fischer’s file notes is
included with this report as an attachment. The structure was not moved back,
and Schille did not amend the permit application to account for the deck.
On July 13, 2007, Schille submitted an application for a mound septic system.
Schille indicated to staff that he intends on building a cabin on the property in the
future and the septic system will be servicing that structure. Schille placed a privy
on top of the septic tank:
Privy on top of septic tank of constructed mound SSTS. Background
structure is the neighbor’s – Everette Wright
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 4 of 12

5. The location of the privy is not proximate to the “storage building”. Staff noted the
presence of a primitive facility closer to this structure:
The toilet seat cover and bucket is behind the structure and shrouded by
what appears to be a shower curtain.
This issue remained dormant until earlier this year, when staff reviewed the file
and re-inspected to see if compliance was achieved. After determining that
compliance was not achieved, a “Notice of Violation” was issued to the Schille’s
requiring them to either relocate the structure of apply for a variance. The
Schille’s applied for the variance. A copy of the Application for Variance is
included with this report as an attachment.
Per the provisions of § 3.91 (Notifications to the Department of Natural
Resources), the variance request was forwarded to DNR Area Hydrologist Lonnie
Thomas for review and comment. See “Agency Report” section of this report
for DNR comments. A copy of the DNR comments is included with this
report as an attachment. At this point in the review process, the issue of flood
plain was first identified. Staff downloaded a copy of the FEMA FIRM map for this
area, which revealed the likelihood that the structure was placed within the flood
plain area. The FEMA FIRM map for the area is below:
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 5 of 12

6. The Schille parcel is near the 860 elevation in the lower right hand corner of
the map.
Staff requested Schille to provide documentation that the location of the structure
was not in the flood plain. As of the date of this report, no such
documentation has been forwarded.
Robby Fischer was asked about whether the flood plain issue was discussed at
the time of permit issuance. Robby responded that the previous zoning
administrator, Robert Pulford, was aware of the concern and took the matter
under advisement. However, no determination was made by Pulford on whether
the structure was, or was not, in the flood plain.
Robby Fischer will be present at the public hearing to respond to any
questions the Board may have on this matter.
SCHILLE RESPONSE John Schille related to me that he did not move the structure because of the
following reasons:
1. A neighbor told him it looked better closer to the river.
2. The developer (Shuey) advised him that the lot was grandfathered in and
did not need to be 150 feet away from the Snake River.
While the first comment has no bearing on the matter, the second comment was
investigated. § 6.12 (Non-Conformities – Construction on Non-conforming Lots of
Record) addresses lots of record within the Snake River Watershed District, as
follows:
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 6 of 12

7. “Lots of record within the Snake River Shoreland District, which were
platted or created between October 1, 1973 and January 1, 1993, may be
allowed as building sites without a variance provided (1) the lot width at the
ordinary high water level and at the setback line is a minimum of one-
hundred (100) feet; (2) structures must be setback a minimum of seventy-
five (75) feet from the ordinary high water level; and (3) sewage treatment
systems shall be setback a minimum of one hundred (100) feet from the
ordinary high water level.”
Shuey’s Spring Valley Estates was recorded as Document # 339894 on March 3,
1994. A copy of the recording instrument is included with this report as an
attachment. Consequently, the provisions of § 6.12 do not apply to Shuey’s
Spring Valley Estates.
It should also be noted that on December 30, 2004, a revised “Covenants and
Restrictions For The Plat of Spring Valley Estates and Shuey’s Spring Valley
Estates” was recorded as Document # 345835. A copy of this document is
included with this report as an attachment. Among the restrictions recorded
are two that are pertinent to this case, as follows:
“…subject the properties to the covenants, restrictions, easements,
charges, and liens set forth in this declaration each and everyone of which
pertains to said properties and is for the benefit of each future owner
thereof.
1) All applicable state and local codes and ordinances.
…
4) No residential building shall be less than 700 square feet of living
area.”
John Schille, in an August 7, 2008 e-mail, wanted to relate his version of the
events. Below is a true copy of the e-mail (hard copy included as an attachment):
Mr. Dale Powers.
Dale,
I have some concerns about the requirement to move the structure located on
my property, BLOCK 8 Shuey Estates, and would like to have some written
correspondence about this. That way we have some type of record to refer back
to.
I would simply like to state the facts, from my perspective, as to history of this.
We the purchased property April 15, 2004. In early May I cleared area on the
desired location for structure, dug holes for the footing, constructed frame for
floor, had the frame completed and set in proposed area. I filed a permit
application for 12' X 16' building, giving location and description of area of
property where structure would be built.
I waited approx 4 weeks for permit, did not do anything to frame, left it completely
alone waiting for the permit. Finally called inquiring about status of the permit,
and approx 4 days later received the permit, Number 04-88 Dated 6/14/2004. It
stated:
WORK AUTHORIZED: construction for a 12 X 16 X 9 building per staked
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 7 of 12

8. area and application received 5/20/04. NO COMMERCIAL USE ALLOWED
PERMIT signed by Robert Pulford,(?) Land and Zoning Supervisor, and by
Robert Fozded (?) Zoning Technician. Sorry, I can't read these signature
very clearly.
I started construction in June 2004 after receiving authorization/permission to
proceed with the construction. The structure was pretty much completed by end
of August.
In October 2004, Mr. Robert Fozded came to property asking if I had a permit for
this construction and who had given it to me. I showed him the permit and told
him that he gave it to me. I was told ONLY THEN that I was too close to river and
needed to stop all construction and move the building. All construction was pretty
much finished, as four months had passed since I'd received the permit.
My concern, what changed from June to October regarding the permit approval?
Permit was issued in June granting permission to proceed with project on that
specific site.
In October a verbal notification was all I received from Robert about the need to
move the structure. No written notice was ever issued. I did not move the
structure, had no issues with Pine County on this matter for almost four years.
July 2008
I received a violation in the mail for the septic system installed last August, 2007.
I contacted the Pine County Zoning Commissioner, Mr. Dale Powers, and told
him I followed all the instructions and details given me by his inspector and had
not proceeded with anything until I was given approval. The inspector finally gave
me the ok to cover up everything and finish the septic, which I did. After
explaining this to Dale, we received compliance notification for the septic system
dated July 9, 2008.
One week later, I received another violation regarding the 12 X 16 structure
stating it was too close to the river. The structure was never moved. Once I
received the permit from Pine County Zoning Commission in 2004, I assumed
that getting the permit meant that it was in compliance and authorization to build
the 12X16 structure was granted. In JUNE of 2004, with the floor frame just sitting
in the ground waiting for that authorization, why was I not informed at that time
that I may be in violation by being too close to the river. It would have then been
easy enough to move back to new distance, dig new holes, get a couple of
friends and lift the frame to the new location and then finishing the structure.
Again, in October 2004, with structure complete, I was given verbal instruction, by
the same inspector who first issued the permit four months prior, that I now
needed to stop construction and move the structure. Now that it is complete I
have to move it??? Why was the permit ever issued in the first place in June
2004 if I was in violation? If a request is granted, how can it be reversed verbally
four months later and in writing four years later?
July 2008, I received a violation in the mail for the septic system, which I was in
compliance with. Shortly thereafter, I received violation notification regarding
location of the structure. Variance was applied for to keep structure at current
site, and now days later I am informed that the structure is the Snake River flood
plain.
What's going on here?
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 8 of 12

9. ANALYSIS §’s 3.61-3.64 of the Pine County Shoreland Management Ordinance outline
criteria on which a variance can be granted. That criteria, along with staff’s
opinion on each item, is as follows:
1. The condition causing the hardship is unique to that property. FALSE. Mr.
Schille, by his own admission, stated in his August 7, 2008 e-mail that “[I] n
early May I cleared area on the desired location for structure”. If the area
where the structure is located was a natural clearing, an argument could be
made that a hardship would have existed if Schille was forced to clear
woods for a building site.
2. The variance is proved necessary in order to secure for the applicant a right or
rights that are enjoyed by other owners in the same area or district. FALSE. In
fact, the opposite is true, in that Schille is requesting a variance to secure a
right not enjoyed by other owners in the same area.
3. The granting of the variance will not be contrary to the public interest or
damaging to the rights of other persons or to property values in the neighborhood.
FALSE. Granting the variance will be contrary to the public interest in that it
demonstrates to the public that building activity can take place prior to the
application for a permit, and can continue despite ignoring directives by
County staff to relocate the structure to conform with the Shoreland
Management Ordinance requirements. The rights of other persons in
Shuey’s Spring Valley Estates are damaged by the applicant’s violation of
the recorded covenants and restrictions for building activity in the
subdivision.
4. The granting of the variance will not be contrary to management policies of the
area or district. FALSE. The rationale behind the 150-foot setback
requirement is to provide protection for the visual esthetics of the Snake
River. The rationale behind elevation of the structure so that the lowest
floor is above the RFPE of the Snake River is to ensure that flood waters do
not inundate the structure and potentially send it down the Snake River and
eventually the St. Croix River, which is designated a National Wild and
Scenic River.
In addition, Minnesota Statutes Chapter 394.27, Subd. 7 outlines certain
requirements for the establishment of a “hardship”. These requirements, followed
by staff analysis, is as follows:
1. The property in question cannot be put to a reasonable use if used under
the conditions allowed by the official controls. FALSE. Placing the structure
50 feet farther back from the OHWL does not impede on the
reasonableness of the use.
2. The plight of the landowner is due to circumstances unique to the property
not created by the landowner. FALSE. There are no unique circumstances
to the property. The landowner created this plight by starting
construction of the structure prior to applying for a Building Site
Permit.
3. The variance, if granted, will not alter the essential character of the locality.
FALSE. The essential character of the locality is that of structures
following the 150-foot setback. As well, the developer recorded
covenants that expressly stated that all properties are to follow “all
applicable state and local codes and ordinances.”
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 9 of 12

10. RECOMMENDATION: It is clear that John and Kathy Schille started land clearing and construction of
the storage building before applying for a Building Site Permit to authorize it. If
the Schille’s would have applied for the permit before starting construction,
County staff would have reviewed the required staking of the area intended for
placement of the structure and advised the Schille’s that the proposed location
was not in conformance with the 150-foot setback from the OHWL of the Snake
River.
As it relate to the setback variance request, the record to date does not support
a finding of “hardship” or “practical difficulties” that would warrant the granting of
the variance.
There are also issues relating to flood plain that need to be addressed – with or
without the granting of a variance. If the Board of Adjustment finds that the
applicant has meet the burden of “hardship” or “practical difficulty” and grants
the variance request, it should condition the approval on the applicant securing
a “spot elevation” at the location of the structure to determine whether the
structure is below the RFPE of the Snake River and, if it is below that level, to
comply with the requirements of §’s 4 and 5 of the Pine County Flood Plain
Management Ordinance.
Central to this condition is a determination on whether the structure is an
“accessory” structure or a “primary” structure. If the Board of Adjustment
determines the structure is an “accessory” structure. § 5.22 of the Flood Plain
Ordinance states that accessory structures that constitute a minimal investment
and do not exceed 500 square feet of footprint may be internally floodproofed as
directed by § 4.45 (c) of the same Ordinance. A copy of §’s 5.22 and 4.45
(c) of the Flood Plain Ordinance are included with this report as an
attachment. While there is no running water or bathroom facilities in the
structure, the presence of a deck on the structure suggests the structure is
intended for more than storage. Additionally, the presence of a primitive
bathroom facility suggests a more intensive use than mere storage. When
questioned on that issue, Schille indicated that his permit says “building”, not
“storage building”. This statement is contradicted by the plain language of
the permit that states “storage building”. Schille’s statement suggests that
he does not see this structure as an “accessory” structure but a temporary
“principal” structure until such time that he builds a cabin farther up from this
structure. In any event, the floodproofing requirements for “accessory”
structures are less stringent than “principal” structures, which are referenced in
§ 5.2 of the same Ordinance. A copy of § 5.2 of the Pine County Flood Plain
Management Ordinance is included with this report as an attachment.
If the Board of Adjustment concurs with staff that the burden of proof on
“hardship” and “practical difficulty” has not been met by the applicant, there is a
good chance that moving the structure in conformance with the Shoreland
Management Ordinance will result in eliminating the flood plain issue. Staff will
work with the applicant to secure a location on the property where Schille can
place the structure to avoid setback and flood plain issues.
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 10 of 12

11. ATTACHMENTS:
1. Variance Application
2. Plat map indicating location of subject parcel
3. Large scale exhibit indicating Lot 8 and approximate location of structure and mound SSTS
4. Building Site Permit Application dated and received 05.20.04
5. Building Site Permit 04-88 dated 06.14.04
6. File notes by Robby Fischer, Environmental Technician
7. 07.16.08 “Notice of Violation” requesting moving structure or applying for a variance
8. 07.31.08 e-mail from DNR commenting on variance and flood plain issues
9. FEMA Flood Insurance Rate Map indicating location of parcel
10. 07.31.08 correspondence to Schille regarding flood plain issue
11. 08.07.08 e-mail from Schille regarding permit violation
12. Document # 339894 – recording of Plat of Shuey’s Spring Valley Estates
13. Document # 345835 – Revised Covenants and Restrictions – Shuey’s Spring Valley Estates
14. Sections 4.45 (c) and 5.2 of the Pine County Flood Plain Management Ordinance
15. MCIT “Alert” on variance request
16. Variance Findings of Fact Checklist
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 11 of 12

12. FINDINGS OF FACT CHECKLIST
VARIANCE
§’s 3.61-3.64 of the Pine County Shoreland Management Ordinance
1. Is the condition causing the hardship unique to that property? YES NO
2. Is the variance necessary in order to secure for the applicant
a right or rights that are enjoyed by other owners in the same area or district? YES NO
3. Will the granting of the variance be in the public interest and not damaging
to the rights of other persons or to property values in the neighborhood? YES NO
4. Will the granting of the variance be in conformance with the management policies
of the area or district. YES NO
Minnesota Statutes Chapter 394.27, Subd. 7
1. Can the property in question be put to a reasonable use without a variance? YES NO
2. Is the plight of the landowner due to circumstances unique to the property and
not created by the landowner? YES NO
3. Will granting the variance alter the essential character of the locality? YES NO
Minnesota Supreme Court “practical difficulty” standards
1. Is the requested variation substantial? YES NO
2. Would the variance have a substantial impact on government services? YES NO
3. Would the variance effect a substantial change in the character of the neighborhood
or be a substantial detriment to neighboring properties? YES NO
4. Can the practical difficulty be alleviated by a feasible method other than a variance? YES NO
5. Was the practical difficulty created by the property owner? YES NO
6. On balance, will granting the variance serve the “interests of justice”? YES NO
Minnesota Supreme Court “equitable” standards
1. Did the applicant act in good faith? YES NO
2. Did the applicant attempt to comply with the law by obtaining a building permit? YES NO
3. Did the applicant obtain a permit from another entity that violated the law? YES NO
4. Did the applicant make a substantial investment in the property? YES NO
5. Was construction completed before the applicant was informed of the impropriety? YES NO
6. Is the nature of the property residential/recreational and not commercial? YES NO
7. Are there any other similar structures on the watercourse? YES NO
8. Are the benefits to the county far outweighed by the detriment the applicant
would suffer if forced to move the structure? YES NO
Prepared by Dale R. Powers, AICP, Zoning Administrator
September 16, 2008
Page 12 of 12