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Approved not know why the right of way is wider. He added that there is a history of this type of issue along Old Hwy 8. The right of way along this road is irregular and it may be that the setbacks were set over time and in different pieces. Grachek added that at one point the Ramsey County set back was further back then it is now for his property. He was told by Ramsey County that prior to Hwy 35 going in, there was a thought that Old Hwy 8 may be the main corridor, which is why everything was set back so far. When Hwy 35 did go in, the set backs were pushed up to make it more feasible for businesses. Their property was released last year and the single family residential is the only property that has not been released. Zisla stated that those who are inclined to vote for approval on this application could state that the right of way constrictions have impacted the development. He added that the forty foot set back could become meaningless if someone decides to develop the house to the south, the City will have said in advance that they could have a narrower set back. Mann replied that she agrees with Commissioner Zisla the hardship has not been proven, the argument that employees have to walk from further away to get to the building is not sufficient. She added that since the property to the north already has that type of parking lot it could be used as a precedent. Zisla replied that would not meet the variance requirements, if there is an error on one property it should not be extended to another. Schiferl stated that the property owner stressed the need of a parking lot is to relieve a safety issue, but that argument may not be adequate since if the property is sold this issue may not occur if the property is used differently. Baker replied that a 100,000 square foot building will be used as a warehouse and would have truck traffic no matter what type of use. Zisla stated that if a variance is going to be granted the Commission should have some record of rational. O'Brien stated that the earlier argument for the forty foot set back is not valid since the properties to the north, across the street and to the south past the residential house all have parking with in the set back. Grachek stated that Old Hwy 8 is a very commercial road and numerous properties have parking lots in the set back. He added that they will be adding a storm water retention pond and are willing to comply with what the City requires. Schiferl stated that he would be more comfortable approving this application if the Commission knew what happened with the property to the north and if staff could verify that this property is Light Industrial. He added that he is not sure how this property would have been approved in the 1980's since it appears that there would not have been any set back if Ramsey County had not vacated the right of way. Fernelius stated that he had looked for documentation of how the parking for the building to the north was approved with a zero set back. He added that there is nothing that states that the Hank's property is non-conforming, it appears to meet all the set backs. He did find the site plan reviewal for the parking lot for the property to the north; however it did not show a variance. Schiferl asked if the there was an assumption by the City and the property to the north that the right of way was to be vacated when it was approved. Fernelius replied that may be a possibility, and added that he wished he had more history on the property to be able to answer that question. Zisla inquired if the site plan for the property to the north shows the lot lines and if staff could tell the Commission where the lines are for C:\Documents and Settings\jgoepe\Local Settings\Temporary Internet Files\OLK28\09-19-2006.doc Page 4 of 7