Edina gives up court battle over $1M house built too close to street

Neighbors on Edina's Brookview Avenue will have to learn to live with a nearly $1 million home that sits far to one side of a double lot and was built closer to the street than city ordinances allow.

The Edina City Council decided earlier this month not to appeal a Hennepin County District Court decision that the developer, JMS Custom Homes, was not at fault for violating city setback requirements that were "vague, ambiguous and unworkable." Neighbors had wanted the new house moved back from the street and to the center of the lot, saying that was the only way it would fit in with the neighborhood.

The City Council unanimously agreed that the chances of winning an appeal and getting a court order to move the house to the middle of the lot were remote, said City Manager Gordon Hughes. An order to merely comply with city code by moving the house 7 feet back from the street wouldn't materially change the situation for neighbors, he said. He said settlement discussions with the homebuilder included a demand for several hundred thousand dollars from the city to move the house, a cost council members considered prohibitive.

The council's decision angered neighbors who live near the new home at 6120 Brookview Av.

"The city has abandoned us," said Dick Whitbeck, who lives in a historic 1860s farmhouse next door. "Everything about our land is now compromised ... the value of our property, the aesthetics and the environment."

Construction of the new four-bedroom home was controversial from the start. Neighbors were angered that JMS removed a large oak tree after buying the lot and removing the small rambler on the site. The property, a nonstandard 100-foot-wide parcel, actually was platted as two lots but is considered suitable for only one house by the city.

JMS applied to Hennepin County to separate the land into two parcels, but the county took no action except to notify the city. Edina officials had already denied a request from a previous developer to subdivide the lot so two houses could be built on the land.

"We are very upset with the way things turned out," said Jackie Whitbeck. "We did nothing wrong, and we're the victims here."

Protest signs sprang up in yards around the property. The issue went to court last winter after a neighbor reported to the city that the new house was built too near the street. After calculating that the house was 7 feet too near the road, based on a requirement that the setback be equal to the average for existing houses on the same side of the street, the city issued a stop-work order. That was overturned by the court, which later ruled that the house met "the more general terms" of the city's complex setback rules. A surveyor hired by JMS had done the original setback calculations.

JMS owner Jeffrey Schoenwetter has maintained that he did nothing wrong and complied with Edina's building codes.

This week, he called the situation "unfortunate" and said the house will go up for sale in the next few days for between $900,000 and $1 million. The yard will be sodded and landscaped and Schoenwetter said it will be up to the new owner to decide whether to try again to subdivide the lot.

"It's very sad for the city and very unfair that the developer had to go through this type of process," he said. "I really am very happy to leave it behind us."

Hughes said the city's legal costs will be paid by the city's insurance. The court ruling is the first that has indicated any problem with longstanding language in building ordinances, he said, and the city will look at revising that language.

The city is now asking for more information when builders or individual property owners come to the city with surveys for new homes "to head off math errors" such as the one that apparently led to the siting of the Brookview house too close to the road, Hughes said.