HomeMy WebLinkAbout1998 Resolution No. 046•
RESOLUTION NO . ~
SERIES OF 1998
A RESO ,UTION AUTHORIZING AN ENCROACHMENT INTO THE CITY OF
ENGLEWOOD'S RIGHT-OF-WAY FOR A RETAINllW WALL AT 4096 SOUTH
CHEROKEE STREET.
WHEREAS, the Owner of 4096 South Cherokee Street ha requested an encroachment into
the City's Right-Of-Way for purposes of building a retainm;g wall on the property; and
WHEREAS , the Owner of 40!16 Suuth Cherokee Street h;,,s been denied an administrative
encroachment pursuant to the Englewood Municipal Code I l-3-4(C); and
WHEREAS, t he Owner requests approval of the encroaccment as described in
Attachment A, by the Englewood City Council punuan to E.M.C. ll-3-4(D ); and
WHEREAS, the City Council finds s ufficient cause t(1 approve the encroachment into the
City's Right-Of-Way;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO, THAT:
5.eililm.l. Th e City Council finds sufficient cause to apprc..-e the encroachment into the
City's Right-Of-Way. Subject to the following conditions:
1. The so le encroachment shall be a retaining wall bcilt adjacent to the existing
s idewalk , less than twelve inches (12") behind ~ sidewo!k, and which conforms
with the description in Attachment A.
2. This encroachment shall be s ubj ect to all other ter.ns and conditions relating to
encroachments in E .M.C. Jl-3-4(Al and 11-3-4( including "sigh t t riangle"
regulations for all fe n ces .
ADOPTED AND APPROVED this 17th day of February, 1998.
fJJiJ J ,iq,.---::-::
I, Loucrishia A. Ellis, Ci ty Clerk fo1;.;he City of Englewood. Co,Jli;rado, hereby certify the
above is a true copy of Reso lution No~, Series of 1998. (~ .
t Za>»Alrl-<Ltf ~
Loua-,.shia A. Ellis
ATTACHMENT A
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COUNCIL COMMUNICATION
Date IAgamlltem I Subject
Encroachment Agreement •
February 17, 1998 11 Ci 4096 S. Cherof.ee
Initiated By Staff Source
Robert Simpson , Director of Neigh borhood and
Neighborhood and Business De velopn,ent
COUNCIL GOAL ANO PREVIOUS COUNCIL ACTION
There has been no previous action on thlis property.
RECOMMENDED ACTION
Busi ness Development
Council cons id eration of a resolution tor an Encroachment Agreement
BACKGROUND, ANALYSIS , ANO ALTERNATIVES IDENTIFIED
In November of 1997, Ms . Joanne Swarnson , property owner of 4096 South Cherokee Street, hired Mr.
Michael Hommel of "Designs by Sundo\Cllll ", to erect a stone wall around the property . Mr. Hommel
started the project without benefit of a pennit or license .
Rocks for the retaining wall were delivered to the subject property; many of the rocks were on public
right-of -way on Cherokee Street. A Nottee of Violation was issued by Code Enforcement to Ms.
Swanson on November 21 , 1997, for oostruction of publ ic rig ht-of-way. On November 24 , 1997, the
Building Insp ector issued a Stop Work On:ler for work begun without benefit of a permit or contractor's
license .
Mr. Michael Hommel , Designs by Sundown. subsequen tly applied for a building permit and contractor's
license on November 24 , 1997.
On January 12 , 1998, Ms . Swanson. ar.itf Mr. Hommel appeared in court as a result of lhe Notice of
Violation . Th e court ordered Ms . Swanson to resolve the encroachment problem promptly.
Encroachments into public right-of-way are authorized by Section 11 ·3-4:C , of the Englewood
Municipal Code . En croa chment Agreenents are joi ntly issued by the Depa rtment of Neighborhood
and Busines s Developme nt. and the De:iartment of Pub lic Works . and must comply with certain
conditions .
Neighborhc od and Business Development staff reviewed the Encroachment Agreement and finds it will
have no negat ive impact on the ne ighborhood. and it will not adversely affect adjacent property .
However, the proposed Encroachmen Agreement was not approved by the Director of Public W o rks
because the retaining wall does not me,si the condition of placement at least one foot behind lhe
sidewalk , a requirement in Section 11 -3-4 (A). Englewood Municipal Code.
• Ms . Swanson is appealing the adm in1si:-a1,:0 denia: of an encroachment.
ANANCIAL IMPACT
No direct City Impact.
UST OF ATTACHMENTS
• Building permit application and site plan
• Ms . Swanson's letter sent to Mayor Bums and copy to City Manager on January 2, 1997
• Memo from NBD office with criteria for Encroachment Agreement-with proposed Pe rmit of
December 10, 1997
• Memo from Director of Public Works denying approva l of Encroachment Al, reement
• Letter confirming alternatives for Ms. Swanson from from Assistant City Attorney afte r the January
12 , 1998 , court appearance for Ms. Joanne Swanson .
• Proposed Resolution
A
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NGLEWOOO, COLORADO
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De<:ember 2. l 997
Mayor Tom Bums
Cicy Manager's Office
3400 S. Elui St.
Englewood, CO 80 I 10
De:ir Mayor Bums :
JOANNE E. SW ANSON
4096 SOUTH CHEROKEE STREET
ENGLEWOOD, COLORADO 80110
(303) 789-4726
RECEIVED
DEC 3 1997
CITY MAN·AGERS OFFICE
ENGLEWOOD . COLORADO
I am writing as a h.JmeOwner within the cicy oi Englewood. R.ec:ndy I have experienced
s.-:>mc difficulcy wilh cbe City of Englewood in my attempt 10 have a landscping wall built
around my property . This lener is to inform you of this difficulcy , as I believe it is
something you should be aware of.
During November. 1997 I hired an outfit called "Designs by Sundown ", represented by
Michael Hommel, to build a rock landscnping wall 10 replace one whicr. has been in serious
aeed of repair sine: [ moved in seven ye:us ago . ! was unaware that a permit was required
for landsc:lping type work. Apparently , Michael Homme l was also unaware of this as he
bas done woric for other cities where no such permit is required.
On Friday , November 21st. Michael's worxcrs delivered the roclcs in front of our house on
Cherokee Sa-eet in order 10 begin work on Monday . November 24th . Unforrunllll'1 1y, the
roclcs were partially in the street and. admittedly , a danger to through traffic. Fonuna.tely ,
the City had put up barricades to ~vent an y problems. [ arri ved home that Friday evening
to find cbe rocks and a Notice of Violation from the Citv with a note to oil so meone named
Nick right away. I called Nick Johnson . Traffic Specialist for Public Works , apologizing
for the problem and aslcing whal exactly he needed from me . Mr. Johnson provided me
•Nith limited information but did say that we needed. at the very least, 10 move the rocks
over into the parking-lane . I qien oiled Michael at home and told him the roc1cs were in the
, ·~1 3I\d.irppeliiii g traffic. He had someone at my house fim thing the next day to move
'--'ne·rd'c1cs•ilfto the parking lane . Ni ck Johnson late r told Michael this was unacceptable . !f
so , why did he tell me to have them moved into the parking lane '
On Monday , November 24 th , Michael's workers began work wi1h ou1 a permit. however
sto~ work at the request oi the City . To his credit. as soo n as Michael became aw= of
tbe paperwork required to complete ihe job , he was at the City office fili ng the req uired
paperwork. Toe Zoning and Building Dcparanems were having a disagreement on whether
a pennit was acrually require d (if the y don 't know. how are we supposed to know?). [ am
still unc lc:ir as to whether this permit is re:illy required' l'vlichael spent a mini mum of three
hours at Cicy offic:-; ~onday, the 24th. and Tuesday. the "5th . ir. an attempt to complete
th e requirem ents. Dun ng his Mo nday meeting with Nic k Johnson .. \lr. Johnso n :ibruptl y
informed Michae l he was go ing to lunc h. Mic hae l waited until ~lr. Johns on rerurned from
lunch to fi nish the ir meeting. On Wednesday. as \-lichae! was moving the rocks out oi the
meet :ind onto our pro perty . due to Mr . Johnson's d.isatisiac:io n with th e locltion of the
rocks. he was again asked to s10p wo rk as Mr . Johnso n wanted a re vi sed traffic control
plan. It seems Mr. Johnso n is not sarjsri . d with much of :inythmg .
Mayor Toln &vm·Pau I•2
i
We then 3lso di.!covered a problem widl m Eciaaaciunlnt Apaemenr aa I wanted the wall
built riiht up IO tbc sidewallc. I was also--!Im dlis was a problem :is one can drive
uoundTEn1Jewooc1 • see several wails baii1I rip up io die sidewallc. Why it seems to be
such a problem widJ my wall. I don 't laJC,w _ [ specific::llly requested the wall up to lhe
sidewalk as I a111 a disabled person and I am imci=singly •mable 10 mainuin the weed
problem growing in chm section.
Michael Hammel and I have been extremely~ and cooperative with the City ro this
point H~wever. last week we were bodl issied summons by Marilyn Llmb. a Code
Enforcement Officer. My summons specificdly swes "Obsauction of Public Right-of-
Way" and "Encroachment Agre:ment N~ Jud requires me ro appear on December
17111. Mayor Burns. in all honesty , I must you rlw I feel this summons is the mosr
ouaageous wasu: of ra.~payer money I have= be:ud of. Further, I feel that Michael has
experienced unre:isouable harassment by J:ll"""d Johnson and the City, City worxc:s have
been banging out around my house alm011 ci!aily since this began. Some of the City
workers have been exa-emely helpful brlt tbme lDll aren't an, c:wsing what I feel to be
unnecessary problems. Ate these people =5iden:d "customer service"? If so , there is a
re:i.l lack of a-aining! Neither Michae l nor r cave n:sisted anything the City has requested.
howe ver my patieace is running short L ...now hesitation. will tell you that Michael and
I should probably have done our rese:ucil :mi! cantac".ed the City prior to beginning work.
This has been a !=ming experience for bcxi:I of us.
At this point, I would like ro know whal = '!:le done to cxpedire construction of this wall .
My undersranding is that Nick Johnson aee:is to ai:prove lhc pennit but has not done so
yet He told me this morning be is waitia&<llll the "plan". I bad to c:311 him 10 find this out
bcc=c be failed to communicate this co ~ involved. The Zoning Dept will provide
him with a copy of our Improvement Survey Ce:tific:lre today. This should be all that is
necessary .
I would also like to k:now if it is a-uly ~ for me to appear in court over this,
particularly since I am scheduled for some i111!FY on December I 0th and. may be unable to
appear. I have a full time job and will eoougil wort due to the surg,~ry. An
arraignment and bearing an, rwo more ieeµ,sa far time off. In this resp,.<:t. I fe,::i the City
is upseaing my livelihood. as wetl as my a=pc to make my property t),,aer.
I 3FPreciare yo ur cc nsider:ltion and loolt fmrward ro he:iring from you.
Vcr:J Truly Yo~
\ _, "f'-~e.-------Joanne E. Swanson
cc: Gary Scars
City Manager
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TO:
FROM :
SUBJECT:
L,ATE :
Bob Simpson, Director of Neighborhood & Business Dev elopment
Chuck Esterly, Di.rector of Public Wod:s
Cathie Mahon, Planning Technician
4096 South Cherokee Street -Encroachment Agreement
December 10, 1997
This memorandum is two-fold: 1) consideration of criteria for an encroachment ~em:;
2) recent photos of identical retaining walls within the subject neighborhood.
CRITERIA:
Consideration of an encroachment must meet the following 5 criteria:
The first criteria• is that there are e.,ceptional conditions or circumstances relative to lire
properry that compliance with the regulations would result in a hardship to the properr;, ov,m-_
Toe property is exceptional due to several circumstances : it is a corner property , and the prc;c:ry
bas a 4 to 5 foot slope on the Oxford Avenue and Chtrokee Street sides of the propert:·. A
hardship would be incurred if the homeowner is not per:nitted to have a retaining wall in an
effort to shore-up the slope. In an effort to maimain those d.ttficult areas, the owner has pUI! in
landscaping that is maintenance free . As mentio11eci in t!J: letter ,o the City Manager, dacd
December 2, 1997, the owner is handicapped, an<', in an dfort to maintain the public rigb:t of
way, accepted the contractor 's proposal to have a retaining wall abutting the sidewalk.
The second criterion is that the encroachment wi/1 observe the spirit of the Ordinana and
protect the puhlic safery and we/fare throug.• the just application of the regu/a11ons. The
proposed placement of the retaining wall will not impact public safety and welfare of me
applicant 's property , adjacent property or neighborhood.
The third criter ion is that the encroachment wi/1 not adversely ajfecr adjacent properry or die
neighborhood Toe retaining wall will not adversel y affect adjacent property or within me
neighborho od. as reflected by the existing retaining walls in the neighborhood, illustrated in me
attached photographs .
NOTE: Photographs were taken of existing retaining wal ls in the subject stree t, Cherokee.. illld
the two surrounding streets: Bannock and De laware. As referenced by the photographs : 5
South Chero kee (directl y across from 409 6 Soul!; Cherokee ), the three propertie s in the 4000
block of Delaware , (4068. 4070 . 4080 So uth Delaware ) and 3997 and 400! Sl.luth Bannoc k. have
retainin g wal ls: therefore one more within the 4000 blocks of Bann ock. Cheroke e. and De laware
will have no impact in the neighborho od.
The fad glffrim is dlar drr a,crr,at:luna,r wlll not impact or impair the u.rc or d4ve/opr,unt of
adjaunt propmy. Gr,aa 1be fad 1hl& din a DO laa lba;l 1911iuirt ~•.ill ill ,m hundred
block of each S!mt, di.~ apeemmt -id have-no Impact wil.l_:,11 ~ neiahf,orhood
D0r will it G!mdie aljamlt prapaty.
'i"he fifth qil,cfp,'f. is ... OIC1'tNlclunlmt 18 "-,_, modJj/catlon MCU.fary lo grrl1lt ,.,;.1 /0
1/w propary ---1llc prapmai relaining wall ~ represcms,a. minor modification of
the fm:e/retainina wall iqallliom of the Zoning Ordimmce.
In conclusion. if the Clry requires removal of the 1-mining W>l!I already constructed on Cherokee,
and if the Ci ~ does -allow die property OWllcr f0 have the proposed relaining wall, the City
would be sol,jca fir ma:tift mfon:ement of the zoning regula!iom. SiJlgling out thL!l property
owner, wha~ rmoandiu& ..rope:rcy ownm have: I) fililcd to obtain a building permit, and 2)
fiiilcd to get a.:i m:uw:hmc:m agreement for thrir relaining walls, retlCCI! that this property
OWllcr has been subjcar,d to selec:tivc enforcement by the City .
Cc : Gary Seas, Clry Manager
Address file
·"..IW1l/OOWS.OESJCTOl'.WV BR!ER:ASE'MEMO .OOC
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ENCROACHMENT PERMIT AND INDEMNITY AGREEaNT
THIS A3REEtAF.NT, made lho 81f\ w,y of December, 1997, -Iha City of
.Englewood, Co loredo , • mumclpol 'eorporwllon; and Jo...,. E. S.WM.1u n, 4098
South CiierolhlB Street, Englewood, Colorado 80110:
«.111 owned!II of a certain parcol of real property legally deaeribed ar. Lo ts 21 -23
Bloc k 14, Broadwoy Helgh1 1, PPII 2077•03·3· 11 ·009.
1111d commonly known as : 4096 South Cherokee Street.
TIie City of Englewo .... , Colorado, hereby g11nt1 to Hkf ownertst ..... property at .
the above deacrlbed location p1Jrmi c1!0n t:1: .,act I relatning w.ill -,p1ch woutd
e,,c,oach 10.4 ff',t into publi c rlght •of-w ay to the back of the Cherokee Streat
s.dewalk , and 15 .2 feet Into public rloht of way to the back of sidewalk along
Oxford Av on ue .
The aforet1ald property ownerlal and their heirs and n sl gns ~d .-.J agree
lhot :
1. This permission 111 revocable et will and without cause the Ci ty o f
Englewood without heating md without notice other than No tice of
Revocation .
2 . The property ownerlsl shan remove said 1t,ucturet1J hon, rt. pubJic r ight-of-
we'v within thtrtv 1301 days after recetvlnv Notice of Revoc:alliml by peflonal
service or certified mail.
3. That said pro perty ownerlsl are ost.1 pped to deny the ritht 10f the City of
4 .
Englewoo d, Colorado , to revok e the Encroachment Pe'lrit to deny tho
properly rl ghlo of n ld City .
Tha~ said property owne1lsl agrees to reimburse and tndemmify the City of
Engl!wood , Colorado , for all necessary expenses of wha~e, 1ature that
mav bo Incurred In rovoking th is Pe ,mlt, removing the structurre placed in the
public rlght•of•way, or any other expense es a resut t of grantin g the
Encroachment Permit.
5 . That the said property owner lsl sh all ma in tain insurance ce.'!Bf'eg e sufficie'"lt
to satisfy any liability arising as e resul t of this En croechroent PeJmit end
Indemnity / 'lreement , end th e Ci t y o l Eng lewood shall be heft:I harmless from
any end all Uebltitles arising fr om this octl on.
6 . This ag reement sh ell inur e to the benefit of end be binding pen the heirs,
executors, admin istra tors , assigns , and successo,s of the rn;,ectlve parties.
IN WITNEr,s WHERE i:.. th e parties heve set their hands the G.Jr y and year first
written ab11vti .
City of Englewood
a munic ipel corporetiom
__:JyOwner:
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MEMORANDUM
TO:
FROM:
Bob s~__i:~eighlJOrhood and B~ D~opment
Chuc~;:-op,e&orofPublic Works
DATE: J&Duary 7, 1998
SUBJECT: ENCROACHMENT PERMIT, 4096 S. CHEROKEE ST.
We c.mnot approve the proposed Er=achment Permit and Indemnity Agreement as written.
The requimne.lts of the already issued Building Permit need to be adh! red to. Public Wodcs
.conditions , that are part of the Building PCtDllt, ;.::;!;;.!; !:he wall must be one (1) foot behind the
melt of walk and must respect the corner sight tri&Dgle for traffic. The proposed Encroachment
Agreement violaie:: both requimnents .
The sidewalk in this area is only 2' 8" wide , making the one foot setback mandatory . The sight
llriangle is necessary for traffic safety .
1w
.::: RickKahm
LaddVostty
NickJo:--..'lSun
Paul Kapaun
Nancy Reid
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Pnn1ed on Recycled Psi:,er.~
City o-: Englewood
.?FFICF; Oi' THE CITY ATTORNEY
Danilf L Bn>Czmln, Cly-=~:~~~:=,
Ms.JolUIIle Swnnson
4096 South Cherokee Stnet
Englewood, Colorado 80110
Regarding: Summons & Complaint No.329128.
J.IOOSoull!Elad-env-.Colofldo II0110-Zl04
~ (303) 782-%320 r-(303) 782-2331
! am enclosing the Copy of the Englewood ll=icipaI Code you requested. l\s you can see, frcm this
ordinance and a5 we discussed, there an, a,r:am requirements which must be met before you can
u:quire an encrnachment a greement far a ~landscape wall of the kind you wiah to
construct. Your wall, as it is cnmmtly desig:,ed does not comply with those requirements.
To finish the wall as it currently lays, you mast eet app!t>val frcm the City Council. I suggest you
speak with the Neighborhood and Bumiess IJe,,,eJcpment Depanment for information on how to
ask for that approval.
In the alternative you can:
l. Move the wall back the distance reqmred by .he Code and obtain a:i administrative
encrnachment agreement from the way.
2 . Move the wall back so that it is IDC:3Ie<i cm yc;m property and construct the wall after
obtainin~ a pernrit. If you wish to do tlm, I suggest that you contact Public Works for help
in determining the exact property iin~
3. Remove the wall.
As noted in your Deferred Prosecution, you =t scive your enaoacbment problem promptly.
Sin~erely ,, . D,
/2it//t 77 ! -~L
Nancy N( Reid, Assistant Ci,v Attorney