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HomeMy WebLinkAbout1992-08-12 BAA MINUTES•• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS ENGLEWOOD, COLORADO AUGUST 12, 1992 The regular meeting of the Englewood board of Adjustment and Appeals was called to order by Chairman Welker at 7:30 p.m. Members present: Members absent: Also present: Seymour, George, Smith, Cohn, Clayton, Waldman and Welker. None. Dan Brotzman, Assistant City Attorney Harold Stitt, Planning Administrator Tom Rusk, Building & Safety Staff Advisor The Chairman stated that with seven members present, five affirmative votes would be required to grant an appeal or a variance. He stated the Board is authorized to grant or deny· a variance by Part 3, Section 60 of the Englewood Municipal Code. APPROVAL OF MINUTES: Board Member Seymour moved that the minutes of July 8, 1992, be approved as written. Board Member Clayton seconded the motion. Upon the call for a vote on the motion, all members voted in the affirmative. The Chairman ruled the Minutes of July s, 1992, be approved as written. PUBLIC HEARING -CASE 113-92: 4185 South Huron street The Chairman explained the procedure of the meeting, stating for the variance at hand, the request would be identified by staff, and the applicant and those that wish to speak would then have the opportunity to be heard. The Chairman opened the Public Hearing stating he had proof of publication and posting . Harold Stitt staff Advisor was sworn in for testimony stating that the applicants, Dan and Barbara Fout, for the property at 4185 South Huron Street, were requesting a variance to increase the floor area of an existing garage in excess of 1,000 square feet. He stated that this is a variance from Section 16-4-2:M,l,e. Maximum Total Floor Area, Accessory Buildings and Permitted Accessory Uses, of the Comprehensive Zoning Ordinance. The Chairman asked the applicant to come forward to testify. Barbara Fout 4185 South Huron Street was sworn in for testimony. Mrs. Fout stated that their request was to provide additional storage for their numerous vehicles and to remove them from the street and out of the weather. Mrs. Fout added that in her opinion having the vehicles off the street would be an asset to the integrity of the neighborhood. Mrs. Fout entered into the record photographs of the property to assist in illustrating that the City ditch bisects the property; the location of existing structures on the property; the various cars and recreational vehicles they own; and the location of the existing two-car garage and the proposed · addition. Also entered into the record were statements from four of the Fout•s neighbors, one of which was from Roger Fraser, the City Manager, stating they have no objection to the request. Mrs. Fout explained that they started construction on the detached garage without a permit, stating that it was an oversight on their part; and that they have rectified the situation by submitting an application for a permit and plans for the construction to the Building Division. Mrs. Fout concluded by stating that in her opinion, the property was unique because of its size, being almost an acre in size, and that in her opinion the request would not have a negative impact on the neighborhood. There were no further speakers for or against the request. The Chairman asked the staff to approach the podium. 2 •• • • •• • • Harold Stitt Staff Advisor answered some questions from the Board. Mr. Stitt stated the purpose of the ordinance was to limit the size of a garage to 1,000 square feet in order to avoid having over-sized structures on single family lots. Mr. Stitt stated the existing detached garage has a floor area of 745 square feet and that the proposal to increase the floor area by 427 square feet, would increase the total floor area to 1, 172 square feet. Mr. Stitt testified that in 1984 an attached garage was constructed on the property with a floor area of 528 square feet. If the proposed additional footage is added to the detached garage, it would result in a total garage floor area of 1,700 square feet. Mr. Stitt stated that the site has two unique characteristics: first, the size of the property which measures 198 feet by 200 feet; and second, the City Ditch which bisects the property. Mr. Stitt said that the location of the City Ditch precludes increasing the size of the existing attached garage. Mr. Stitt stated that the Board's focus should be on whether or not the existing detached garage should be increased beyond the permitted 1,000 square feet, and that the garage attached to the principal building, should not be part of the consideration. The Chairman incorporated the Staff Report and photographs into the record and closed the Public Hearing. BOARD MEMBER SEYMOUR MADE A MOTION THAT FOR CASE #13-92, THAT BARBARA AND DAN FOUT, OWNERS OF THE PROPERTY LOCATED AT 4185 SOUTH HURON STREET, BE GRANTED A VARIANCE FROM SECTION 16-4-2:M,l,e. MAXIMUM TOTAL FLOOR AREA, ACCESSORY BUILDINGS AND PERMITTED ACCESSORY USES, COMPREHENSIVE ZONING ORDINANCE. Board Member Waldman seconded the motion. Discussion ensued concerning whether or not to limit footage over the allowable 1,000 square feet. A motion was made by Board Member Seymour to amend the original motion that the garage not exceed 1,200 square feet was made. Board Member Waldman agreed to the amended motion. Discussion ensued. All members voted in favor of the motion to amend . 3 The amended motion read: BOARD MEMBER SEYMOUR MADE A MOTION THAT IN CASE #13-92, BARBARA AND DAN FOUT, FOR THE PROPERTY LOCATED AT 4185 SOUTH HURON STREET, BE GRANTED A VARIANCE FROM SECTION 16-4-2:M,l,e. MAXIMUM TOTAL FLOOR AREA, ACCESSORY BUILDINGS AND PERMITTED ACCESSORY USES, TO CONSTRUCT AN ADDITION TO AN EXISTING DETACHED GARAGE AND THAT THE FLOOR AREA IS NOT TO EXCEED 1,200 SQUARE FEET. Board Member Waldman seconded the motion as amended. The members locked in their votes and gave their findings of fact: Board Member Waldman voted "yes" stating the property is unique and exceptional, and that allowing the additional footage to the garage would not adversely affect the public safety, the neighborhood, and affords the minimum relief for the applicant. Board Member Smith voted "yes" stating he agreed with the previous reasons stated by Board Member Waldman. Board Member Seymour voted "yes" stating there were no objections from neighbors, and that since the property is almost an acre, it is therefore exceptional. Board Member George voted "yes" stating she concurred with the reasons previously stated by members. Board Member Cohn voted "yes" agreeing with the previous stated reasons by members. Board Member Clayton voted "yes" stating the lot is exceptional in that it is almost an acre, and that because the ordinance does not take into account lot coverage, the variance should be allowed. Chairman Welker voted "yes" stating he concurs with previous stated reasons by members, and that in his opinion the additional footage for the garage would not be detrimental to the neighborhood. When the votes were displayed, all seven (7) members had voted in favor of the variance request. The Chairman ruled the variance was granted and directed the applicant to comply with the necessary building permits and regulations. 4 •• • • • • PUBLIC HEARING -CASE #14-92: 550 East Eastman Avenue The Chairman opened the Public Hearing stating he had proof of publication and posting. Harold Stitt Staff Advisor identified the request stating the applicant, David Brandon, for the property at 550 East Eastman Avenue, was requesting a variance to allow the rebuilding of a nonconforming use in the event it is destroyed or damaged beyond sixty percent. This is a variance from Section 16-6-l:G, Nonconforming Use of Building or Structure, Comprehensive Zoning Ordinance. Mr. Stitt added that in addition to the five standard conditions that must be met for granting a variance, the five Use Conditions must be considered by the Board. The Chairman asked the applicant to approach the podium. David Brandon 12599 East Bates Circle, Aurora was sworn in for testimony. Mr. Brandon explained that he obtained the property in a foreclosure situation in March of 1992 and remodeled both structures on the property before selling the property, July 23, 1992, to Ms. Emmitt, who currently occupies the front house (3201 south Pearl Street) . Mr. Brandon entered into the record photographs to assist in describing the two structures, stating the front house is approximately 960 square feet with a partially finished basement, and that the house in the rear is 646 square feet with a dug out basement for the furnace. Mr. Brandon stated the two structures have been on the lot for over 50 years, and that the owners have come to rely on the availability of these two units. Mr. Brandon stated that in his opinion, should the house at 550 Eastman Avenue be destroyed, it would be a hardship to the property owner if it could not be rebuilt. Entered into the record by Mr. Brandon were statements from three (3) neighbors stating they have no opposition to the request. Mr. Brandon concluded that in his opinion a variance to rebuild the home on East Eastman Avenue would not impair the adjacent properties or the neighborhood; that peculiar and undue practical difficulties for the owner would occur if the house on Eastman were not rebuilt in the event it is destroyed; and that the owner(s) would suffer financial hardship with the loss of rental income . 5 Geraldine Emmitt • 3201 South Pearl Street was sworn in for testimony. Ms. Emmitt stated she purchased the property in July of 1992 and is currently occupying the house at 3201 South Pearl Street and has a tenant renting the house at 550 East Eastman Avenue. Ms. Emmitt .stated she formerly owned a single family house on Grant Street in Englewood and realized that upon her retirement, she would lose the house because of her reduced income. She stated her intention of owning the subject property was to be able to live in one of the houses after retirement, and to be able to afford the mortgage by renting the house in the rear of the property. Ms. Emmitt stated the original contract for purchasing the property did reflect a variance situation; however, it did not occur to her that should the 550 East Eastman Avenue structure be destroyed, that the City would not allow it to be rebuilt. Ms. Emmitt stated that the focus of her intention in purchasing the property was to be able to afford the mortgage by renting a second house and had she been cognizant of the fact that the nonconforming use regulations would not allow rebuilding the secondary structure were it destroyed, she would not have gone through with the contract of purchase. Ms. Emmitt stated that her insurance would provide $36,000 for the rebuilding of the 550 East Eastman Avenue structure, but were the City to prohibit the rebuilding of the structure, she would not be able to afford the mortgage payment without the rental income. Ms. Emmitt explained that the $36,000 to be paid by the insurance company for rebuilding would be applied to the principal, which would not lower her mortgage payment to a point that she could afford the mortgage payment without the rental income. Ms. Emmitt concluded by reiterating her entire purpose for purchasing this particular property was to live in the house at 550 East Eastman Avenue in the event her retirement income did not support her living in the larger house. Ms. Emmitt stated if the 550 East Eastman Avenue structure were destroyed and not allowed to be rebuilt, a hardship would inevitably occur, and she would perhaps even risk losing the property. Ms. Emmitt answered questions from the Board, stating she saw the "zoning verification" of the nonconforming use at the closing; was advised by FHA of the nonconforming use; and had already resided at 3201 South Pearl when Mr. Brandon showed her a copy of his application for this case. Ms. Emmitt stated she was not told before purchasing the property that the rear structure could not be rebuilt in the event sixty per-cent or more damage occurred. 6 •• • • • Harold Stitt Staff Advisor was requested by the Board to approach the podium. Mr. Stitt advised the Board that their consideration for the subject property was to determine if the nonconforming structure on the property could be rebuilt in the event it is destroyed beyond sixty-percent; and that the request did not apply to the "principal" structure on the property, that being 3201 South Pearl Street. Mr. Stitt stated that granting this "use" variance would be essentially rezoning a property; therefore, if the variance were allowed, it would be allowing a circumstance that other properties in that particular zone would not be allowed. Mr. Stitt explained nonconforming uses are special and extraordinary with stringent requirements placed on the nonconforming properties as a protection for the community as a whole. Mr. Stitt stated no extraordinary circumstances are evident in this request, and if the variance were to be granted, the community would lose substantial protection for conformance to occur in the future for the nonconforming property . The Chairman incorporated the Staff Report and photographs into the record and closed the Public Hearing. BOARD MEMBER WALDMAN MOVED THAT IN CASE #14-92, FOR THE REQUEST FILED BY DAVID BRANDON, FOR 550 EAST EASTMAN AVENUE, THAT A VARIANCE BE GRANTED TO ALLOW THE REBUILDING OF A NONCONFORMING USE IN THE EVENT IT IS DESTROYED OR DAMAGED BEYOND SIXTY PERCENT OF ITS VALUE. THIS IS A VARIANCE FROM SECTION 16-6-l:G, NONCONFORMING USE OF BUILDING OR STRUCTURE, COMPREHENSIVE ZONING ORDINANCE. Board Member Seymour seconded the motion. Discussion ensued. The members locked in their votes and gave their findings of fact: Board Member Smith voted "no" stating the request does not meet any of the requirements for granting a variance. Board Member George voted "no" stating she also agreed that the request does not meet any of the criteria for granting a variance. Board Member Seymour voted "no" stating the Board should not be expected to speculate on whether or not the structure might be destroyed . 7 Board Member Cohn voted "no" stating she was of the opinion that the Board should not participate in spot zoning, and that the •. request is premature and pure speculation. Board Member Clayton voted "no" stating there was an absence of exceptional conditions, and that he was of the opinion that nonconforming uses should be viewed as becoming conforming uses in the future within the appropriate zone districts. Board Member Waldman voted "no" stating there was nothing exceptional about the property; therefore, the variance should not be granted. Chairman Welker voted "no" stating it would be difficult to address a possible future hardship; that if the Board granted the variance they would be participating in a rezoning; and that it is not the Board's responsibility to consider an owner's financial hardship. When the votes were displayed, all seven members voted against the request. The Chairman announced the variance had been denied. The Chairman called for a short recess at 8:55 p.m. The Chairman reconvened the meeting at 9:05 p.m. with the same . persons present. PUBLIC HEARING -CASE #15-92: 3028 South Pennsylvania street The Chairman opened the Public accordance with the procedure for identify the request, and then the side of the case. Harold Stitt Staff Advisor Hearing and stated that in appeals, the City staff will appellant would present their stated that the applicant, Mr. Brice Mercord, owner of the subject property, was appealing Section 1207. (a) of the Uniform Building Code, which states habitable space shall have a ceiling height of not less than seven feet six inches (7 1 6 11 ). Tom Rusk Building & Safety Inspector was sworn in for testimony. Mr. Rusk explained that the ceiling height issue actually resulted from an inspection conducted in 1990 of the two rental units; the basement and the main floor. When the property went into foreclosure it was stipulated by the Building & Safety Division that before anyone could occupy either unit, the violations had to be 8 • • •• • • corrected. Mr. Rusk stated that Mr. Mercord agreed to correct all the violations except for the ceiling heights. Mr. Rusk stated that as a result of his inspection on July 13, 1992, he found the rooms in the basement apartment met the six feet eight inch ( 6 '8") requirement of the Housing Code but that the main floor had 3 rooms which did not meet the seven feet, six inch (7' 6 11 ) requirement as stated in the Uniform Building Code. Mr. Rusk stated the kitchen has a sloping ceiling ranging from 6' 3 11 to 6 '9 11 ; the dining room has a sloping ceiling ranging from 6'2" to 7'1 1/2"; and the elevated bedroom off the master bedroom has a ceiling height ranging from 6 1 8 to 6 1 11". Mr. Rusk stated that changed to meet code lowering the floor, questionable. the ceilings could be structurally by structurally raising the roof or but the practicality of it is The Chairman asked the applicant to come forward for testimony. Brice Mercord 149 canyon Vista Drive Morrison, CO 80465 was sworn in for testimony. Mr. Mercord stated he has been the property owner of 3028 South Pennsylvania Street for one month during which time he has brought the two units up to code, by taking care of the plumbing, heating, and electrical violations. Mr. Mercord entered into the record photographs to assist in visualizing the property. Also entered into the record was a diagram to assist in illustrating the lay-out of the two units and to discuss the ceiling heights of the three rooms on the main floor. Mr. Mercord stated the structure was built in 1926 when ceiling heights were not a code issue, and that ceiling heights such as the ones on the main floor are common for older structures. Because of the age of the house, Mr. Mercord stated he was of the opinion that current codes should not apply and was challenging the ceiling height requirement by entering into the record a copy of the "administrative" section of the 1988 Uniform Building Code, and reading part of Section 104(b) into the record: Application to Existing Buildings and Structures: Cb). Additions, Alterations or Repairs. Additions, alterations or repairs may be made to any building or structure without requiring the existing buildings or structure to comply with the requirements of this code •.• 9 Mr. Mercord concluded his testimony stating that he had corrected plumbing, mechanical, and electrical problems; that he was of the opinion the house was a safe structure; and that he questioned the practicality of either raising the roof or lowering the floor in order to meet the seven foot, 6 inch ceiling height requirement, which he was of the opinion should not apply to older structures. There was no further testimony. The Staff Report and exhibits were made part of the record, and the Chairman closed the public hearing. BOARD MEMBER SEYMOUR MADE A MOTION THAT IN CASE #15-92, FOR BRICE MERCORD, PROPERTY OWNER OF 3028 SOUTH PENNSYLVANIA STREET, THAT AN APPEAL BE GRANTED FROM SECTION 1207. (a) OF THE U.B.C. WHICH STATES HABITABLE SPACE SHALL HAVE A CEILING HEIGHT OF NOT LESS THAN SEVEN FEET SIX INCHES (7 1 6"). Board Member Smith seconded the motion. Discussion ensued. The members locked in their votes and gave their findings of fact: Board Member Waldman voted "yes" stating the ceiling height is a pre-existing condition and that he agreed with the applicant that the Building Department has misinterpreted the code. Board Member Clayton voted "yes" stating there is a lack of evidence that this is a heal th and safety issue, and that the ceiling height condition is a pre-existing condition that should not have to meet the current code. Board Member Cohn voted "yes" stating she was persuaded by Section 104 (b.) of the U.B.C. that the applicant should not have to alter existing conditions. Board Member smith voted "yes" stating he agreed with the previous reasons stated by members. Board Member George voted "yes" stating she concurred with the other members, and that in her opinion a safety issue was not present. Board Member Seymour voted "yes" stating he concurred with the reasons previously stated by members. Chairman Welker voted "yes" stating he concurred. When the votes were displayed, all seven members had voted in the affirmative 7-0. 10 •• • • •• • • Chairman Welker stated that the appeal had been granted • REQUEST FOR RE-HEARING CASE #11-92: The Chairman reported that a letter had been received from Robert Johnson of 4675 South Inca Street. The Chairman explained that the issue that the Board must decide is whether or not the issues stated in the letter constitute new evidence germane to the case; and whether or not the evidence justifies a rehearing. BOARD MEMBER SMITH INTRODUCED A MOTION THAT THE REQUEST FOR A REHEARING REGARDING CASE #11-92 FOR ROBERT JOHNSON, 4675 SOUTH INCA STREET, BE CONSIDERED. Board Member Clayton seconded the motion. Discussion ensued as to whether or not the applicant had new evidence to warrant a rehearing. The members locked in their votes and gave their findings of fact as follows: Board Member Cohn voted "yes" stating that in her opinion it was the Board's responsibility to allow the applicant to present any new evidence . Board Member Clayton voted "no" stating he was not convinced there was not any new evidence. Board Member Waldman voted "no" stating in his opinion the letter submitted by Mr. Johnson does not have any new evidence that he could not have presented at the June hearing. Board Member George voted "yes" stating in her opinion since the applicant submitted the letter, that the Board should have a rehearing to allow the applicant to present new evidence. Board Member Seymour voted "yes" stating that he was of the opinion that the Board should allow the applicant the opportunity to present the new evidence. Board Member Smith voted "yes" stating the applicant should come before the Board and present what he thinks is new evidence. When the votes were displayed four members voted in favor of the motion, with two members voting in opposition to the motion. Chairman Welker was absent for the June 10th hearing and therefore abstained from voting. · Chairman Welker announced the vote,· and that the rehearing would be scheduled for the September 9, 1992 meeting . 11 STAFF CHOICE: None. A'rl'ORNEYS CHOICE: None. BOARD MEMBERS CHOICE: Chairman Welker announced he would not be able to attend the September 9, 1992 meeting. With no further business to come before the Board, the meeting was adjourned at 10:45 p.m. Respectfully submitted, Cathie Mahon, Recording Secretary 12 •• •• •