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HomeMy WebLinkAbout1994-06-08 BAA MINUTES• • MINUTES BOARD OF ADJUSTMENT AND APPEALS ENGLEWOOD. COLORADO JUNE 8. 1994 The regular meeting of the Englewood Board of Adjustment and Appeals was called to order by Chairman Waldman at 7:30 p.m. Members present: Seymour, Christman. Cohn, Clayton, Welker. and Chairman Waldman. Members absent: Smith. Also present: Harold Stitt, Planning Administrator Dan Brotzman, Assistant City Attorney The Chairman stated that with six members present, five affirmative votes would be required to grant an appeal or a variance. APPROVAL OF MINUTES: Board Member Seymour moved that the minutes for May 11, 1994, be approved as written. Board Member Clayton seconded the motion. All six members voiced approval in favor of the motion, and the Chairman ruled the Minutes approved as written . APPROVAL OF FINDINGS OF FACT: Board Member Seymour moved that the Findings of Fact for Case #6-94, Franklin Janssen. 4947 South Grant Street, Case #7-94, Frederick and Cathleen Law, 3106 South Vine Street. and Case #9-94, Carl Welker for Highwood Auto Body, 4822 South Broadway, be approved as written. Board Member Clayton seconded the motion. Upon the call for a vote on the motion, all six members voted in the affirmative. PUBLIC HEARING -CASE #11-94: 2280 West Oxford Avenue The Chairman set forth the procedure for conduct of the Hearing, stating that the variance request would be identified by City 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, and asked the staff to identify the request. Harold Stitt. • . Planning Administrator was sworn in for testimony. He stated the request was for a Use Variance to permit body and fender repair, and collision repair and painting, in conjunction with a motor vehicle repair business. This is a variance from the Comprehensive Zoning Ordinance, Section 16-4-12:E,2. Conditional Use. (Recording Secretary has added Mr. Stitt's staff notes and the five conditions for granting a use variance, for reference during the following testimony.) "The north 133 feet of the property is zoned B-2, Business District and the south 163 feet is zoned R-2-C, Medium Density Residence District ... the City has taken the position that the south half of this property may not be used for any nonresidential use ... " 1. The property cannot be used for any purpose permitted within the zone district applicable to the property. 2. The proposed use is the use for the property most compatible with the standards and policies set forth in the Comprehensive Plan . 3. The proposed use will not be detrimental to nor incompatible with other uses in the neighborhood. 4. The proposed use is the least traffic-intensive use possible which will permit some reasonable use of the property. 5. The alleged difficulty or hardship was not self-imposed. The Chairman asked the applicant to come forward for testimony. Eddie Tanguma. 1020 West Tufts. was sworn in for testimony. Mr. Tanguma explained he was present as a representative for Mr . Young Min Kim, owner of Young's Auto Inc. Mr. Tanguma stated in his opinion Mr. Kim should be able to operate on the entire property. He stated that if Adriatic were open and improved, it would clearly divide the R-2-C residential zone from the business zone district. He explained that if City Council had passed the rezoning for the area to a B-3 classification, it would have changed the back of the property, zoned R-2-C, to a business zone district, thus allowing Mr. Kim to utilized the entire property for his auto businesses. He stated that Mr. and Mrs. Kim have operated an auto repair business in Sheridan for thirteen years, and in 1992 purchased the property at 2280 West Evans with the intention of consolidating both businesses at the subject property instead of paying $1500 in rent for each location. Chairman Waldman interrupted Mr. Tanguma's testimony, directing him that the Board needs to hear testimony on the five conditions for granting a Use Variance. • He explained that they are bound by the Charter to grant a variance only if the • request meets all five conditions. 2 •• • • Mr. Tanguma stated the proposed use is compatible for the property; that the use would not be detrimental to other uses in the neighborhood because there are many auto repair businesses within the six block area; and that the proposed use would not have an impact on the traffic on Evans. He addressed the condition that the hardship was not self-imposed because when the Kim's purchased the property, they assumed the rezoning would be approved by City Council. Mr. Tanguma emphasized that the Kim's felt completely confident that the rezoning would be approved, allowing the property to be rezoned. instead of the current B-2 on the front of the property, and the R-2-C in the back of the property . Board Member Clayton questioned if Item #5 was a condition that could be met: "the a~leged difficulty or hardship was not self-imposed" because the Kim's purchased the property before the rezoning had taken place. Mr. Tanguma responded that the applicants felt assured that the rezoning would be approved by City Counc i l, and that with this assumption. they purchased the property intending to use the back area of the property for storage of vehicles. and the front for the used car business and minor auto repair. At this time the Chairman recognized the applicant, Mr. Kim. Young Kim. Owner of Young's Auto Inc. 2280 West Evans Avenue, was sworn in for testimony. Chairman Waldman asked the applicant if he understood that all five conditions have to be met in order to grant a variance. He directed to the applicant that his responsibility was to explain to the Board why the application under consideration meets the five conditions. Mr. Tanguma asked the Chairman if an interpreter. Mr. Steve Park, could assist with explaining the five cond i tions to Mr. Kim. A short recess was called at 7:55 p.m. The meeting reconvened at 8:05 p.m. with the same six Board members present. Steve Park. Accountant for Young's Auto Inc . was sworn in for testimony. Mr. Park testified that Mr. Kim has been in the auto repair business for thirteen years. He explained that the property was vacant for a period of time. Mr. Forington purchased the property, and then sold it to Hr. Kim in 1992. He stated Mr. Kim purchased the property assuming the B-3 rezoning would be approved by City Council which would perm i t him to operate his auto businesses on the entire property. Mr. Park acknowledged that Mr. Kim was aware that the rear half of the property was zoned for residential use. R-2-C, but had full confidence that the entire property would change by the proposed B-3 rezoning . 3 Mr. Park interpreted the following reply from Mr. Kim on the five conditions for granting a use variance: #1.) Mr. Park explained that Mr. Kim has been in the auto repair business for a number of years. That when Mr. Kim investigated the subject property he was told by the current owner. Mr. Forington , that auto repair work had been operated on the property for a number of years. Mr. Kim assumed he would be able to conduct his business on the entire property because he was confident the rezoning would be passed. #2 & #3.) Mr. Park stated the subject property is a good use for Young's Auto Inc. business, adding that having an auto body shop operate from the subject property was compatible with the other auto-related businesses in the area. #4.) Mr. Park stated that Mr. Kim believes his business would not have an impact on the traffic, because an auto repair business usually requires that the vehicle(s) be on the premises for a several days while being repaired, and that the effect of traffic from his shop is minimal. #5.) Mr. Park stated that Mr. Kim was offered a discount on purchasing •• the property. He purchased it in good faith. complete assurance, that the • City Council would pass the B-3 rezoning, thus allowing him to conduct his auto repair business on the entire property. Mr . Park concluded that Mr. Kim would like to combine both businesses at the same location. utilizing the entire property. Board Member Christman questioned if they had considered consolidating at the Sheridan location. Mr. Tanguma answered the question. He explained that Mr. Kim does not have enough room for both businesses at the Sheridan location. He further explained that if he had enough space he (Mr. Kim) would not have purchased the building/property at 2280 West Evans Avenue. Mr. Tanguma concluded that it is expensive paying rent for the two locations. The Chairman asked Mr. Tanguma if the applicant was aware that if the variance was granted, Mr. Kim would still have to meet all the building and fire codes applicable to installing the paint booth. Mr. Tanguma responded stating that Mr. Kim was aware of the necessity for complying with the codes. 4 • •• • • Alice Kim. owner of Young's Auto Inc. was sworn in for testimony. Mrs. Kim stated that when they purchased the property they were aware that auto body work was not permitted, but were informed that the City had proposed a 8·3 zone district rezoning along Evans and that the rezoning would permit them to conduct their auto body business. Mrs. Kim focused on the five points for granting a use variance. She stated that she did not believe their business would be detrimental to the neighborhood. that the business would not increase traffic to the area. and that they purchased the property believing that the rezoning would be passed by the City Council. Mrs. Kim concluded that it is a hardship for them to pay $1500 plus utilities for two locations. She related that they have made substantial improvements on the property by cleaning-up the grounds, and adding a driveway. Steve Park approached the podium. He stated he would like to summarize for the Board . He stated that after Mr. Kim purchased the property he operated a used car sales business and did limited mechanical work on those cars sold from the front part of the property on West Evans. He explained Mr. Kim initially had an auto parts retail business but it was not profitable . Mr. Kim believed the rezoning would pass. they purchased the property, and currently have spent over $10,000 remodeling the building and property. Mr. Park concluded that consolidating the two businesses and offering both auto body repair and auto mechanical repair, is good for the customer and good for business. Board Member Clayton asked what kind of operation is currently operating at the front of the property. Steve Park explained that used car sales and minor mechanical repairs. The Chairman directed to the audience that he had a list of those wishing to testify in favor of the request. and asked that those speaking to limited their testimony and to be brief. Gary Chavez. Hope Mechanical Company 3943 South Lipan Street was sworn in for testimony. Mr . Chavez stated he has been acquainted with Mr. Kim for over ten years. Mr. Chavez discussed his experience with the auto body business. He explained he had worked with his father. who started Sam's Automotive Reconditioning Service in the late sixties, and that his uncle owns Burt Chevrolet and Burt Nissan . 5 He responded to a concern expressed from one of the Board members about • ' the proposed placement for the paint booth next to a residential neighborhood. He rep l i ed that the paint booth at Sam· s Automotive is directly parallel to a residential neighborhood. He further commented on the paint booth stating that the proposed paint booth will actually clean the air, and not be detrimental to the environment. Mr. Chavez cl aimed that the hi story of the subject property to his knowledge is that auto body repair has been operating from the property since 1962. Mr. Chavez stated that when the former owner of the property, Robert Kurtz. owned the property he had 4 x 4 Auto Sales, a body shop, and a paint shop. Mr. Chavez attested to Mr. Kim's honesty alleging that Mr. Kim purchased the property in good faith so that he could operate his auto body business there because previous owners had operated the identical type of business. Mr. Chavez concluded that in his opinion Mr. Kim would be an asset to the City of Englewood, adding that Mr. Kim has improved the property, that the use variance request would be the best use for the subject property, and that the business would benefit the neighborhood. Arthur G. Davis, Dwaynes Quality Automotive Service & Repair was sworn in for testimony. Mr. Davis stated he owns the property west of the subject property. Mr. Davis explained the history of the property, • stating that the building was built for an OK Tire business, and that the back of the property was used by stock car owners to paint their cars for Lakeside, and Englewood Speedway. Mr. Davis maintained that in his opinion the criteria necessary for granting the request was met, because in his thirty years experience with the subject property, it has always been used for auto body and/or auto repair. Mr. Davis stated an auto business is the only use for the property, concluding that Young's Auto Inc. is an asset to the area. Mr. Davis concluded that an auto business is the only business that could operate and be profitable. He stated he has discussed uses with Arapahoe County and that the uses are limited due to the area and the zoning. He revealed that Arapahoe County has devalued his property from $60,000 to $2,000 because it is a difficult property to sell due to the limited uses. Bill Forington. former owner of 2280 West Evans Avenue was sworn in for testimony. Mr. Forington stated he purchased the Kurtz's property, and clean it up before selling it to Mr. Kim. He added that he was aware of the rezoning study for the Evans Corridor. He concluded that in his opinion the back property zoned for residential use would not be a real i st i c use. and that the subject property has never been used for anything but an auto operation. 6 • • • Don Forington, owner of Forington Auto Service, 2120 West Evans Avenue was sworn in for testimony. Mr. Forington stated the subject property has been used for auto repair for over thirty years which is the best use for the property. Mr. Forington stated that the Evans Corridor is comprised of auto businesses and that Mr. Kim's business would be compatible with the existing auto businesses in the area. Charles Anderson, Manager of Texaco 2200 West Evans Avenue was sworn in for testimony. Mr. Anderson stated the station does not operate twenty-four hours because of the high crime and gang-related activities in the area. He stated that he was present at the meeting to present his view that having Young's Auto Inc. next door was an asset. but to have the property vacant would be detrimental to the area and his business. Edward Valenzuela 265 South Julian was sworn in for testimony. Mr. Valenzuela stated he has known Mr. Kim for over three years and that he was present to state Mr. Kim was a good auto body man, dependable, and that in his opinion having him in the area would be an asset. Bart Tomon . employee at Young's Auto Inc. was sworn in for testimony. Mr. Tomon discussed the request stating that the Kim's have improved the property, that they are honest, hard working people. and that they are an asset to Englewood. There were no persons present who wished to testify in opposition to the request. The Chairman closed the Public Hearing, and incorporated the staff report into the record. BOARD MEMBER SEYMOUR MOVED THAT FOR CASE #11-94, THE APPLICANTS, MR. AND MRS. KIM. 2280 WEST EVANS AVENUE, BE GRANTED A USE VARIANCE FROM SECTION 16·4·12:E,2. CONDITIONAL USE. TO PERMIT BODY AND FENDER REPAIR, AND COLLISION REPAIR AND PAINTING, IN CONJUNCTION WITH A MOTOR VEHICLE REPAIR BUSINESS. Board Member Clayton seconded the motion. Discussion ensued. The Chairman asked City staff to clarify several areas of confusion and why the applicants would have to appear before the Planning and Zoning Commission (P & Z). and the consideration of the use variance by the Board . 7 Dan Brotzman, Assistant City Attorney , stated that the Conditional Use would be to allow for the operation of a motor vehicle repair in the B·2 Zone District and the Public Hearing would be conducted by P & Z. Hr. Brotzman explained that the request is for a Use Variance to operate an auto body repair business including painting , which is not a permitted use in the B·2 Zone district. Harold Stitt. Planning Administrator explained that the Use Variance request under consideration for the Board is to allow general auto body repair. He stated that currently auto body repair is allowed only on the cars sold on the premises by the used car sales business. The Use Variance would allow Young's Auto to have a repair facility be open to the general public. Mr. Stitt discussed Section 16·4 ·12:E,2. of the B·2 Business Zone District explaining that Conditional Uses shall be reviewed by the Planning and Zoning Commission for a "motor vehicle repair business, not including body or fender work. dismantling, or collision repair ... ". He concluded. therefore. if the Use Variance is granted by the Board it would be carried to P & Z for their approval of a motor vehicle repair business to operate, to the public. and to include auto body repair and painting . Discussion ensued. Board Member Cohn asked what happens if the Board grants the variance and the Planning and Zoning Commission does not grant the Conditional Use. Harold Stitt, Planning Administrator responded that an option to be considered by the Board would be re-phasing the motion contingent upon Conditional Use by the Planning Commission . Auto body rep a i r would be a 11 owed. but motor veh i c 1 e rep a i r wou l d be limited only to those cars sold on the premises. Chairman Waldman asked if the Board grants a Use Variance would it supersede the Conditional Use from P & Z. Harold Stitt. Planning Administrator responded that if the Use Variance is granted, then they can operate whether or not the Planning Commission approves their Conditional Use . Board Member Clayton asked Hr. Stitt to clarify the reason for going to the Planning and Zoning Commission. 8 •• • • ,. • • Harold Stitt. Planning Administrator responded that the Board· s consideration is to prove that the subject property cannot be used for any purpose other than as an auto body repair shop. He reiterated that an auto body repair shop is a prohibited use in the B·2 zone district, and the variance would allow for Young's Auto Inc. to operate as an auto body repair shop. He concluded that it is not a variance from the Permitted Principal Uses. it would be a variance from the Conditional Use as stated in the B-2 Business District section. Mr. Clayton questioned why, if they grant a Use Variance. would it not take place of the Conditional Use. Dan Brotzman, Assistant City Attorney answered Mr. Clayton, stating that is exactly what will take place. He continued that the variance would allow a use, that P & Z is not allowed to approve. Mr. Brotzman amplified on the issues of auto body repair and motor vehicle repair. stating that the variance would allow for the auto body repair, but not for motor vehicle repair, and that Planning and Zoning Commission has to have a hearing to allow for a motor vehicle repair business to operate. unless they are only doing motor vehicle repair on cars sold on the premises. Discussion ensued. BOARD MEMBER COHN MOVED THAT THE MOTION BE AMENDED TO READ: THAT FOR CASE #11-94. THE APPLICANTS. MR. AND MRS. KIM. 2280 WEST EVANS AVENUE, BE GRANTED A USE VARIANCE FROM SECTION 16-4-12:E,2. CONDITIONAL USE. TO PERMIT BODY AND FENDER REPAIR, COLLISION REPAIR , AND PAINTING. Board Member Seymour agreed to the amended motion. Board Member Clayton agreed to the amended motion. and seconded it. Discussion ensued. The Chairman clarified the amended motion stating that it allows the owners to do auto body work. and that they would be allowed to continue the auto body repair. whether or not the motor vehicle repair is granted by the Planning and Zoning Commission. The members locked in their votes and gave their findings as follows: 9 Board Member Welker voted "yes" stating he is of the opinion that the request meets all five points: #1.) that the property could unlikely be used for any other purpose. #2.) that the use is appropriate with the Comprehensive Plan as it states one of the goals is "to create a balance of commercial uses to reflect the character of the neighborhood in which the corridor is located," adding that seems to be met as the area has a strong automotive presence, #3.) the business is compatible with other businesses in the neighborhood, #4.) that it is unlikely the auto body shop will create any traffic problems, #5.) that the hardship was not self-imposed as it was the City that recommended the rezoning take place. Board Member Seymour voted "yes", concurring with the conditions stated by Mr. Welker. Board Member Cohn voted "yes" stating she agreed with points addressed by Mr. Welker. Board Member Clayton voted "yes" stating that he also agreed with the conditions stated by Mr . Welker, adding that he believes Young's Auto Inc. will be a credit to the community. • Board Member Christman voted "yes" concurring with other members statements. Chairman Waldman voted "yes" stating the testimony reflected that all the conditions were met for granting the Use Variance. He added that the five conditions for granting a variance were also met: that the property is • exceptional, it observes the spirit of the Ordinance, that it will not adversely affect the neighborhood, that it will not substantially impair the appropriate use of adjacent property, and that it is the minimum variance that will afford relief for the applicant. When the votes were displayed. all six members had voted in favor of the request . The Chairman moved for a recess at 9:55 p.m. The meeting was reconvened at 10:05 p.m. Roll Call was taken. Due to a conflict of interest related to the next case. Ms. Cohn stepped down from the dias . The Chairman announced with five members present, four affirmative votes would be required to grant or deny a variance. PUBLIC HEARING #12-94: 603 East Cornell Avenue The Chairman set forth the procedure for conduct of the Hearing, stating the staff will present the case. and the applicant, proponents and opponents would then be heard. The Chairman opened the Public Hearing stating he had proof of publication and posting and asked the staff to identify the request. 10 • •• • • Harold Stitt, Planning Administrator was sworn in for testimony . Mr. Stitt stated the applicant is requesting a variance from Section 16-4-17:C,l. Fences and Retaining Walls, to construct a fence in the front yard that exceeds the maximum permitted height of three feet six inches (3 '6"). The Chairman asked the applicant to come forward for testimony. Neil Neumann 603 East Cornell Avenue was sworn in for testimony. Mr. Neumann entered into the record a map to assist in illustrating his property, the placement of landscaping, the city ditch , and the fence in question. Mr. Neumann pointed out that there is a six foot high chain link fence placed on the north property which was installed by the City, a five foot fence located on the south side of the City Ditch, and the six foot fence in the front of the property. Mr. Neumann explained that his property backs up to the Bates-Logan Park and that the City Ditch crosses through the back of his property. He stated he erected the six foot fence in the front of the property because of two problems: trespassing and liability . He explained his concern stating there have been continuous problems with people at the park and that last summer there was a knifing incident . Mr. Neumann stated that there have been countless instances of children/teenagers entering their property from the front on Cornell Avenue in order to gain access to the Bates-Logan Park. He stated the liability is that the access to the park necessitates the crossing of the City Ditch which could result in an injury or drowning. Mr . Neumann entered into t he record photographs to assist in illustrating the fence in question . He confirmed that it is six feet. He stated he called the City to inquire about a permit, and was told that if he was replacing a fence he did not need a permit. He stated he did not received the Stop Work Order issued by Code Enforcement Officer Ozburn in 1992 to obtain a permit for the fence. Mr . Neumann entered into the record statements from three neighbors stating they had not objection to the fence. Mr. Neumann explained that the fence does not obstruct the view of pedestrians on the sidewalk, and it does not adversely affect the adjacent property because the property at 555 East Cornell Avenue has a six foot fence . Mr . Neumann concluded his testimony stating that keeping the six fence would secure the public safety and welfare, and will afford relief with the least modification . 11 There were no other persons present who wished to testify relative to this • · request. The Chairman asked if the staff had anything to add. Harold Stitt, Planning Administrator approached the podium. He explained that he had contact with the residence at 555 East Corne 11 Avenue. He stated that he received a statement verifying that the six foot fence had been in existence for a significant number of years. since the 1920's, and therefore it was grandfathered in. Mr. Stitt added that just like any nonconforming situation, it could be maintained, but not expanded or replaced. Mr. Stitt added that if Mr. Neumann had replaced the existing fence at the identical height he would not have needed a permit, but he expanded the use by extending the fence to six feet. The Chairman incorporated the Staff Report, various exhibits and photographs into the record and closed the Public Hearing. BOARD MEMBER SEYMOUR MOVED THAT IN CASE #12-94, THE APPLICANT, NEIL NEUMANN, 603 EAST CORNELL AVENUE, BE GRANTED A VARIANCE FROM THE COMPREHENSIVE ZONING ORDINANCE, SECTION 16-4-17:C.1. FENCES AND RETAINING WALLS, 'TO PERMIT A FENCE IN THE FRONT YARD THAT EXCEEDS THE MAXIMUM PERMITTED HEIGHT OF THREE FEET SIX INCHES (3'6") BY TWO FEET SIX INCHES (2'6"). Board Member Clayton seconded the motion. Discussion ensued. The members locked in their votes, and gave their findings as follows: Board Member Clayton voted "yes" stating in his opinion the property is unique, that it will not impair the neighborhood, and that it is the minimum variance. Board Member Christman voted "yes" that the request meets the conditions. Board Member Seymour voted "yes" stating that in his opinion the placement of the fence is reasonable and that there is no harm to the neighborhood. Board Member Welker voted "yes" concurring. Chairman Waldman voted "no" stating the applicant should have applied for the appropriate permit. that in his opinion the request does not meet the necessary conditions such as being exceptional or observing the spirit of the Ordinance. When the votes were displayed. four members voted in favor of the variance request, with one member in opposition. • The Chairman directed to the applicant that he must apply for a permit with the • Building and Safety Division. 12 • • STAFF ADVISffi'S CHOICE: Mr. Stitt explained that Case #8-94 had withdrawn their case, and that Case #10- 94 was in the process of resolution. CITY ATTORNEY'S CHOICE: None. BOARD MEMBERS: Discussion ensued concerning the problem of having a quorum when members are absent, or having to step down from the dais due to a conflict of interest. Mr. Stitt stated that the issue of having an alternate would require approval by City Council. With no further business to come before the Board, the meeting adjourned at 11:03 p.m. Respectfully yours . Cathie Mahon, Recording Secretary 13