HomeMy WebLinkAbout1995-05-10 BAA MINUTES. '
• MINUTES
BOARD OF ADJUSTMENT AND APPEALS
ENGLEWOOD.COLORADO
MAY 10, 1995
The regular meeting of the Englewood Board of Adjustment and Appeals was called to order by
Chairman Clayton at 7:35 p.m.
Members present:
Members absent:
Also present:
Seymour, Christman, Smith, Welker, Barber and Clayton.
O'Brien.
Dan Brotzman, City Attorney
Harold Stitt, Planning Administrator
The Chairman stated that with a quorum of six 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 Home Rule Charter.
APPROVAL OF MINUTES:
• . Mr. Seymour moved that the Minutes of April 12, 1995 be approved as written.
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Mr. Welker seconded the motion.
The vote was called; motion carried unanimously .
PUBLIC H E ARING -CASE #4-95.
2700 West Union Avenue
Chairman Clayton set forth the parameters for conduct of the Hearing. He stated that anyone
aggrieved by a decision rendered by the Board may appeal that decision to a court of record;
however , such appeal must be made within 30 days of the Board's decision.
Mr. Clayton stated he had proof of publication. He stated the procedure for the meeting would
be that the appeal would be presented by city staff, and that the appellant and those that wish to
speak would follow for testimony.
Mr. Stitt,
Planning Administrator,
was sworn in for testimony . Mr. Stitt explained the appeal is for relief from the
Correction Notice issued by an inspector of the Building and Safety Division in reference
to the 1994 Uniform Building Code, Section 310.4, Egress Windows .
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Charles Petty, •
Building and Safety Division Inspector,
was sworn in for testimony. Mr. Petty discussed the events leading up to the Correction
Notice. When he visited the site, work had been done: siding, and roof decking. At that
time it was determined the house was owned by Matt Robl, a licensed roofing contractor.
Mr. Petty explained that he did not issue a stop work order because Mr. Robl was a local
property owner and contractor, and he agreed to obtain the appropriate permits.
Mr. Petty stated he reviewed and approved a building permit for the replacement of
fourteen (14) windows. He testified on the "remarks" section of the building permit he
wrote , any window replaced in a bedroom must be installed according code, Section
310.4 , Emergency Egress Windows, of the 1994 UBC.
Discussion ensued on whether the windows were a replacement or a repair.
Board Member Smith questioned why the work was not a repair, referencing Section 219 of the
UBC: "Repair is the reconstruction ... of an existing building for the purpose of its maintenance."
Mr. Petty responded the entire window units were replaced, therefore , it was not a repair.
He explained the work would be a repair if glass is missing , or handles. He stated once
the whole window is removed, the code for Egress Windows in a bedroom goes into •
effect. He stated it was his understanding that there are two bedrooms in the house, and
those windows in particular are required to meet Egress Window codes. He discussed the
requirements for Egress Windows, stating that the maximum sill height cannot exceed 44
inches , that the minimum net clear openable area needs to be 5.7 square feet, and the
openable height not less than 24 inches.
Board Member Barber questioned the sequence of time between the issuing of the permit and the
Correc ti on Notice.
Mr. Petty explained that M & R Roofing applied for a building permit on March 7, 1995,
it was issued on March 8th, and the Correction Notice was written on March 14, 1995 .
He reiterated that he wrote the Egress Windows for bedrooms must be installed according
to code under the remarks section on the building permit issued March 8, 1995.
(At 7 :55 p.m. Ms. O'Brien entered Council Chambers).
The Chairman asked the appellant to come forward for testimony.
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M & R Roofing,
2700 West Union Avenue
was sworn in for testimony. Mr. Robl testified he knew that the house was in disrepair
when he purchased the property in 1994. He stated when he called the City to inquire
about renovating the house, he spoke to Joyce Parsons, (Neighborhood Services) who
informed him that because the house was a historical marker, built in the 1920's, he could
not make any structural changes to the house but could do cosmetic work on it.
Mr. Robl submitted for the record two photographs: one of the house before working on
it, and the second photo of the re-roofing, new gutters, and windows. He discussed
replacement of the windows stating he put in new window units because the old ones
were unopenable due to layers of paint. He stated that the new windows cost about $200
but to conform to the Egress Window regulations would cost up to $1,000 because he
would have to tear out some of the new siding and interior drywall, and put in new
framing around the window. He concluded that the roofing, gutters, and windows
totalled about $2,000 .
Mr. Robl answered questions from the Board.
He stated that he was a licensed roofing contractor, and was not familiar with Egress
Window codes . He testified he does not occupy the house, but rents it to this secretary .
He acknowledged doing the work without getting building permits .
The Chairman acknowledged someone in the audience requesting to testify.
Ralph Sokol,
S & H Improvements,
was sworn in for testimony. He stated he was representing parties in another case but
wanted to comment on the present case. He stated he had never heard of replacing
windows and requiring them to be brought up to current code.
City staff continued their testimony.
Becky Baker,
Chief Building Official,
was sworn in for testimony. Ms. Baker referenced Section 3403.2:
"Additions, alterations or repairs may be made to any building or structure without
requiring the existing building or structure to comply with the requirements of this code,
provided the addition or repair conforms to that required for a new building or
structure .
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She continued her testimony discussing a survey that contacted twenty (20) cities and of
that number, sixteen required current codes for egress windows when windows are •
replaced . She explained that it is a life-safety issue due to most fire deaths occurring in
a residential building is a result of unopenable windows, and improper escape and/or
rescue .
Ms. Baker stated the window requirements are based on extensive testing by the San
Diego Building and Fire Departments. Their findings determined what proper height and
width of window openings should be to provide adequate rescue and escape should a fire
occur. Their determination was that a minimum of 20 inches for the width of the window
was based on an opening large enough to place a ladder and to allow admittance of a
firefighter with full rescue equipment. The minimum 24 inch height dimension was based
upon the minimum necessary to admit a firefighter with full rescue equipment.
Ms. Baker concluded that once they (the Building and Safety Division) are aware of
windows being replaced , it is critical that they be done according to the current
requirements as outlined in the UBC.
. Th e Chairman incorporated the staff report and exhibits into the record and closed the public
hearing.
Mr. Seymour moved:
Ms . Christman seconded:
THAT FOR CASE #4-95 , MA TT ROBL, OWNER OF 2700 WEST UNION A VENUE ,
BE GRANTED AN APPEAL FROM THE CORRECTION NOTICE ISSUED BY A
BUILDING AND SAFETY INSPECTOR, SECTION 310.4, EGRESS WINDOWS, OF
THE 1994 UNIFORM BUILDING CODE.
Discussion ensued.
The members locked in their votes and gave their findings of fact.
Mr. Welker voted "no" stating he was upholding the Correction Notice from the Building
Department; that the contractor had the opportunity to comply when it was noted on the permit
that the windows must conform to current codes; and that Section 3403.2 of the UBC requires
that when alterations are made to an existing building, they must comply with current codes to
allow the existing structure to be firesafe .
Ms . O 'Brien concurred with the statements made by Mr. Welker.
Mr. Smith voted "yes" stating in his opinion the work was a repair and should not have had to
conform to current codes, and should not have required a building permit.
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Ms . Christman voted "no" stating that she concurred with the reasons previously stated by Mr.
Welker .
Mr. Seymour voted "no" stating he did not care what it cost to bring the windows up to code,
if the issue is one of safety.
Mr. Barber voted "no" stating the contractor has the responsibility to know the codes and was
obligated to do the construction work according to building codes.
Chairman Clayton also voted "no" stating that in his opinion the contractor was obligated to do
the work as · specified on the building permit.
When the votes were displayed, one member voted in the affirmative, with six members voting
in opposition.
Th e , Chairman announced the request for an appeal was denied with a 1-6 vote and that the
applicant must comply with the Correction Notice .
PUBLIC HEARING -CASE #5-95:
431 East Girard Avenue
Th e Chairman opened the Public Hearing stating he had proof of publication and posting .
Mr. Stitt,
Planning Administrator ,
stated the applicant, Jacalyn Neuhaus , was requesting a variance from the Comprehensive
Zoning Ordinance , Section l 6-4-4 :M ,5,k,(3), Home Occupations, to permit manicuring as
a hom e occupation.
Mr. Stitt informed the Board that the applicant must meet all five conditions for granting
a varianc e as stated in Section 16-2-8. In addition, the applicant must meet the five
condition s for granting a Use Variance.
Mr. Brotzman ,
City Attorney ,
discussed the circumstances with the case under consideration. He read into the record
Section 16 -2-8 ,4. of the Municipal Code :
"In Sectio n R-1-A, R-1-B, and R-1-C, no variance for a use that was created or changed
after May 1, 1985 , or that became nonconforming after May 1, 1985, shall be approved
without review by the Board and the City Council. First review shall be by the Board.
If approved by the Board , the variance shall be referred · to the City Council. The City
Council shall review the record and a written decision of the Board to determine if the
varianc e complies with the requirements of this ordinance. No Hearing shall be held
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before City Council. Should the City Council determine the variance does not comply
with this Ordinance, the variance shall then be denied.
Discussion ensued.
The Chairman asked the applicant to come forward for testimony.
Jacalyn Neuhaus,
431 East Girard A venue,
was sworn in for testimony. Ms. Neuhaus discussed her current home occupation as a
day care and that she is licensed by the State to care for eight children. She explained
she has three children of her own, is a single parent, and financially responsible for caring
for her three children.
The Chairman directed the applicant to address the conditions necessary for granting a variance.
Ms. Neuhaus explained she has an exceptional piece of property because she is in a
residential neighborhood located near the Swedish .Medical facility. She explained she
had a concrete pad placed to the east side of her property to alleviate any parking
problems in the neighborhood and to provide parking for her patrons. Ms. Neuhaus
submitted for the record a neighbor stating they did not object to her proposed home
occupation.
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Ms . Neuhaus concluded that in her opinion she should be granted her request because •
there would be less traffic with manicuring than her current day care home occupation .
Mr. Stitt ,
Planning Administrator,
explained some of the issues of a "use" variance . He stated that a typical use variance
is for "permitted principal uses" explaining that if the property cannot be used for any
purpose permitted within the zone district, then a use variance may be granted. However,
in the case under consideration , it is not a permitted principal use that is the subject of
the request but rather a secondary use: home occupations.
The Chairman clarified the issue stating that the Municipal Code prohibits manicuring in the zone
district that the applicant resides in; therefore, the variance is for a use other than what is
permitted .
Jim Zadie,
3365 South Pennsylvania Street,
was sworn in for testimony. Mr. Zadie stated his biggest concern is adding to the current
parking and traffic problems on Pennsylvania, Girard, and Pearl, because of the Swedish
Medical Center facility across the street. Mr. Zadie concluded that he was concerned
about an overcrowded situation that could become more concentrated.
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Discussion ensued with questions about the variance applying to the person or with the property .
Dan Brotzman,
City Attorney,
clarified that the variance would run with the property.
Mr. Stitt,
Planning Administrator,
entered into the record a letter from Brian and Debbie Edie, residents of the neighborhood
at 3331 South Pennsylvania Street. He read their list of concerns regarding the case:
parking and traffic problems, mix of a business in a residential area, and how the business
might affect the resale of this property.
Discussion ensued after Ms. Newhaus stating she should be granted her variance request since
. the Board granted a beauty shop south of her.
(The secretary informed the Board that the case in question was 3400 South Downing from
1992).
The Chairman called for a recess at 8:55 p.m. to allow City staff time to review the case. The
meeting reconvened with the same members present at 9:05 p.m. ·
Mr. Clayton explained that the Board considers each case individually on its own merit and the
fact that a beauty shop was granted a variance, does not warrant that the present case should be
granted a variance.
Mr. Stitt,
Planning Administrator ,
discussed the variance granted to 3400 South Downing. He clarified that the zone district
are different: the beauty shop operating as a home occupation from 3400 South Downing
is located in a R-3 zone district. It did not have to go before City Council for approval.
The case under consideration is located in an R-1-C zone district and is required to be
ref erred to City Council.
Discussion ensued.
The Board requested that staff discuss the issue of cosmetology with regard to home occupations.
Mr. Stitt,
Planning Administrator ,
read the definition from Websters dictionary: "Cosmetology: the treatment of hair, skin,
and nails ."
Mr. Stitt stated the current prohibition of barbers, hairdressers, cosmetologists, and
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beauticians to have a Home Occupation in Englewood, is based on the State licensing
regulations which did not permit this type of business to operate from a residence. The •
State amended their licensing regulations to allow these businesses to operate from their
homes. Currently, the Planning and Zoning Commission (of Englewood) has proposed
amendments to the home occupations regulations that would remove that restriction for
barbers, hairdressers, cosmetologists to conduct their business in their home.
Discussion ensued.
With no further discussion or testimony to be heard, the Chairman closed the public hearing,
incorporating the staff report and exhibits.
Mr. Seymour moved:
Mr. Welker seconded:
THAT FOR CASE #5-95, JACALYN NEUHAUS, PROPERTY OWNER OF 431 EAST
GIRARD A VENUE, BE GRANTED A VARIANCE FROM THE COMPREHENSIVE
ZONING ORDINANCE, SECTION 16-4-4:M,5,k(3), HOME OCCUPATIONS, TO
PERMIT MANICURING AS A HOME OCCUPATION.
The Chairman asked the members to lock in their votes and give their findings of fact:
Mr. Smith voted "yes" stating that the proposed use is compatible with the uses in the •
neighborhood; that the proposed use is the least traffic-intensive; that the use is reasonable for
the property; that the use will not be detrimental to other uses because the subject property is
surrounded by the business zone districts; and that the proposed use will not have an adverse
affect on the neighborhood.
Ms. Christman concurred with the same reasons stated by Mr. Smith.
Mr. Barber concurred with Mr. Smith's statements.
Mr. Welker concurred.
Ms. O'Brien concurred.
Mr. Seymour concurred stating that the manicuring home occupation would not have an impact
on the neighborhood.
Chairman Clayton stated he agreed with the statements from Mr. Smith.
When the votes were displayed, the Chairman announced the variance request granted with a vote
of 7-0.
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PUBLIC HEARING • CASE #6-95:
3988 South Grant Street
The Chairman opened the Public Hearing stating he had proof of publication and posting.
Mr. Stitt,
Planning Administrator,
identified the variance request. He explained the applicant is requesting a variance from
the Comprehensive Zoning Ordinance, Section 16-4-4:H, Minimum Front Yard Setback,
to encroach 9 feet into the required 25 foot front yard setback, for the purpose of
constructing an enclosed porch.
Mr. Stitt added that the applicant's property is one of two substandard lots in the block,
41.67 feet wide by 125 feet deep. The narrow lot width meets the first findings upon
which a variance is granted , but taken by itself the narrow lot does not affect the
Applicant's variance request. When coupled with the excess land between the front
property line and the sidewalk, the result is a significant reduction in the impact the
encroachment will have on the neighborhood .
The Chairman asked the applicant to come forward for testimony.
Mr. Sokol ,
S & H Improvement
testified on behalf of the Stookesberry's as their contractor. Mr. Sokol stated the proposal
is to remove the existing small porch from the front of the house and replace it with an
enclosed porch approximately 17 feet wide, by 9 feet. He stated the porch would line up
with the house , but would project into the front yard setback by 9 feet.
Mr. Sokol submitted for the record four statements from neighbors stating they were in
favor of the variance request.
Mr. Sokol concluded that the proposed porch would afford relief for his customer, and
would enhance the neighborhood.
Mrs. Mary Stookesberry ,
3988 South Grant Street,
was sworn in for testimony . Mrs. Stookesberry stated their request was for an enclosed
porch to the front of the house which w_ould give them some protection against the sun
in the summer, and protection from snow and ice in the winter. She concluded stating
that they have resided in the house for 9 years, made several improvements such as a
pati o to the back, and that in her opinion the proposed porch would enhance their
property .
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There were no further speakers present for or against the variance request. The Chairman
incorporated the staff report into the record, and closed the Public Hearing.
Mr. Welker moved:
Mr. Smith seconded:
THAT FOR CASE #6-95, FOR MR. AND MRS. STOOKESBERRY, THE PROPERTY
OWNERS OF 3988 SOUTH GRANT STREET, FOR A VARIANCE FROM THE
COMPREHENSIVE ZONING ORDINANCE, SECTION 16-4-4:H, MINIMUM FRONT
YARD SETBACK, TO ENCROACH 9 FEET INTO THE REQUIRED 25 FOOT FRONT
YARD SETBACK FOR THE PURPOSE OF CONSTRUCTING A COVERED PORCH.
Discussion ensued .
The members locked in their votes and gave their findings of fact.
Ms. Christman voted "no" stating the request does not meet the criteria for granting a variance.
Mr. Seymour voted "no" stating that the 9 feet would be a protrusion that no one else in the
neighborhood has, and that the encroachment would be 36% of frnnt yard setback.
Mr. Smith voted "no" stating that the 9 feet is too major an area for the encroachment.
Ms . O'Brien stated she voted "no" for reasons previously stated.
Mr. Barber voted "no" stating he also considered the 9 feet too large an area for the
encroachment.
Chairman Clayton voted "no" stating the request does not meet the criteria for granting a
variance.
When the votes were displayed , the Chairman announced the variance request denied with a 0-7
vote.
PUBLIC HEARING -CASE #7-95:
3066 South Clarkson A venue
Jeff Moening
The Chairman opened the Public Hearing stating he had proof of posting and publication .
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Mr. Stitt,
Planning Administrator,
identified the request. He stated the applicant, Mr. Jeff Moening, is request a variance
from Section 16-4-4:H, Minimum Front Yard Setback, to encroach 5.8 feet into the
required twenty-five foot (25') front yard setback, for the purpose of enclosing an existing
porch .
The Chairman asked the applicant to come forward for testimony.
Jeff Moening ,
3066 South Clarkson Street,
was sworn in for testimony. Mr. Moening discussed the events leading up to his request
for a variance . He explained he knew when he purchased the house that the porch
needed to be repaired . He stated the porch was part of the original house built in 1927.
He stated he was doing some work on the porch when an inspector from the Building
Department stopped and issued a stop work order, advising him to apply for a building
permit before continuing the work. He stated he was informed during the plan review
that the porch encroached into the front yard setback by 5 feet 8 inches.
Mr. Moening addressed the conditions for granting a variance. He stated placement of
the front porch existed when he purchased the house, that it was partially enclosed. Due
to the dilapidated shape of the porch, he was tearing out the old and renovating it. He
stated the property is unique because his front yard is 31 feet; the City owns ten or twelve
feet of the front yard to the sidewalk . He submitted for the record statements from
neighbors in favor of the variance, therefore the new enclosure would not affect the
neighborhood . He stated the variance would not adversely affect the neighborhood as the
new enclosure will be an improvement from the dilapidated shape it was in.
Mr. Moening concluded that the variance will secure public safety and welfare, will not
impair th e property of his neighbors , or the neighborhood, and that replacing the structural
porti on of th e porch will achieve a safer structure.
Th e Chairman cl ose d the public hearing .
Mr. Seymour moved:
Ms . Christman seconded:
THAT FOR CASE #7-95, THAT MR. JEFF MOENING, PROPERTY OWNER OF 3066
SOUTH CLARKSON STREET, BE GRANTED A VARIANCE FROM THE
COMPREHENSIVE ZONING ORDINANCE, SECTION 16-4-4:H, MINIMUM FRONT
YARD SETBACK, TO ENCROACH 5 FEET 8 INCHES INTO THE REQUIRED
TWENTY-FIVE FOOT FRONT YARD SETBACK, FOR THE PURPOSE OF
ENCLOSING AN EXISTING PORCH .
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Discussion ensued.
The members locked in their votes and gave their findings as follows:
Ms . O'Brien stated she voted "yes" because the porch existed when the applicant purchased the
house, there was no objection from any of the neighbors, and that the renovation will improve
the property and be an asset within the neighborhood.
Mr. Barber concurred stating the porch existed and the applicant was upgrading the porch not
adding to the house .
Mr. Welker concurred for reasons already stated.
Mr. Smith voted "yes" because it is a circumstance that exists not one the applicant is creating .
Mr. Seymour voted "yes" concurring with statements made by other members .
Ms . Christman concurred.
Chairman Clayton voted "yes" stating the request meets all the conditions for granting a variance .
. When the votes were displayed, the Chairman announced the variance as granted with a 7-0 vote .
He instructed the applicant to contact the Building and Safety Department.
STAFF ADVISOR'S CHOICE:
Mr. Stitt announced that Mr. Merkel , Director of Community Development, had resigned from
th e City to take a position as Town Manager of Dillon.
CITY ATTORNEY'S CHOICE:
Mr. Brotzman updated the Board on the status of home occupations, informing them that first
reading is sch e duled for the City Council on Monday , June 5th .
BOARD MEMBERS CHOICE:
Mr. Smith made a motion recommending that the Chairman write a letter to City Council
suggesting that they approve the recommendations from the Planning and Zoning Commission
regarding hom e occupations .
Al1 members voiced approval .
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• Discussion ensued on staff reports and information and supporting documentation presented with
each case. A recommendation was made with all members voicing approval, that Chairman
Clayton contact the Manager of Community Services to discuss the Board's concerns regarding
staff reports and their necessary documentation.
With no further business to come before the Board, the meeting was adjourned at 10:25 p.m.
Respectfully submitted,
Cathie Mahon ,
Recording Secretary
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