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HomeMy WebLinkAbout1995-08-13 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS ENGLEWOOD.COLORADO September 13, 1995 The meeting of the Board of Adjustment and Appeals was called to order by Chairman Clayton at 7:35 p.m. Members present: Seymour, Christman, O'Brien, Barber and Clayton. Members absent: Smith. Also present: Dan Brotzman, City Attorney Harold Stitt, Planning Administrator The Chairman called the meeting to order, stating that with five members present, four affirmative votes would be required to grant a variance or an appeal. He stated the Board is authorized to grant a variance by Section 16-2-8 of the Englewood Municipal Code. APPROVAL OF MINUTES: Seymour moved: Barber seconded: That the Minutes of July 12, 1995 be approved as written. AYES: NAYS: Seymour, Barber, and Clayton . None. ABSENT: Smith. ABSTAIN: Christman and O'Brien. Chairman ruled the Minutes approved as written. APPROVAL OF FINDINGS OF FACT: Seymour moved: Barber seconded: That the Findings of Fact for Case #9-95, Budget Transmission, 3201 South Santa Fe Drive, be approved as written. The Chairman offered an amendment. Discussion ensued. The Chairman called for a motion to amend the Findings of Fact. Seymour moved: Barber seconded: That the Findings of Fact be approved as amended. AYES: NAYS: ABSENT: ABSTAIN: Seymour, Barber, and Clayton. None. Smith. Christman and O'Brien. The Chairman ruled the Findings of Fact approved as amended. PUBLIC HEARING -CASE #11-95: 1035 East Dartmouth Avenue Chairman Clayton set forth the parameters for conduct of the Hearing. He stated that anyone aggrieved by a decision 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. The Chairman opened the Public Hearing stating he had proof of publication and posting. He asked staff to identify the request. Harold Stitt, Planning Administrator •• was sworn in for testimony. He stated that the applicant, Mr. Ashton, 1035 East Dartmouth A venue, is requesting a variance to encroach 3 feet into the required 5 foot • side yard setback and to encroach 4 feet into the required 10 foot rear setback, for the purpose of constructing an attached garage. He added these variances are from the Comer Lot setbacks of the Comprehensive Zoning Ordinance, Section 16-5-13:A,2,b. Minimum Side Yard setback, and Section 16-5-13:A,3,b(l), Rear Yard setback. The Chairman asked the applicant to come forward for testimony. Mr. Michael Ashton, 1035 East Dartmouth A venue, was sworn in for testimony. He stated the location for the proposed garage was the only logical location on his property. He discussed the unique factors concerning his property: the house is located on the far west side of the property, and was built toward the side of a slope, resulting in the east side of the property being recessed. He explained why the east side of the property was not conducive to placing the garage: the mature landscaping, a complete sprinkler system , an existing redwood deck, and an East basement wall that is below a bedroom. He further explained attaching the garage to the east side of the house would require removal of bushes and trees, dismantling the sprinkler system, eliminating the deck, and would cover the entrance to the basement. 2 • •• • • Mr. Ashton discussed issues for justification of the request. He stated traffic visibility would not be affected because the proposed location of the garage is setback from Dartmouth A venue; it would not affect adjacent property due to a six foot fence and a storage shed located on the northern ne ighbors property. He concluded that the request is the least modification that will allow his garage to be built, and the best use of the property. He submitted for the record statements signed by three property owners from the neighborhood stating they had no objection to the variance request. Mr. Ashton explained the garage would be thirty by twenty feet, room for two cars and a storage/workshop area . The garage would be attached to the main house and placed in the northwest corner of his property. He concluded his testimony stating that the variance is necessary in order to better utilize the property, to place the garage in an area that is difficult to maintain, and to house his cars from the weather. He concluded that the variance request would enhance the neighborhood and increase the value of his property. The Board members asked Mr. Stitt to explain the Corner Lot regulations. Mr. Stitt, Planning Administrator, stated Corner Lot regulations differ from those normally applicable in the R-1-C zone district. Corner lots have a street frontage on two sides, a "short street" side and a "long street" side. With the subject property , the short street side is Dartmouth A venue, and the long street side is Corona Street. He further explained that the Corner Lot regulations create a "building envelope" which is a space within the property in which a structure may be built with the intent of providing setback spacing on the short street side. Mr. Stitt stated that the case before the Board is an atypical situation with a corner lot because the house is set on the western part of the lot. He concluded that had the house faced the long street side and been centered on the property, the typical setbacks would apply and there would have been ample room to construct an attached garage, that would comply with the regulations . There were no further speakers present for or against the variance request. The Chairman incorporated the Staff Report , miscellaneous exhibits, and closed the public hearing. Mr. Seymour moved: Ms. Christman seconded: 3 THAT FOR CASE #11-95, MR. MICHAEL ASHTON, 1035 EAST DARTMOUTH •. A VENUE, A VARIAN CE BE GRANTED TO ENCROACH 3 FEET INTO THE REQUIRED 5 FOOT SIDE YARD SETBACK, AND 4 FEET INTO THE REQUIRED 10 FOOT REAR YARD SETBACK, FOR THE PURPOSE OF CONSTRUCTING AN ATTACHED TWO CAR GARAGE. THIS IS A VARIANCE FROM SECTION 16-5- 13:A,2,b. MINIMUM SIDE YARD SETBACK, AND SECTION 16-5-13:A,3,b (1). MINIMUM REAR YARD SETBACK, OF THE COMPREHENSIVE ZONING ORDINANCE. With no further discussion the Chairman closed the public hearing and asked the members to lock in their votes. Members polled: Mr. Barber voted yes stating that the request meets the conditions. He specified that it is an exceptional property due to the corner lot and placement of the house, that granting the variance will observe the spirit of the Ordinance, that it will not adversely affect the adjacent property as reflected by the three neighbors statements in favor of the request, that it will not impair development of the adjacent property because the garage would abut a fence and shed, and that it is the minimum variance that would afford relief to the applicant. Ms. O'Brien voted yes concurring with Mr. Barber's statements. Ms. Christman voted yes also concurring. Mr. Seymour voted yes stating the proposal appears the only solution for the applicant. Chairman Clayton voted yes stating the conditions for granting a variance have been met, and the proposed garage will improve the property and neighborhood. When the votes were displayed, all five members present voted in favor of the variance request. The Chairman announced the decision 5-0, and directed to the applicant to contact the Building Department for the appropriate permits. CASE NO. 12-95; KDC Architects for the Englenook 3470 South Broadway Mr. Blumenthal, Manager of Community Services, approached the podium. He informed the Board that he received a phone call before the meeting and would like to postpone (continue) the hearing until other options can be considered. Mr. Blumenthal asked the Board for an additional 30 days to continue work with the owner of the Englenook and their architects . 4 • • .• The Chairman opened Case No. 12-95. • • Seymour moved; Barber seconded: THAT FOR CASE #12-95, KDC ARCHITECTS FOR THE ENGLENOOK, 3470 SOUTH BROADWAY, BE CONTINUED FOR THIRTY DAYS (30) UNTIL THE BOARD OF ADJUSTMENT AND APPEALS MEETING ON OCTOBER 11, 1995. Upon a voice vote, all members present were in favor of the motion. The Chairman announced the motion as carried and announced that Case #12-95 would be heard at the October 11, 1995 meeting. PUBLIC HEARING NO. 13-95: 3529 South Elati Street Clar Hyman, applicant Chairman Clayton opened the public hearing stating he had proof of publication. Mr. Clayton set forth the parameters for conduct of the Hearing. He explained the procedure for the meeting would be that the appeal would be presented first by City Staff, and the appellant and those that wish to speak would then have the opportunity to be heard . The Chairman stated if the appellant is aggrieved by the Board's decision they have the right to have the decision reviewed by the District Court of Arapahoe County, and must filed within thirty days from the date of the Public Hearing. Mr. Blumenthal, Manager of Community Services, was sworn in for testimony. He stated the appeal is based on a variety of violations . from Title 9, Housing Regulations, of the Englewood Municipal Code. He directed the Board to their packet stating they should have a copy of Title 9 with the code violations highlighted. He offered to discuss each item with an explanation of their findings in reference to the property. He stated photographs and notices of violation have been logged over several years, and that the property has been an ongoing problem for Code Enforcement. Dan Brotzman, City Attorney, clarified for the Board, the area of consideration is an appeal from the Chief Building Official's Order to comply with the City of Englewood's Housing Regulations, Section 8-1-5:H. and the 1994 Uniform Building Code , including but not limited to Sections 102 and 3402 . 5 Mr. Blumenthal, Manager of Community Services, •. continued his testimony stating issues of consideration were code violations from Title 9 of the Englewood Municipal Code, and Section 102 and 3402 of the U.B.C. He explained Section 102 pertains to "unsafe buildings or structures" and read the section into the public record. Additionally Chapter 34, Existing Structures" Section 3402: Maintenance, was referenced and read into the record. Mr. Clayton questioned Mr. Blumenthal why specific items were not listed in the Chief Building Official's Order. He further questioned why a list of letters and notices of violation issued to the property owner was not included in the Board's packet. Ms. O'Brien questioned why a copy of Section 8-1-5:H. of the Englewood Municipal Code, referenced in the Order was not included in the packet. The Chairman asked that Mr. Blumenthal to provide copies of that section and called a recess at 8:05 p.m. The meeting resumed at 8:20 p.m. with all five members present. He announced with five members present, four affirmative votes would be necessary to grant a variance or an appeal. The Chairman clarified that the issue under consideration was to determine if the Order was appropriate based on the facts and the law. Additionally he requested that Mr. Blumenthal provide the Board with documentation applicable to the authority of the City requiring Mr. Clar to abide by the Order. • Mr. Blumenthal, Manager of Community Services, continued his testimony. He explained the inspections of the property were conducted by City personnel from the Building and Safety Division and Code Enforcement. Their inspections revealed code violations of the Englewood Housing Code and the Uniform Building Code. Those violations resulted in the issuance of the Chief Building Official's Order to bring the house and property into compliance with City codes. The Order to correct those violations was issued to the property owner, Mr. Hyman Clar, on July 27, 1995. Mr. Blumenthal discussed Section 8-1-5:H. Investigations and Surveys, of the Englewood Municipal Code. He stated the section gives the Building Officials of the City the authority to conduct an investigation when there is a question of maintenance of the property. He elaborated that the particulars are those sections highlighted in Title 9. He concluded the City has a case history of the property with documentation from several years of property maintenance problems referenced by photographs and notices of code violations. 6 • •• • • The Chairman directed to Mr. Blumenthal to provide the Board with justification of the violations outlined in the Chief Building Official's Order from July 27, 1995. Mr. Blumenthal, Manager of Community Services, continued his testimony. He discussed Item #1: stating that at various inspections loose, frayed, and exposed electrical wiring was found. Item #2: inspections revealed deterioration of the plumbing. Item #3: concern about the condition of the heating system, including piping. Item #4: deterioration of windows and doors. For Items 1 through 4, compliance with the Order would require: a complete evaluation by a Colorado licensed architect, work to be done by a licensed contractor, and to obtain permits for any work performed. He added that some improvements have been made after family members cleaned up some of the outside property, installed a new window, and did interior painting. Mr. Seymour asked why licensed contractors were necessary. Mr. Blumenthal, Manager of Community Services, answered that the request that licensed contractors do any of the repair work was due to the question of Mr. Clar's ability to perform the work . He continued with Item #5 stating that those items were Housing Code violations observed during various inspections of the property: 1) Trash Accumulation: debris is piled around the property and against the fence; 2) maintenance of trees and shrubs: there are several dead trees that could endanger the occupants as well as the public; 3) Number of Pets: he counted 19 cats on the premises during his last visit; 4) General Sanitation Inside and Outside. Mr. Seymour questioned "due process", asking why the City had conducted these inspections. Mr. Blumenthal responded that the property has been a constant problem for code enforcement. He added that a variety of people, Code Enforcement Officers, the police, and neighbors has filed complaints. He added that Joyce Parsons, Code Enforcement Officer, was invited by Mr. Clar to the property. Ms. Christman asked how the letter was delivered to Mr. Clar, and if thirty days was considered a reasonable time to correct the items. Mr. Blumenthal replied that he personally delivered the letter, and that the thirty days was for evaluations, not for repairs or to correct the violations . 7 Discussion ensued. Mr. Barber questioned the "right of entry" by the City, and the procedures used. The Chairman expressed concern about determining if the Order was properly written and if City statutes gives authority for right of entry. Ms. Christman questioned if the letter of July 27, 1995, is considered an adequate notice of violations under Section 9-1-7-1: Notice of Violations-Service of the Englewood Municipal Code. The Chairman clarified that Section 9-1-7-1, is from the Englewood Municipal Code, and that Section 8-1-5 :H, refers to enforcing the Building Code. The Chairman asked Mr. Brotzman for an interpretation of Section 8-1-5:H. Mr. Dan Brotzman, City Attorney, clarified that Section 8-1-5:H, gives the Chief Building Official the power to conduct investigations and survey. Ms. O'Brien questioned the authorization of the Building Code to inspect and enter a property. Mr. Blumenthal, Manager of Community Services, answered the question. He explained that the authority of from Section 104.2.1, General Powers and Duties of Building Official. of the Uniform Building Code. The Chairman clarified that Section 8-1-5:H, authorizes the City to inspect, enter, and do surveys; and Section 9-1-7-1: Notice of Violations-Service. provides for the procedures of the Chief Building Official to service notice. Discussion ensued. The Chairman called a recess at 8:40 p.m. in order for Mr. Blumenthal to make copies of Section 104.1 of the Uniform Building Code. The meeting was called to order at 8:55 p.m. Roll call was taken with the same members present. Chairman Clayton clarified that the Board's issue under consideration was to determine whether or not the Order was reasonable and lawful. He directed to Mr. Blumenthal to establish the statute authorizing the Building and Safety Division to issue the Order of July 27, 1995. 8 •• • • •• • • Mr. Blumenthal, Manager of Community Services, entered into the record Section 104, Organization and Enforcement. of the U.B.C. He explained that Section 104.2.1, General Powers and Duties of the Building Official", is the specific section giving the Chief Building Official the authorization to enforce the provisions of the code. He read into the record Section 104.2.9. Tests: "Whenever there is insufficient evidence of compliance with any of the provisions of this code or evidence that any material or construction does not conform to the requirements of this code, the building official may require tests as proof of compliance to be made at no expense to this jurisdiction." He stated that the request for an "evaluation" of Items 1 through 4, as listed in the Order, and is the equivalent to "test". Ms. O'Brien questioned if an evaluation can be interpreted the same as a test. Mr. Blumenthal conceded that perhaps "test" should have been used in the Order. Discussion ensued. The Chairman continued questioning what specific sections of the E.M.C . or U.B.C. did the Building and Safety Division use to issue the Order. Mr. Blumenthal, Manager of Community Development, responded that both the Uniform Building Code, and the Englewood Municipal Code. He clarified that Items 1-4 were code violations from the U.B.C. and Item #5 was for code violations from Title 9 of the Englewood Municipal Code . Discussion ensued. Ms. Christman questioned if there was a section of the U.B.C. that was comparable to Section 9-1-7-1 of the E .M.C . Mr. Blumenthal, Manager of Community Services, added that Section 104.2.9 was the basis for issuing the Order. Section 9-1-5, Enforcement Agency, authorizes the Chief Building Official to enforce the provisions of the Code, and Section 9-1-7-1: Notice of Violations. give the Chief Building Official the authorization to issue the notice. He quoted Section 9-1-7-1: A-3: "provide a reasonable time but not less than thirty days in any event for the correction of the violation particularized." 9 He answered the question of why there was not a list of all the violations. He responded •. that it would entail numerous pages. He agreed that the section denoted "to particularize" but reiterated that it would be numerous pages. The Chairman inquired of the Board what conclusion they would like to come to: that the Order was appropriately issued or decide it was not appropriately issued, and to perhaps suggest that the Building and Safety Division re-issue the Order. Discussion ensued on correct verbiage for a motion. Mr. Seymour moved: Ms. Christman seconded: THAT FOR CASE #13-95, MR. HYMAN CLAR PROPERTY OWNER OF 3529 SOUTH ELATI STREET, BE GRANTED AN APPEAL FROM THE CHIEF BUILDING OFFICIAL'S ORDER ISSUED JULY 27, 1995, DUE TO IMPROPER NOTICE GIVEN TO THE APPLICANT REGARDING ITEM #5, UNDER SECTION 9-1-7-1, OF THE ENGLEWOOD MUNICIPAL CODE, FOR FAILURE TO PARTICULARIZE THE VIOLATIONS AND PROVIDE A REASONABLE TIME FOR THOSE CORRECTIONS. Discussion ensued . Ms. O'Brien amended the motion: Mr. Seymour agreed to the amended motion: THAT SECTION 104.2.9 TESTS, OF THE U.B.C. WAS NOT APPROPRIATE TO REQUEST AN EVALUATION FOR ITEMS 1-4 OF THE JULY 27, 1995 ORDER, THAT THE BASIC NOTICE REQUIREMENTS UNDER THE U.B.C. WERE NOT MET. The Chairman asked the appellant to come forward for testimony. Thomas Hall, 1500 West Briarwood Avenue, Littleton, was sworn in for testimony. He stated his connection to the case is that Mr. Clar is his great uncle. He explained that in his opinion the current U .B. C. should not be applicable to Mr. Clar's house: it was built in 1929. He stated the family is currently helping Mr. Clar improve the maintenance of the house and property. He concluded stating it would be difficult to repair all the items mentioned in the July 27, 1995 Order. He stated in his opinion the house meets the Housing Code within reason. He added Mr. Clar is complying with the law within his means. 10 • • • • • With no further persons present for or against the request, the Chairman closed the Public Hearing. The Chairman incorporated the staff report into the public record and asked the members to lock in their votes and give their findings of fact. Mr. Seymour voted "yes" stating that the Building Division failed to provide adequate and proper procedure. Ms. Christman voted "yes" adding that the applicant should be given adequate time to correct the violations, and the City should work with him to ensure compliance. Mr. Barber voted "yes" stating that the city failed to give proper notification to the applicant, that the owner of the property has the right of "due process". Ms. O'Brien voted "yes" stating fair and reasonable notice should include specific facts that must be set forth in a notice. Mr. Clayton voted "yes" stating the Order did not meet the requirements of the E.M.C. or the U .B. C., that the Building Department did not demonstrate "reasonable cause" to issue the Order. When the votes were displayed, all five members voted in the affirmative. The Chairman announced the appeal as granted 5-0. STAFF ADVISOR'S CHOICE: Mr. Stitt discussed the revised BOA Handbook. He distributed a copy to each member with the changes made from the Study Session in August. CITY ATTORNEY'S CHOICE: None. BOARD MEMBERS CHOICE: Ms. Christman announced that she will be out of town for the October 11th meeting. The meeting was declared adjourned at 9:25 p.m. Cathie Mahon, Recording Secretary 11