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HomeMy WebLinkAbout1997-11-12 BAA MINUTESMINUTES BOARD OF ADJUSTMENT AND APPEALS November 12, 1997 I. CALL TO ORDER. The regular meeting of the Englewood Board of Adjustments and Appeals was called to order at 7:40 P .M. in the Englewood City Council Chambers, Chair O'Brien presiding. Members present: Barber, Bode, O 'Brien , Seymour, Smith Members absent: Allen and Fowler Staff present: City Attorney Brotzman Planning Coordinator Harold Stitt Planning Technician Cathie Mahon Chair O'Brien announced a quorum of five members present; therefore, four affirmative votes will be required to grant a variance. Ms. O'Brien set forth parameters for conduct of hearings : staff will identify the case; applicants will present their request and reasons the variance should be granted ; proponents will be given an opportunity to speak; and then opponents will address the Board. II. PUBLIC HEARING -CASE #9-97 Nile Schwabauer, Quality Restoration for Catherine Hicks, Homeowner 4015 South Inca Street Chair O 'Brien declared the Public Hearing open, stating she had proof of posting and publication. Ms. O'Brien stated that the Board of Adjustment and Appeals is authorized to grant or deny variances by Part Ill, Section 60 of the Englewood City Charter. Staff was asked to present the request. Harold J. Stitt was sworn in for testimony. Mr. Stitt stated Case No. 9-97 is a request filed by Nile Schwabauer of Quality Restoration on behalf of Catherine Hicks, owner of 4015 South Inca Street. The request is to permit construction of a carport that would encroach 2 .32 feet into the required 3 foot side yard set back. This is a variance from §16-4-4 :M1d, Minimum side yard set back , of the Comprehensive Zoning Ordinance . Mr. Nile Schwabauer, 231 South Clarkson Street, Denver, Colorado, was sworn in for testimony . Mr. Schwabauer testified that Mr. Stitt had written a good analysis of the situation and asked if the Board had seen it. Chair O'Brien stated they had. Mr. Schwabauer explained he is a licensed contractor, hired by the owner of the property to construct a carport. Entered into the record were statements from three neighbors in favor of the variance . He also submitted for the record five photographs of carports in the neighborhood to assist in illustrating the type of carport proposed. Mr. Schwabauer 1 concluded his testimony by describing the carport as having wrought iron posts and steel roofing, and will be constructed to provide protection for Mrs . Hicks' automobile. He added that it will be an attractive carport and be harmonious within the neighborhood . Mr. Smith asked if the carport will be open on the sides. Mr. Schwabauer stated that it will. Mr. Smith asked if the two posts , along with the roof overhang, will be in the set back. Mr. Schwabauer answered that four posts will not go all the way out. The encroachment that was identified was the dimension of the slab and the posts will be a half foot within the slab; which is actually 1.8 feet of the structure from the house. Mr. Barber asked about the roof. Mr. Schwabauer responded by stating that the roof area will extend from the eave of the house, approximately 8 feet; exactly 10 feet from the wall of the house, leaving 1.18 feet to the property line. The roof will come out to the post and the drain will come out 5 inches. There were no other persons present to testify for or against the variance request. Chair O'Brien incorporated the Staff Report and exhibits into the record and closed the public hearing. Mr. Seymour moved: Mr. Smith seconded: THAT FOR CASE #9-97, CATHERINE HICKS, 4015 SOUTH INCA STREET, BE GRANTED A VARIANCE TO PERMIT CONSTRUCTION OF A CARPORT THAT ENCROACHES 2.23 FEET IN THE REQUIRED 3 FOOT SIDE YARD SET BACK. THIS IS A VARIANCE FROM SECTION 16-4-4:M1d MINIMUM SIDE YARD SET BACK, OF THE COMPREHENSIVE ZONING ORDINANCE. Discussion ensued. Mr. Seymour stated that he had visited the property and that it will not look any worse than any other carports in the neighborhood. He questioned how some of the other carports were constructed without the Board being notified. With no further discussion, the secretary polled the members' votes. Mr. Seymour stated he voted yes because the carport will conform into the neighborhood nicely and will not detract from the neighborhood. Mr. Smith voted yes stating that the Staff Report more than adequately summarized the five criteria. Mr. Bode and Mr. Barber voted yes concurring with Messrs. Seymour and Smiths ' statements. Chair O'Brien voted yes concurring with Messrs. Seymour and Smiths' statements. The Chair announced the variance as granted by a 5-0 vote, and directed the applicant to contact the planning division staff for any additional information. 2 .. ' Ill. PUBLIC HEARING -CASE #10-97 Fred Sass 4555 South Fox Street The Chair noted for the record that the Englewood Herald erroneously published this case as Case No. #9-97; however, all other relevant information is correct. She stated that she received a memo from Nancy Fenton, recording secretary, indicating t hat Assistant City Attorney Nancy Reid has determined that it is a "De Minim is" typographical error and that the publication is sufficient. The Chair stated she is following Nancy Reid 's legal advice in the matter in viewing the publication as sufficient. Mr. Smith moved: Mr. Seymour seconded: THAT AS PART OF THE FINDINGS OF FACT IN THIS CASE, THAT A FINDING BE INCLUDED STATING THE PUBLICATION OF NOTICE AS SUFFICIENT. AYES : NAYES : ABSENT: Barber, Bode , O'Brien, Seymour, Smith None Allen and Fowler The motion carried. Chair O'Brien declared the Public Hearing open, stating she had proof of posting and publication. Ms. O'Brien stated that the Board of Adjustment and Appeals is authorized to grant or deny variances by Part 3, Section 60 of the Englewood City Charter. Staff was asked to present the request. Mr. Stitt stated Case #10-97 is a request filed by Fred Sass, owner of 4550 South Fox Street. Mr. Sass is requesting a variance to permit the retention of a front yard fence that exceeds the maximum fence height of 42 inches by 18 inches. This is a variance from Section 16-4-17:C1, Maximum fence height of the Comprehensive Zoning Ordinance. Mr. Fred Sass, 4550 South Fox Street, was sworn in for testimony. Entered into the record were statements from three neighbors in favor of the variance, as well as ten pictures of the fence and property in question. Mr. Sass testified that he is at fault in regard to obtaining a building permit and is willing to pay the penalty . He stated he replaced an existing 5 foot wire fence built by the original owners with a wood fence . Mr . Sass referred the Board to the picture showing a black pipe which indicates the height of the existing fence. He further stated that he was unaware he wasn 't permitted to build the fence that tall and did so in cooperation with his neighbor to protect the neighbor's flowers and yard. Mr. Sass explained when he had a tree removed from his yard a year ago , the wire fence was damaged; therefore , he decided to build a wood fence. 3 Mr. Sass referred the Board to the photographs showing his property. He indicated there is a drop off from the South property line to the front yard is approximately 3.5 feet. He added another reason he installed the solid fence was to contain his dog . He stated with a 42 inch fence people could get into the yard-neighbor's grandchildren and other children in the neighborhood-and the dog could get out. Mr. Sass further explained to the south of his property there is a hedge that is over 42 inches and acc idents have occurred at that location. He stated his fence is set back from the street over 10 feet, leaving for an unobstructed view of the street. He reiterated that he built the fence to ease yard maintenance for himself and his neighbor; protection for his dog; it looks nicer than the old wire fence; and it does not distract within the neighborhood . Mr. Sass answered questions from Board members. Mr. Seymour stated he felt the fe nce did not look attractive when traveling from the North to the South , but that it looked nice from South to North. He asked if the fence was 5 feet from the top of the terrace . Mr. Sass responded that the top of the fence was 5 feet from the terrace. Mr. Seymour further commented that he feels the height on the front portion of the fence is excessive , even though it is set back 10 feet back. He stated that he is "stuck " with the way the prev ious owners built the terrace . Mr. Seymour countered that he could have 7 feet above his actual yard level ; currently he has 8.5 feet. Mr . Seymour asked if there was any way he could cut the fence down a bit. Mr. Sass responded he could but was trying to help the neighbors and reduce yard maintenance. Mr . Barber asked Mr. Stitt what the regulations are for leaving 50 percent open fencing on side yards . Mr. Stitt responded those regulations apply to corner lots. Mr. Sass referred the Board to the photograph showing the alley and stated a neighbor has a 6 foo t fence that comes out to the front of the street and across . Chair O'Brien asked Mr. Sass if he could , at this point, taper the front of the fence down . Mr. Sass responded that he probably could , but he would have to buy new pickets . Mr . Barber asked how City Council was involved in this request , referencing the staff report -"City Council directed the Acting City Manager to direct the Department of Neighborhood and Business Development to work something out." Mr. Barber asked Mr. Sass if he had contacted his City Council representative in his neighborhood to complain about the Notice of Violation . Mr. Sass answered that as soon as he received the Notice he came to the City and asked if there was a way he could get a variance and was informed that he couldn 't; hence, he contacted his City Council representative. Mr . Barber asked if there was any way he could taper down the fence to conform to the 42 " without replacing the pickets. Mr . Sass stated that the pickets would break . Mr . Barber stated he understands Mr. Sass 's position in wanting to maintain what is already constructed , but there are circumstances surrounding the lot and grade issues that are concerns. 4 · Mr. Smith and Mr . Seymour reviewed the photographs. Chair O'Brien asked Mr. Sass if the fence was 42" whether it would provide containment for his dog. Mr. Sass responded that it would to some degree, but the dog could still jump the fence and get to children. Chair O'Brien then asked what he thought the minimum height of the fence needed to be to provide protection . Mr . Sass responded that he probably could make the fence 42". Mr . Smith asked the height of the chain link fence. Mr. Sass stated it was 45 ". Chair O'Brien stated there appears to be a consensus among the Board members that the variance be the minimum required-45 inches. She suggested that the Board take a short break to allow Mr . Sass to confer with Staff regarding amending his variance request. A short recess of the Board was declared by the Chair. The meeting reconvened at 8:10 p.m.; with five Board members present. Mr . Sass asked that his variance request be amended to 45 inches . Mr. Stitt stated that Staff supported the amendment to the request. Mr . Sass asked the Board how they would direct him to make the fence 45 inches-straight drop off from the house or could he taper it. Discussion ensued . Mr . Smith moved: Mr. Barber seconded: THAT FOR CASE NO . 10-97 , FRED SASS, 4550 SOUTH FOX STREET, BE GRANTED A VARIANCE FROM §16-4-17-C1: MAXIMUM FENCE HEIGHT, OF THE COMPREHENSIVE ZONING ORDINANCE, WITH THE FOLLOWING TERMS AND CONDITIONS: THE FENCE LOCATED ON THE SIDE PROPERTY LINE MAY BE NO MORE THAN 45 INCHES IN HEIGHT FOR THE FIRST 15 FEET; TAPERING TO 72 INCHES AT NO MORE THAN A 45 DEGREE ANGLE. There were no other persons present to testify for or against the variance request. Chair O'Brien incorporated the Staff Report and exhibits into the record and closed the public hearing . Discussion ensued. Mr. Seymour stated he did not think cutting the fence down to 45 " would be difficult, but Mr. Sass had a bit of a task to taper the fence . Mr. Smith stated that it was Mr. Sass 's decision whether he wanted to taper the fence or not; he could cut the fence to 45 " straight across with no taper. With no further discussion, the secretary polled the members ' votes. 5 Mr. Seymour voted "yes " because it appears to be the best that can be done for both parties. He disputed the staff report regarding the first criteria ; he stated an exceptional condition exists due to grade differences. Mr. Smith , Mr. Barber, and Chair O'Brien voted "yes" concurring with Mr. Seymour. Mr. Bode voted "no", stating the fence was high and did not look good in his opinion . He agreed with the staff report. The Chair announced the variance as granted by a 4-1 vote , and directed the applicant to contact the planning division staff for any additional information . Ill. APPROVAL OF MINUTES. Chair O'Brien asked for consideration of the Minutes from the October 8, 1997 , public hearing . Seymour moved , Bode seconded: THE MINUTES OF OCTOBER 8, 1997 BE APPROVED AS WRITTEN. AYES: Barber , Bode , O'Brien , Seymour and Smith NAYS: None ABSTAIN: None ABSENT: Allen and Fowler The motion carried. The Chair announced the motion approved . IV. STAFF ADVISORS' CHOICE. Mr. Stitt reported that there were no cases for December. Mr. Smith asked that Staff vis it 4550 South Fox Street and measure the distance between the two posts . V. CITY ATTORNEY'S CHOICE. City Attorney Brotzman stated it was nice to see the Board again . VI. BOARD MEMBERS' CHOICE. Mr. Seymour stated he and his wife would be attending the Staff Christmas dinner on December 18 , 1997 . Mr . Smith questioned why the Board was receiving so many fence variances . Mr. Barber asked Staff if the revision to the fence ordinance had reached City Council. Mr. Stitt responded that it is still at the Plann ing and Zoning Commission level. The Public Works Department had requested that the public hearing be continued. Discussion ensued on various fences that were not in compliance with the fence ordinance. Chair 6 O'Brien asked Staff what the City was doing to enforce the ordinance . Mr. Stitt responded that he is not involved in enforcing the ordinance; that responsibility lay with Code Enforcement. Mr. Bode requested that a representative from Code Enforcement be at the next meeting. Mr. Brotzman stated he would have a representative from tha t depa rt me nt at the next meeting . Mr. Smith stated he wanted a written report from Code Enforcement, prior to the next meeting, regarding the fence at BC Auto. Chair O'Brien stated the Board had denied their variance , but a fence has been constructed any way. Mr. Seymour stated that the fence is 52-56 inches high; not just the 4 feet they asked for. Mr. Barber asked if the new fence ordinance would have a "phasi ng out" of non- conforming fences within a certain time period . Mr. Brotzman stated he did not believe there was such a provision. Mr. Barber stated he would support such a provision and asked that someone bring it up in regards to that ordinance . Mr. Smith stated if we can amortize signs , it should be able applicable with fences. Mr. Barber agreed with Mr. Smith that a representative from Code Enforcement should attend the meetings on a regular basis ; therefore , it would be on public record that the Board has requested action on a part icular property. Mr. Smith noted that at the October 20 , 1997, City Council meeting, Councilman Wiggins made note of some comments that were in the Board's minutes and gave Mr. Esterly a marked-up copy of those minutes . Mr. Smith asked whether Mr. Esterly provided a formal reply to Council. Mr. Brotzman stated he believed there was and would provide a copy to all Boa[d members. There was no further business brought before the Board . The meeting was declared adjourned at 8:32 p.m . . Fenton, Recording Secretary \\cng_ ch\sysldcptlnbd\grou plboardslboa\mi nu tcsl I 0-97 .doc 7