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HomeMy WebLinkAbout1999-03-10 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS March 10, 1999 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 Bode presiding. Members present: Bode, Davidson, O'Brien, Rasby, Seymour, Smith Members absent: Mcintosh Staff present: Nancy Reid, Assistant City Attorney Robert Simpson, Director of Neighborhood and Business Development Harold Stitt, Senior Planner Lance Smith, Chief Building Official Chair Bode stated that there were six members present; therefore, five affirmative votes will be required to grant a variance. Chair Bode stated that the Board of Adjustments and Appeals is empowered to grant or deny variances by Part Ill, Section 60 of the Englewood City Charter. Chair Bode set forth parameters for conduct of hearings: The Chair will introduce the case; applicants will present their request and reasons the variance should be granted; proponents will be given an opportunity to speak ; opponents will address the Board; and then staff will address the Board. II. ELECTIONS Mr. Seymour moved; Mr. Smith seconded: THAT WILLIAM BODE BE ELECTED CHAIR AND MARCIA O'BRIEN BE ELECTED AS VICE CHAIR. AYES: NAYS: ABSTAIN: ABSENT: Bode, Davidson, O'Brien, Rasby, Seymour, and Smith None None Mcintosh The motion carried . II. DISCUSSION Mr. Smith stated that he was appalled, disgusted, and enraged with the staff report in this case, which consists of one page and states there is a difference between UBC and HUD. The staff report does not explain those differences with regard to the subject property; in fact, it explains nothing. He stated it was his understanding that the City is prepared to offer the Board documents in support of its position, but it is "too little, too late." He explained that information needs to be to the Board in a proper and timely fashion. In addition, he believes the opposition has not had a chance to review these documents. He continued by stating that the Board has two new members who have never seen the Board of Adjustment and staff did not see fit to schedule any type of orientation meeting to discuss the procedures of the Board. Based on that Mr. Smith suggested tabling the case and directing the City to prepare a sufficient report which includes an opinion from the City Attorney regarding whether the Housing and Urban Development Act preempts the local ordinance and what the legal perspective is regarding this case. This information should then be given to the applicant in order for the applicant to respond. The Board, therefore, will have a full record to review before the public hearing. Mr. Smith moved; Chair Bode seconded: TO TABLE CASE 2-99, MELISSA AND YUTAKA MAGEE, UNTIL APRIL 14, 1999. Chair Bode stated that he felt the information provided was inadequate. Ms. O'Brien stated that she understands Mr. Smith's feelings, but she is interested in what the applicant would like to have happen. She stated she was concerned if a hardship would be created for the applicant by tabling the case. Before she votes to table the matter, which is her first inclination, she asked the applicants' position. Mr. Smith stated he would not object to the applicant responding. Mr. Doug McKinnon, attorney at law, stated he represents the applicants. He stated that he understands Mr. Smith's position, having been a city attorney for a number of years, and understands that the Board needs all the information before it can make a decision. Mr. McKinnon explained that the case was originally scheduled for February 10, and due to a lack of a quorum and his being out of town, the case was rescheduled. He continued by stating that his clients would now have to wait another month. He stated he understood how it would be difficult for the Board to approve the matter without sufficient information. He expressed his desire that the Board and the applicant to struggle through and didn't know if he, in fact, had all the discovery. 2 • • • • • • Mr. Smith stated for the record that he has known Mr. McKinnon for approximately 25 years through various Bar Association meetings; however, that association will not sway his vote. Mr. Smith offered an alternative --conduct the public hearing; hear testimony; and City staff and Mr. McKinnon prepare briefs to supplement. The Board could then meet at a later date to discuss the matter and issue a written decision. Mr. Smith asked for Mr. McKinnon 's preference. Mr. McKinnon clarified that the Board met once a month; Mr. Smith stated that was correct. Mr. McKinnon stated that his clients are looking for a resolution and felt that scenario might be helpful. Ms. O'Brien pointed out that it was possible for the Board to meet before the next scheduled meeting; therefore , the applicants wouldn't need to wait an additional month. Mr. Smith concurred that would be another option . He asked Ms. Reid if she had any comments regarding receiving written materials , some testimony, and additional written materials in seven days, and the Board meeting at a later date to decide the matter. Ms. Reid stated that the Code requires that evidence be under oath . Accepting evidence under oath, such as written briefs by staff and the applicants, would be acceptable and the Board would then need to conduct another public meeting for discussion and vote. Ms. Reid stated while the public meetings are scheduled on a monthly basis, the Board has the authority to schedule special meetings . Ms . O 'Brien asked if there would be any notice requirements for the next public hearing. Ms. Reid responded that if the case is opened and then continued, no publication is necessary. Mr. McKinnon asked if he could approach the Board. Chair Bode asked him to approach. Mr. McKinnon stated that it would be his clients ' preference that the Board have the material ahead of time and that they have all of the exhibits that the City may be using. It may be difficult this evening, not only for the Board , but for the City and himself to receive an exhibit, read it , and respond; it would be a timely endeavor. He stated he believes it would be easier for all parties involved if the material could be delivered to each side and a special meeting scheduled prior to the next month 's meeting. Mr. Smith asked staff when a special meeting could be held in the Council Chambers. Discussion ensued. Mr. Smith withdrew his motion to table, and Chair Bode withdrew his second to that motion. Mr. Smith suggested opening the public hearing and continuing it until Tuesday , March 23 at 7:30 pm with direction to staff to provide information to all parties by March 12. Further, replies by all parties be mailed on March 19, including any legal opinion each side wishes to include. The Board would then , therefore , have all the necessary information to review by March 19 . Ill . PUBLIC HEARING -CASE #2-99 Melissa and Yutaka Magee 3 101 West Layton Avenue Chair Bode declared the Public Hearing open. Chair Bode introduced the case by stating the applicant is requesting an appeal of The Englewood Municipa l Code - Section 9-5-2B "Use of Mobile Home". Mr. Seymour moved; Mr. Smith seconded: AYES: NAYS: ABSTAIN: ABSENT: TO CONTINUE CASE NO. 2-99 , YATAKA AND MELISSA MAGEE, TO TUESDAY, MARCH 23, 1999 AT 7:30 P .M. Bode, Davidson, O'Brien , Aasby , Seymour, and Smith None None Mcintosh The Chair announced the case continued by a 6-0 vote. • Ms. Reid asked for clarification on the deadlines. Mr. Smith replied that by March 12 , the Board needs to receive the information that staff was prepared to hand out at tonight's meeting and any information Mr. McKinnon would like to include. By March 19, the Board needs to receive all information necessary for the March 23 meeting, including a legal analysis of the HUD Act vs . the UBC , the preemption issue , and any • other legal matters Ms. Reid thinks is important for the Board to consider. Mr. Smith asked staff to set an orientation lunch or meeting within the next two weeks for the new board members. IV. APPROVAL OF MINUTES. Chair Bode asked for consideration of the Minutes from the November 12 , 1998 and January 13 , 1999 , public hearings. Smith moved, Seymour seconded: THE MINUTES OF NOVEMBER 12 , 1998 AND JANUARY 13 , 1999 BE APPROVED AS WRITTEN. AYES: NAYS: ABSTAIN: ABSENT: Bode , O'Brien, Seymour, and Smith None Davidson and Aasby Mcintosh The motion carried . The Chair announced the motion approved. 4 • • • • v. FINDINGS OF FACT Mr. Seymour moved; Mr. Smith seconded: THAT THE FINDINGS OF FACT IN CASE #11-98, GARY M. FREDERICS, 3954 SOUTH PENNSYLVANIA; CASE #12-98, CHRIS A. BLAKELY, 4756 SOUTH CLAY COURT, CASE #13-98, BISHOP COMMERCIAL PROPERTIES, 3348 SOUTH BROADWAY; CASE #14-98, THOMAS M. AND ELIZABETH B. LONG, 2090 EAST EASTMAN AVENUE; AND CASE #15-98, BROADWAYS SPORT TAVERN, 3978 SOUTH BROADWAY, BE APPROVED AS WRITTEN. AYES: NAYS: Bode, O'Brien, Seymour, and Smith None. ABSTAIN: ABSENT: Davidson and Aasby Mcintosh The motion carried. VI. STAFF ADVISOR'S CHOICE Staff had nothing further . VII. CITY ATTORNEY'S CHOICE Ms. Reid asked if the Board wished to discuss Ms. Mcintosh's continued absence. The recording secretary informed the Board that Ms. Mcintosh has been absent 6 out of 8 meetings since her appointment to the Board. Ms. Reid continued by stating that the recording secretary calls Ms. Mcintosh each month and has tried on a number of other occasions to contact Ms. Mcintosh with no success. Chair Bode asked if Ms. Mcintosh responded to the January 14 letter. Ms. Reid stated she had not heard from Ms. Mcintosh and asked the recording secretary if the letter had been returned. Ms. Fenton stated it had not. Mr. Smith moved; Ms. O'Brien seconded: THAT THE ASSISTANT CITY ATTORNEY DRAFT A LETTER FOR THE CHAIRMAN'S SIGNATURE RECOMMENDING TO COUNCIL THAT MS. MCINTOSH BE REMOVED FROM THE BOARD AND THAT COUNCIL APPOINT A REPLACEMENT. AYES: Bode, Davidson, O'Brien, Aasby, Seymour, and Smith NAYS: None ABSTAIN: None 5 ABSENT: Mcintosh The motion carried. Chair Bode asked that Ms. Reid call him when the letter was ready to be signed. XI. BOARD MEMBER'S CHOICE Mr. Smith stated that in a previous meeting he had requested copies of the Official Notifications filed with the County and that it be included in the Board's pac ket for each case. Ms. Fenton responded that after that meeting she mailed copies of the Notifications to the Board and requested that they advise her if they wished the Notifications to be included in their packet. The Board never responded. Chair Bode stated he recalled that the Board was going to discuss the matter and then advise the recording secretary how to proceed; the Board has not done that. Mr. Smith asked when the Notification was recorded --before or after the Findings of Fact are approved? Ms. Fenton responded that the Board's decision becomes effective the night of their vote; therefore, the Notification is recorded with the County after the Board's decision and before the Findings of Fact are approved. She further clarified that appeals are not recorded; only variances which the Board grants. Discussion ensued. The Board decided to meet at 7:00 on March 23, prior to the public hearing, to discuss the matter. • Ms. Davidson stated that it would be better for her if she could sit on the other side of • the room. Mr. Smith volunteered to switch places with her. Ms. Davidson asked how the Board fits in with the Planning and Zoning Commission. For example, if a case is approved by the Planning and Zoning Commission, does it have to be denied by City Council before it comes before the Board of Adjustment? Ms. Reid stated that the orientation would answer a lot of those questions. As a brief overview, Ms. Reid stated that the Board of Adjustment and Appeals handles appeals or variances from the chief building official on housing and building code issues, as well as variances from the Zoning Code. The Planning and Zoning Commission makes recommendations to City Council regarding changing in zoning, the master plan, planned unit development and are a recommending body; City Council makes the decision. Mr. Smith asked if the new members received The Zoning Board Manual in their packet. Ms. Davidson and Mr. Rasby stated they did not. The recording secretary stated she would deliver a copy of the book to them. Ms. Reid continued by stating that the Board does not change the zoning of property; it reviews the Zoning, Building, and Housing Codes, as they exist, and makes a decision on a case by case basis. The Board of Adjustment and Appeals is a quasi-judicial board; any appeal from the Board's decision is to Court. Mr. Seymour asked if a training session would be set up. Mr. Simpson responded that an orientation meeting would be scheduled. Ms. O'Brien welcomed Ms. Davidson and Mr. Rasby to the Board. The remainder of the Board members echoed Ms. O'Brien's comments. 6 • • • • Mr. Seymour stated that he enjoyed attending the ICBO Conference and encouraged other Board members to attend next year. There was no further business brought before the Board. The meeting was declared adjourned at 8:40 p.m. Nancy G. enton, Recording Secretary 7