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HomeMy WebLinkAbout1999-03-23 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS March 23, 1999 I. CALL TO ORDER A special meeting of the Englewood Board of Adjustments and Appeals was called to order at 7:30 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 Mark Graham, Senior Planner Lance Smith, Chief Building Official Chair Bode stated that there were six members present; therefore, five affi rmative votes will be required to grant a variance or appeal. Chair Bode stated that the Board of Adjustments and Appeals is empowered to grant or deny variances and appeals by Part 111, 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 appeal should be granted; proponents will be given an opportunity to speak; opponents will address the Board; and then staff will address the Board. II. PUBLIC HEARING -CASE #2-99 Melissa and Yutaka Magee 101 West Layton Avenue Chair Bode declared the Public Hearing reopened, stating the case was continued from March 10, 1999. Chair Bode introduced the case by stating the applicant is req uesting an appeal of The Englewood Municipal Code -Section 9-5-2B "Use of Mobile Home". Doug McKinnon, attorney for the applicants, entered his appearance. Yutaka and Melissa Magee, 5776 S. Lowell Way, were sworn in for testimony. Mr. McKinnon stated the applicants obtained a building permit, and the contractor who assembled the home is present and available to answer questions. From reading the City's definitions of "mobile home" versus "modular home", Mr. McKinnon stated he believed it would be a "long stretch" to include a modular home within the definition of mobile home contained in the City's Ordinance. He continued; the City's definition of a mobile home in Section 9-5-1 is: 1 "Any vehicle used, or so constructed as to permit its being used, as a conveyance upon the public streets or highways and duly licensable as such and constructed in such a manner as will permit occupancy thereof as a dwelling or sleeping place for one or more persons." Mr. McKinnon reiterated that he believes a modular home does not fit this definition; it is not a vehicle and never has been. He continued by stating there is no definition, that he can find, in the State statutes or any federal regulations, that suggest that a modular or manufactured home is a vehicle of any type. Further, it is not being used as a conveyance upon the public streets or highways, and it cannot be licensed. Clearly what is intended when referring to a mobile home is something that can move under its own power from one place to another; it normally has a chassis; it has drive belts; and other parts that make it mobile. The home in question is not mobile; it is on a concrete foundation; it cannot be moved, except as any other home can be moved; and it does not meet the criteria of a mobile home. Mr. McKinnon stated from a legal standpoint, that was their argument. Factually, the contractor has information to provide the Board concerning the permits, that the City knew what type of structure the home was --how it was being constructed, and the applicants' cost to purchase the home and property. • Mr. McKinnon continued by stating he believes the modular home is one of the "better looking" homes in the neighborhood; therefore, it does not detract from the area. On behalf of the applicants, he is asking the Board to conclude, as he believes the Ordinance provides, that the structure is not a mobile home and permit the applicants to • move into the home subject to the required inspections. He stated he was unable to find anything in the Ordinance which required building to USC code rather than HUD. If necessary, as an alternative to the appeal, McKinnon requested that the Board consider granting a variance. He continued by stating that the applicants purchased the property in good faith and believes that the home does not detract from the appearance of the neighborhood. The City has enjoined the applicants from moving into the home and proceeding further; hence the appeal to the Board. Mr. Seymour asked how the home was delivered to the property. Mr. McKinnon responded it was in two sections and was pulled in on a flatbed truck. Mr. Seymour asked if it had a frame and wheels. Mr. McKinnon stated that it did have a steel frame under it, but no wheels. Mr. Seymour stated the steel frame underneath was possibly one of the factors making it a mobile home. He referred Mr. McKinnon's attention to the building permit issued, specifically the area above the signature block. It states " ... all work done under this permit the permitee accepts full responsibility for compliance with the Uniform Building Code and all other applicable Englewood Ordinances." Mr. McKinnon reiterated that his clients' position is that the home is not a mobile home because it cannot be licensed. Englewood specifically states that a mobile home is licensable and this home cannot be licensed by anyone. Further, it is not mobile in the sense that it can be driven off the lot. Like many other homes, the framing was • completed offsite, delivered to the site, and placed on the foundation. 2 • • • Mr. Seymour asked if the home was built to UBC requirements or HUD requirements. Mr. McKinnon responded that he was sure it was built to HUD requirements, but he didn 't know if it was built to UBC standards; the con t ractor could answer that question. Further, he was unable to find any reference to the UBC other than what was cited from the permit. Mr. Seymour continued by asking if a tag was on the home when it arrived --a tag would indicate whether it was UBC or HUD . Mr. McKinnon stated he did not know. Ms. O'Brien asked Mr. McK innon for an example of what constitutes a mobile home under the Englewood defini t ion. Mr. McKinnon replied that it would be a home that can be lived in; it has wheels and a steering wheel; it has a chassis; it must be licensed by the State; and it can be readily moved from one location to another without the necessity of having it lifted onto a truck. M r. Seymour stated it sounded like Mr. McKinnon was describing a motor home . Mr. McKinnon re-read the definition of a mobile home from Section 9 of the Englewood Code . He reiterated that he doesn 't believe the applicants' house is a "vehicle." A vehicle has an engine and woul d be mobile . Mr. Seymour pointed out that boat trailers are licensable ; don't have an engine; and are pulled . Ms . O'Brien asked if he was familiar with mobile home parks containing doublewide mobile homes that are in the ground , similar to the applicants ' house . If so, how did he distinguish those mobile homes from the applicants' home? Mr. McKinnon stated that if the Board determines the applicants ' house is a vehicle --one of the criteria in the City 's definition, then everyone goes home. Ms. O 'Br ien clarified that the unit was delivered in two sections and has a steel frame under it. Mr. McKinnon responded that was correct. Ms. O'Brien asked if he knew who signed the building permit for the unit? Mr. McKinnon stated that he did not. Mr. McKinnon stated all he is suggesting is if the definition of a mobile home , as used by the City in the Ordinance , fits this home then it is a mobile home. Ms. O'Brien asked how he dist inguished between a mobile home and a modular home and asked for a physical description. Mr. McKinnon responded that he has never heard of a modular home being called a vehicle; and again a mobile home is something that is moveable for the most part by itself --that's what makes it mobile. It is not just the frame ; it is the fact that the ent ire unit can be moved by itself ; and it is subject to a license because it travels on highways. Mr. Seymour asked if the unit was habitable without a concrete foundation under it. Mr. McKinnon stated he didn't know , but the contractor would be able to answer it. Ms. O'Brien asked why the applicants d idn't want the unit in a mobile home park. Mrs. Magee replied that she called numerous mobile home parks within Englewood and was told that based on its size , it would not fit in their mobile home parks. Mr. Magee testified that he purchased the land from his grandmother because it was too big for her to maintain. He and his wife decided to look at modular homes; however, he also called 3 the City of Englewood to verify that a manufactured/modular house could be placed in the City. They were informed that it could, and no one told him it had to be USC. Ms. O'Brien asked from whom they purchased the unit. The applicants responded that they purchased the home from Oakwood Homes. Ms. O'Brien further asked if Oakwood Homes had any relationship with the contractor they used. Mr. Magee replied that Oakwood Homes referred him to the contractor. Ms. O'Brien inquired how Oakwood Homes described the unit when they purchased it. Mrs. Magee stated that it was described as a manufactured home. Ms. O'Brien asked if it was represented to them if there were any manufactured homes of that type in Englewood. Mrs. Magee stated they were informed that manufactured homes had been placed in Englewood. Paul Duncan, 8471 Turnp ike Drive, Suite 200 , Westminster , CO , was sworn in for testimony. Mr. Duncan testified that he was originally contacted by the applicants to install the Oakwood home in the C ity of Englewood , and a bid was prov ided to them for the installation. Foundation design drawings were completed for the home and the architectural construction specifications were obtained from Oakwood Homes; a permit application was then completed with the City. During the review process, the City had some questions regarding the site plan which was submitted ; revisions were made ; and a corrected site plan was returned to the City . At that time , he tried to pick up the permit but was advised that all the review comments had not been returned. He paid for the permit and asked that the permit be mailed when it was completed. When the permit • arrived, he reviewed the construction review notes for any items of concern. The City • noted the home must have a Colorado Seal of Inspection permanently attached to the structu re , but there was nothing indicating only a USC manufactured home could be installed. Mr. Duncan further testif ied that some of the confusion regarding state certified is due to the fact that the Colorado Division of Housing oversees both the state certification and the HUD program. He reiterated there was no mention that the home had to be USC certified ; only state certified. Mr. Duncan continued; regarding the permit language that Mr. Seymour noted , the permit specifically addresses the foundation work and the foundation was constructed to UBC code . An engineer from his company came to the site and observed the rebar concrete placement that was required and then subm itted a letter to the City that the project was in compliance with the design drawings . After the house was set by another subcontractor, who was contracted by Oakwood , the plumber and electrician pulled plumbing and electrica l permits. During the electrical inspection , the electrical inspector had questions regarding smoke detectors in the bedroom and mentioned they were a requ i rement by the National Electric Code (NEC). Mr. Duncan advised him that the home was manufactured to HUD standards and wasn 't sure how HUD and NEC interacted , but believed that HUD didn 't require smoke detectors in the bedrooms, only outside the bedrooms . Mr. Craig Daly , plumbing inspector for the City , inspected the home and passed the plumbing which is installed to Uniform Plumbing Code. Mr. Daly had some questions regarding the water heater and smoke detector locations; he then wrote a correction notice regarding those items. After receiving the correction notice , Mr. Duncan testified he called Mr. Daly to adv ise him the home was manufactured to HUD standards, not USC. Mr. Daly requested permission for he and his supervisor to enter • 4 • • • the home; Mr. Duncan informed him that wouldn 't be a problem and supplied him with the lock box combination. Mr . Duncan stated the house was then posted with a Notice to Vacate Premises, which stated the home was in violation of the Englewood Municipal Code , Section 9-5-28 with an illegal structure on the site , and the mobile home needed to be moved. He then spoke to J . Parsons with Code Enforcement and was told she was instructed to post the Not ice . Notice was also sent to the property owners who in turn called him. Mr. Duncan testified he called Lance Smith and Charles Petty to schedule a meeting . At the meeting , M r. Smith and Mr. Petty asked when the home would be removed , and Mr. Duncan advised them that he was at the meeting to discuss the problems and how they could be corrected. He was advised that the City wanted the home moved because it was a mobile home. Mr. Duncan informed staff he had received a copy of the Notice from the Magees , but did not concur that the house was a mobile home, rather it was a manufactured home. He was then asked questions relating to manufactured housing and whether he had installed similar housing in other municipalities in the Metro area. He informed staff that he has installed them in Denver, Jefferson County, Sheridan, Adams County , and many other areas . Mr. Duncan further testified that Mr. Daly contacted the City of Denver and inquired whether mobile homes were allowed in residential areas . According to Mr. Daly , the City of Denver replied "no ." He reiterated that manufactured housing is different from a mobile home. The City and County of Denver Municipal Code specifically addresses USC and HUD manufactured housing --both are acceptable installations within the City. Further, the City inspectors have no jurisdiction within side the home. The inspectors only inspect exterior items and site improvements --water, sewer, foundation, etc . They only look for the HUD label or the State of Colorado label. Ms. O'Brien stated she understood the house was constructed to HUD standards and asked if it was possible to bring it into compliance with the USC. Mr. Duncan stated that in some areas the HUD requirements are more stringent than USC. Ms. O'Brien clarified that she was asking about the areas that were not in compliance with USC; if the HUD standards were more stringent than by definition it already meets the USC. She continued by stating that there are differences between the two standards and in some areas HUD is not more stringent. Mr. Duncan stated that was correct. Ms. O'Brien asked what could be done to the house to bring it into total compliance with the USC which is currently applicable in the City of Englewood. Mr. Duncan replied City staff may need to address the d ifferences between the Code used by the City of Englewood and the HUD standards. Ms. O'Brien asked him if he was a licensed contractor in Englewood and what year USC the City used. Mr. Duncan replied he was licensed in Englewood and the City uses the 1994 USC . Ms . O'Brien asked if he was familiar with the 1994 USC. Mr. Duncan responded that he was familiar with the Code in the areas he deals with, such as structural; however, he has not installed stick built homes in the City of Englewood and would not be familiar with all details of the 1994 Code . Ms. O'Brien inquired if he was familiar with the Englewood Ordinances applicable to constructing this type of unit within the City of Englewood. Mr. Duncan stated he was. Ms . O'Brien then asked who signed 5 the building permit. Mr. Duncan responded he did. Ms. O'Brien clarified that by signing the permit, he accepted full responsibility that all work done under the permit would comply with USC and all other applicable Englewood Ordinances. Mr. Duncan reiterated that for the work performed under the permit --the foundation --he understood. Ms. O'Brien asked if the building permit was the widest permit. Mr. Duncan answered the building permit does not include the plumbing, electrical, or mechanical. The building permit covers the structural part of the home; if it is stick built, it would include the framing, roofing and the lighting. Ms. O'Brien asked what it meant to him when he read the home had to be in compliance with the USC. Mr. Duncan stated the permit does not indicate that the home has to be in compliance with the USC. Reading from the building permit, Ms. O'Brien cited "For all work done under this permit, the permitee accepts full responsibility for compliance with the Uniform Building Code and all other applicable Ordinance." She then asked Mr. Duncan to explain what that meant to him. Mr. Duncan explained it meant that the foundation construction, the water, sewer, plumbing, and electrical all had to meet the USC, Uniform Plumbing Code, and NEC. Ms. O'Brien asked if those items met the USC. Mr. Duncan replied the work constructed outside of the home was in compliance with USC. Ms. O'Brien clarified the Board should only be concerned with the interior of the home. Mr. Duncan stated that was correct; the superstructure versus the substructure. For clarification, the superstructure is the house itself. Ms. O'Brien asked why the modular home should be held to a different standard than any other permanent residence within the City. Mr. Duncan stated he didn't know how to respond to that question; he doesn't make up the Municipal Code. Ms. O'Brien stated that what he was arguing is that it's okay this home was built to HUD standards; but if she digs a hole, lays a foundation, does a basement for a "regular" permanent residence, she has to meet USC. Mr. Duncan stated that was correct. Ms. O'Brien asked if he could clear up her confusion. Mr. Duncan explained he believes HUD must "tie in" the Fair Housing Act into their standards, and the federal government decided separate standards could exist. Otherwise a separate Code wouldn't have been created; the federal government sets the standards and he couldn't address why they are different. Ms. O'Brien directed Mr. Duncan's attention to page three of the plan review summary attached to the permit and recited: "Modular home to have a Colorado Seal of Inspection permanently attached to the structure." She asked Mr. Duncan if he understood the meaning of "Colorado Seal of Inspection." Mr. Duncan reiterated that because Colorado Division of Housing oversees both the HUD and the State certification, it didn't mean any difference to him. Ms. O'Brien asked if he reviewed the applicable State statutes or regulations. Mr. Duncan replied he has information from the Division of Housing explaining the differences between HUD and State. Ms. O'Brien asked how the City could have communicated their expectations clearer. Mr. Duncan replied that if the City had stated the house must be manufactured to the Uniform Building Code, it would have thrown up a red flag for him because he was aware it was a HUD home from talking with Oakwood. 6 • • • • • • Mr. Smith asked whose seal was on the home. Mr. Duncan stated it was a Colorado HUD seal. The Colorado Division of Housing oversees the HUD program, so their seal indicates that it is manufactured to HUD standards. Mr. Smith asked if the seal is issued by the State or the federal government. Mr. Duncan replied that it is issued by the State. Mr. Smith clarified that the house does in fact have a Colorado Seal of Inspection. Mr. Duncan answered that the State issues the seal, and they do the inspection. Mr. Seymour asked if there was a different seal for UBC standard --one that looks different. Mr. Duncan replied that the Division of Housing has two different seals, one for HUD and another seal for UBC. Mr. Seymour asked whether this house had a UBC seal. Mr. Duncan responded this house was built to HUD standards. Mr. Smith clarified that both seals are issued by the State. Mr. Duncan stated that was correct. Mr. Seymour stated a HUD seal doesn't necessarily mean the house is built to UBC standards. Mr. Duncan replied that it would be built to HUD standards. Mr. Seymour asked if there are areas in which the HUD standards are less than UBC standards. Mr. Duncan stated that there are. Mr. Smith asked for the exit width of the subject house. Mr. Duncan stated it was 36"; Mr. Seymour stated it was 34"; he measured the door. Mr. Smith asked for the minimum ceiling height. Mr. Duncan stated it varied due to the vaulted ceiling, and he had not measured it. If it were built to HUD standards, the minimum would be 7 feet. Mr. Smith stated that if it were built to UBC standards, the minimum ceiling height would be 7 feet 6 inches. Mr. Smith asked if he knew the height of the doors and windows. Mr. Duncan stated that he did not measure them . Ms. O'Brien asked if any efforts had been made to determine what would be needed to bring the home into compliance with UBC. Mr. Duncan stated that he had a sheet showing the differences. Lighting for HUD is 8%; UBC 10%. Mr. Smith stated the Board had a sheet showing the differences, but he is interested in the differences in this home. Mr. Duncan stated he wished the City had specifically stated their concerns between the two Codes, rather than citing it as a mobile home. Mr. Smith informed Mr. Duncan that he had some responsibility as well; he cannot plead ignorance on these issues --he placed the house. Ms . O'Brien stated the City was very clear in its January 12 letter to the Magees, which states if the house is constructed to UBC standards, they were to provide a label or certificate stating so. Ms. O'Brien stated the matter boils down to the difference between HUD standards and UBC standards, and she can tell that from the documentation she has received. Mr. Duncan stated the City did not send him a letter; he saw the letter for the first time tonight when he talked to Mr. McKinnon. Mr. Duncan testified it would not be economically feasible to bring the home to UBC standards. There are certain items that are life safety issues which could be addressed. Smoke detectors could be installed per UBC without financially "strapping" the applicants. Relocating the water heater, which is one of Mr. Daly's concern, would be an economic issue due to repiping. Ms. O'Brien asked where the water heater was currently located. Mr. Duncan replied it is in the bedroom. Mr. Smith asked if the water heater was gas or electric. Mr. Duncan responded it was electric . 7 Ms. Davidson showed Mr. Duncan pictures of a "tongue" that was used to convey the home to the property. She asked if the home had wheels on it and how it was brought to the property. Mr. Duncan replied the home has a steel chassis and wheels; it was brought to the site on wheels ; a crane placed the house on the foundation; the tongue was cut off; and the wheels were removed . Ms. Davidson clarified that the house was in two pieces when it was brought to the site. Mr. Duncan stated that was correct. Ms . Davidson asked if the house could have been lifted in the two pieces before it was put together on the foundation . As part of the definition of mobile home , it states it" ... will permit occupancy thereof as a dwelling or sleeping place for one or more persons." Ms. Davidson asked if the house was livable before it was placed on the foundation . Mr. Duncan stated it was not while it was in two pieces. Ms. O'Brien asked if it could have been assembled and left on its wheels. Mr. Duncan responded "yes." Mr. Smith asked if it has a permanent chassis underneath. Mr. Duncan stated there is a steel frame that the house is built on and the wood floor is built over that frame , which is part of the structural floor. Mr. Smith asked what would need to be done to move the home in one piece . Mr. Duncan stated the welds would need to be cut off from the steel plates embedded in the foundation; there are approx imately 40 locat ions where the home is welded down with an average of 2 inch welds , 1/4 inch fillets. If a tornado came through , the foundation and the frame would be left , where many stick built homes would be gone. Mr. Smith asked the d ifference between this home and a st ick built home . Mr. Duncan stated it would be moved the same; the difference is this home would require cutting the welds off; for a stick built home , the nuts , securing the anchor bolts to the foundation , would need to be unscrewed and then could be lifted off the house. It would be more cumbersome to move the Magee 's house due to the number of welds. Mr. Seymour asked if any type of frame for support would be needed . Mr. Duncan replied that like a stick built house , an I-beam wou ld need to be placed underneath the house to keep it from twist ing and splitting the house in half . Mr. Smith asked if the house had a basement. Mr. Duncan replied it only had a crawl space . Mr. McKinnon asked the contractor to address the criteria for a variance. With regard to the first criteria , Mr. Duncan stated structural integrity was built into the home. With regard to the second criteria, he stated the home looks nice in the neighborhood . With regard to the third criteria, he stated it is not possible to determine just by walking by the house whether the house was manufactured to HUD standards or UBC standards. Mr. Smith asked if the house had any other life safety issues. Mr. Duncan stated he believes the smoke detectors are the only life safety issues. Comparing the UBC and HUD standards , there are some differences such as egress windows and doors, but they are not a life safety concern. Mr. Smith asked what the issue was with the water heater; why does one Code require someth ing different? Mr. Duncan stated HUD ventilates it through a plumbing vent through the roof . Mr. Smith asked if it was a life safety issue. Mr. Duncan stated since it is an electric water heater, it is not a life safety issue. • • Ms . O'Brien asked about the horizontal wind load -55 mph vs. 80 mph . Mr. Duncan • stated he checked the HUD label on the house , and the house was constructed to 80 8 • • • mph wind load. Ms. O'Brien asked about the wind uplift --15.8 psf vs. 9 psf. Mr . Duncan responded if it deals with the attachment of the house to the foundation, than this house far exceeds that rating. Ms. O'Brien asked what the wind psf was for this house . Mr. Duncan stated that he didn't see it on the HUD label so he would be unable to answer that question. Ms. O 'Brien asked how he could know that the house far exceeds the rating. Mr. Duncan replied she had asked him if it was 9.1; with regard to the attachments to the foundation to the house, all exceed the UBC according the structural notes on the foundation drawings. Mr. Seymour asked about the roof load. Mr. Duncan replied that the house has a 30 pound live load. Mr. McKinnon stated he had no further witnesses. Lance Smith, Chief Building Official, was sworn in for testimony. Mr. Smith testified the contractor completed the permit application indicating a single family detached or duplex modular. When the permit was issued, it was issued for a foundation only for a modular home. Part of the problem has been defining "modular" and within the last few days, he received a booklet from ICBO which defines modular. Mr. Smith presented copies of the booklet to the Board and Mr. McKinnon. Mr. Smith continued by testifying that there has always been a lot of confusion between the different terms -- manufactured housing, factory-built, modular, etc. ICBO, in the preface, states that factory-built are sometimes called modulars are designed and constructed per the UBC . Ms. Davidson asked about the phrase "and other related codes ." Mr. Smith replied that refers to the Uniform Plumbing Code, Uniform Mechanical Code, and National Electric Code. Boardmember Smith asked if it included the HUD Code. Mr. Smith responded that it didn 't indicate either way and admitted it was confusing . Mr. Smith testified the plan review summary indicates the contractor was notified that the house needed to bear a Colorado State Seal of Inspection. The HUD label bears no reference nor states who inspects the home; it only indicates that it has been inspected in accordance with the Department of Housing and Urban Development (HUD). The State of Colorado does inspect both types of housing. The UBC home is the only one that bears a Colorado State Seal and states that it is inspected by the State of Colorado. Boardmember Smith confirmed that both types are inspected by the State . Mr. Smith stated that was correct. Boardmember Smith asked if the home had a Colorado Seal of Inspection permanently attached to the structure. Mr. Smith stated it did not. Boardmember Smith asked who issued the seal. Mr. Smith replied the federal government issues the seal, the State does the inspection, and then applies the federal label. The federal government supplies the State with the seal for HUD homes and the federal seal is applied by the State. Ms. O'Brien clarified that the State inspects the HUD homes and then applies the federal seal. Ms. O'Brien asked for a description of the State Seal of Inspection and if there was a discernible difference between the two seals. Mr. Smith stated it is usually a blue seal and is typically posted inside the home --in a closet, under the sink, in a cabinet. He 9 referred the Board to a picture of the seal located in their packet which clearly shows • the State of Colorado insignia seal. Boardmember Smith stated a contractor might be able to distinguish the difference, but asked how the homeowners would know the difference. Mr. Smith replied the homeowners probably wouldn't know the difference, but the permit was issued to the contractor. Boardmember Smith asked if the contractor should know the difference between the two seals. Mr. Smith responded that he assumed a contractor would. Boardmember Smith asked how many modular homes, either UBC or HUD, had been constructed in the City in the last five years. Mr. Smith replied that within the last five years since he has worked for the City, a HUD home has never come into the City; they have all been UBC labeled. Boardmember Smith asked how many of those had been brought in. Mr. Smith replied approximately five or six. Ms. O'Brien asked why the City cared whether a house met UBC or HUD standards. What is wrong with HUD standards from the City's perspective? Mr. Smith responded the City has adopted the UBC as a measure to which all homes are to be constructed. Ms. O'Brien clarified that the point of having the UBC is to have a standard measure applicable to all buildings within Englewood. Mr. Smith stated that was correct. Mr. Seymour asked if the home met those standards; if not, where not. Mr. Smith stated that from the information provided to him by the State of Colorado, it does not meet USC standards. Boardmember Smith asked where it specifically did not meet those standards. The board has a list of the comparison between HUD and UBC, but he would like to know where those standards are not met for this particular home. Ms. • O'Brien also asked why the home was being compared to a 1991 UBC rather than 1994. Mr. Smith responded the differences between the 1991 and 1994 USC are probably not applicable in this situation, but he wasn't absolutely sure. Mr. Smith continued that by quickly looking at the 1991 UBC requirements for this house, he did not find any that had changed. The UBC still requires the minimum 36 . inch egress door; 5.7 square feet egress windows. Light, ventilation, and ceiling heights have not changed. Boardmember Smith asked if he had measured anything in the home. Mr. Smith replied that he had not, but measurements were taken at Oakwood Homes on a comparable model with different floor plan, but of a similar style. Boardmember Smith asked why he didn't take measurements in the applicants' house. Mr. Smith replied that he and his staff only go onto private property when invited and inspections are requested. The only inspection on the home was done by the State inspector. Ms. O'Brien asked what needs to be done to the home to bring it up to UBC standards. Mr. Smith replied that since these homes are inspected by the State, he and his staff have no jurisdiction to go within the home to complete an inspection. In conversations with the State, he concurs with the contractor that it is not economically feasible to bring the home up to USC standards; there are too many differences as the comparison sheet indicates. Ms. O'Brien stated she understood the difference between the design criteria, but she wants know which of those are applicable to the subject home. Mr. Smith responded that he asked Oakwood Homes for specifications on this house, but he was denied. Boardmember Smith stated HUD requires 30 psf for roof live loads, but UBC requires 20 to 120 psf. The house obviously meets that criteria. • 10 • • • Ms. O'Brien stated the smoke detectors are a non-issue; they can be placed in every room of the house with minimal cost. With regard to the wind load horizontal, his staff report he indicates 55 mph for HUD and 80 mph for UBC. She asked what the significance of that difference. Mr. Smith stated the wind load horizontal is the amount of wind the structure will withstand before damage occurs. A UBC home in the City is required to have an 80 mph minimum, which converts to 22.6 psf. A corner of a home will resist a greater wind force than the exterior wall of the home. Ms. O'Brien asked what "wind uplift" referred to. Mr. Smith stated it is the wind as it pushes up against the eaves of the roof; it must be designed to a certain measurement to withstand uplift loads; similar to a patio umbrella on a table where a wind uplift will raise the umbrella out of the table. Boardmember Smith stated the contractor indicated this house met the 80 mph standard. Mr. Smith reiterated that he had no particulars on this unit, even though he requested it from the manufacturer. The manufacturer was unwilling to give him the specifications on this unit, and the only information he has is the design criteria supplied to him by the State. Chair Bode asked Mr. Smith to define, in layman's terms , what the City considers to be a mobile home and whether the City considers this home to be a mobile home . Mr. Smith stated there is information in the Board's packet showing it originally was called a mobile home and was later changed by an amendment to that Act to the term "manufactured home." The definition is the same for a manufactured HUD home as it is for a mobile home. It is built on a permanent chassis; it is designed to be moved about; and designed to be used with or without a foundation. This home can be pulled apart much easier than a conventional home. It can be separated into two pieces, plates put on it, wheels put back on, and the tongue welded on. Boardmember Smith asked if he had ever done that to one of these homes. Mr. Smith replied that at one time he lived in a doublewide mobile home for several years, and he moved it from Brighton to Thornton. Boardmember Smith stated the contractor indicated it was just as difficult to move this home as any other type of house. Mr. Smith stated that his mobile home , however, was not welded to a foundation. A crane would be needed to lift this home off the foundation, but it could be done. Ms. Davidson stated the City 's definition of a mobile home states "any vehicle used or so constructed to permit it being used as a conveyance upon the public streets or highways and duly licensable ." She continued by stating she was having difficulty seeing this home as a licensable conveyance, which is part of the definition within the City Code. Mr. Smith agreed that the City's definition is outdated. Ms. Davidson asked if it was his contention that this particular house meets that definition of a mobile home. Mr. Smith replied that based on the changes to the state law where a mobile home and manufactured home are defined to be the same , he tried to find a correlation. Mr. Smith stated he was using information from Codes that the City has adopted. Boardmember Smith stated that he appeared to be using all information which indicates the house is a mobile home rather than a manufactured home. Mr. Smith agreed the home is a manufactured home, but UBC and HUD homes are considered manufactured homes . 11 Boardmember Smith stated he appears to be using definitions that place this home • under HUD rather than UBC. Ms. O'Brien asked that assuming the house is not a mobile home, would it need to meet UBC. Mr. Smith replied it would. Ms. O'Brien asked if it met UBC. Mr. Smith replied that it did not. A short recess of the Board was declared by the Chair. The meeting reconvened; all Board members were present. Mr. Smith asked if Mr. Seymour measured anything on the house other than the door. Mr. Seymour stated he only measured the door because he wanted to determine that it didn't have a 24 inch door and whether fire personnel would be able to get into the home with their gear and bring a person out on their back. Ms. O'Brien disclosed that in the past she may have represented Gillans, but did not meet anyone from their business. Further, it will not affect her ability to a fair decision. Mr. McKinnon asked the Chair if he could briefly summarize. He stated the Ordinances of a City are not just meant for contractors and professionals but are meant to inform lay people that are not familiar with Code but who have the right to rely on those Ordinances. The letter specifically states that his clients allegedly were in violation of • the Ordinance due to the City defining a modular home as a mobile home. He reiterated that the home cannot be licensed. It is important because it goes to the entire definition, and Mr. Smith was very candid when he admitted it was outdated. Mr. McKinnon stated his clients should not suffer because the definition is outdated. If the Board determines the house is in fact a mobile home pursuant to that definition, then so be it. Mr. Seymour asked if he was requesting an appeal or a variance. Mr. McKinnon stated that if he read the Ordinance correctly, the Board can grant either an appeal or a variance. He feels the appeal is appropriate; however, he does not want to miss the opportunity for a variance and that is why he asked the contractor to address the three criteria for a variance. Mr. Seymour asked the Assistant City Attorney if the Board can grant a variance in this situation. Ms. Reid responded the Board has authority to grant a variance to the Housing Code. For clarification, a variance under the Zoning Code requires posting and publication; however, the Housing Code states that someone may appeal and the Board of Adjustment has the authority to grant the appeal or the Board of Adjustment may grant the appellant a variance. The Board, therefore, has the power to grant the variance without anything further notification. Ms. O'Brien stated that if the home is not a mobile home, then what the Board is faced with is a dwelling unit that doesn't meet the UBC, which has been adopted as the standard for all dwelling units in the City of Englewood. She asked Mr. McKinnon to assist her in overcoming that obstacle. Mr. McKinnon replied that is what the variance is for; a variance means it varies from what may be required by the City in total. The • 12 • • • Board has the right to put conditions on the variance, such as life safety factors. Ms . O'Brien stated the Board has three items to overcome before it can grant a variance. She asked how the home was in harmony with the spirit and purpose of this Title when she is being asked to find the house as a dwelling unit and then to find that USC doesn't apply to this dwelling unit. What exceptional circumstances exist? Mr. McKinnon stated when this process started, he believed the appeal was the correct course of action because the house is not a mobile home as defined in the Code. If the Board believes the appeal is not appropriate, he asked the Board to consider a variance with conditions if necessary. Ms . O'Brien asked if his clients would allow the City to inspect the interior of the home to determine any life safety issues, and if they would correct those items. Mr. McKinnon conferred with his clients. Boardmember Smith clarified that assuming the home were not a mobile home, it did not meet the Uniform Building Code. Mr. Smith stated that was correct. Boardmember Smith asked what portions of the UBC would the home not meet, assuming it were not a mobile home but rather stick built. Mr. Smith stated the requirements for smoke detectors which is located in the minimum standards for Type R occupancy of the UBC. Boardmember Smith asked him to explain the difference. Mr. Smith stated the applicants' house only has one smoke detector outside the bedroom in the hallway. Boardmember Smith asked what the requirement was for a new home constructed in Englewood. Mr. Smith stated the minimum requirement is one in each bedroom, one in each room or hallway giving access to a bedroom, and one on each level. Boardmember Smith clarified that requirement was for any home. Mr. Smith replied "yes." Boardmember Smith asked how he knew how many smoke detectors are in the house if the City has not been inside this home. Mr. Smith stated that previous testimony indicated only one detector located in the hallway. Boardmember Smith asked what other portions of the UBC would it not meet. Mr. Smith responded it would not meet the structural design criteria for horizontal wind load. Boardmember Smith asked what the horizontal wind load would be for his house. Mr. Smith replied that Englewood has an exposure C which is 80 mph or 22.6 psf. Boardmember Smith stated the contractor testified this home met that requirement. Mr. Smith stated no documentation was provided to verify that statement. Further, egress window requirements would not be met. Boardmember Smith asked if he knew what the subject house has for egress windows. Mr. Smith stated that based on what was looked at as a typical model the manufacturer makes, they are 5 sq. ft. and UBC requires 5.7 sq. ft. The UBC also prohibits a water heater in a bedroom. There are other minor items such as light and ventilation. Boardmember Smith asked if there was a light requirement for a newly constructed stick built house. Mr. Smith replied "yes." Boardmember Smith asked if he knew what this house had for lighting percentage. Mr. Smith replied he did not because he did not receive the standards from the manufacturer as he requested. Mr. McKinnon stated his clients were agreeable to allowing the City to inspect the home, determine any life safety issues, and correct those items. He further stated the contractor informed him that it could be done. Chair Bode asked Mr. Smith if that could be done. Mr. Smith responded that it could not meet all the requirements of the UBC . Ms. O'Brien asked if the house could be modified to meet all the life safety issues. Mr. 13 Smith stated that having not been in the home, at this time there are only three or four • items that he considers to be life safety. One of those items is the smoke detectors. If the manufacturer were willing to supply the City with specifications for the house, he could better evaluate. Mr. Smith continued by stating if the water heater is electric, it is not a life safety issue. A gas water heater will deplete the room of air, but an electric does not have the same features. His inspector believed it was a gas water heater, so that would need to be verified. Mr. McKinnon stated if the water heater were in fact gas, the applicants would move the water heater and are willing to do whatever is necessary to correct the life safety issues. Chair Bode stated that the comparison of design criteria of HUD and UBC are minimal requirements. He asked if a lot of the UBC requirements could be met in this house; but because the City has not received any information from the manufacturer, we don't know. The contractor responded that was correct. Chair Bode asked if he could get the specifications for this house since the manufacturer was unwilling to provide them to the City. Boardmember Smith asked if he had the manufacturer's specifications. Mr. Duncan replied that it was submitted with the City plan but didn 't know if it went into that much detail. Chair Bode asked if the manufacturer's specifications indicate the light percentage for a particular house. Since there are minimum requirements to obtain a HUD seal, someone must do the calculations. Mr. Duncan stated he believed the only way to obtain that information is by going to the Oakwood factory, locating the specifications for the serial number to which this house was manufactured, and correlating it back to the design. That would be the easiest way to obtain the information rather than having a contractor or inspector going through the home and • calculating those items. Chair Bode reiterated that is the information he is looking for and wants to know if it can be obtained. Boardmember Smith asked the how light in a room is measured. Mr. Smith replied it is measure d based on the sizes of windows. Mr. Smith continued by stating that drawings are submitted to the State for approval; the State reviews all the calculations and requirements; and the State determines if the house meets the minimum requirements and then affixes the seal. Chair Bode asked if the Board could obtain those figures. Mr. Duncan reiterated that the information can be obtained at the plant. There is a standard for this particular model submitted to the State for the approval process; however, those specifications can be varied for a particular home depending on the local requirements. In Gilpin County, a roof is required to have an 80 pound live load. The roof is then changed at the factory to meet the 80 pound live load, and it should be documented at the factory. Ms. Davidson asked why the permit does not specify State of Colorado/USC. Mr. Smith replied the contractor was told it must bear a State of Colorado Seal and obviously the home he is providing does not bear any reference to the State of Colorado or have a State Seal insignia. Mr. Duncan stated that Oakwood supplied the home. There were no other persons present to testify for or against the appeal. Chair Bode incorporated the staff report and exhibits into the record and closed the public hearing . Mr. Seymour moved; 14 • • • • Mr. Smith seconded: THAT FOR CASE #2-99, YATAKA AND MELISSA MAGEE, 101 W. LAYTON AVENUE, THE APPLICANTS BE GRANTED AN APPEAL TO THE ENGLEWOOD MUNICIPAL CODE, SECTION 9-5-2B "USE OF MOBILE HOME". Mr. Seymour stated that on an appeal the rules are clear; the Board stands in the shoes of the Building Official. Mr. Smith stated that was not necessarily true for the Housing Code which seems to give the Board more authority. Mr. Seymour stated he agreed with the building official's interpretation. Ms. O'Brien stated she also agreed. Ms. Davidson stated that after reviewing the City materials that state "constructed to satisfy all provisions of the Uniform Building Code and other related codes", she was having difficulty deciding if the home was a mobile home. Other related codes could be HUD. Ms. O'Brien stated that particular material was provided by an outside entity and was only provided to the City recently. Ms. Davidson continued by stating the home cannot be licensed which is part of the City's definition of a mobile home. Mr. Smith stated that another part of the definition is vehicle, and another section of the Ordinance defines vehicle as "any device which is capable of moving itself or of being moved from place to place upon wheels or endless tracks." He stated he had a lot of trouble with the City's definition as well. Ms. O'Brien stated if it isn't a mobile home, it is a dwelling which must meet the UBC; HUD doesn't apply. HUD is not the City's standard. The applicants best case was that it was a mobile home and met HUD standards. She continued by stating that the problem arises out of changing technologies wherein there is now manufactured housing. From the guidelines provided to the Board, she stated some of these modular homes conform to all the UBC provisions; therefore, no problem. Other modular homes only conform to HUD. The City has decided that dwelling units must meet UBC; therefore, what Mr. Smith did was reasonable, and she has no trouble understanding how he decided the home was a mobile home. She agreed that it is not explicit and perfect, but feels it is reasonable. Mr. Smith stated he did not disagree with Ms. O'Brien that it was a reasonable decision; however, the applicants' position is just as reasonable. If the City's definition of a mobile home is strictly followed, this house is not a mobile home. Ms. Davidson asked for clarification: If the Board decides the house is not a mobile home, can the City ask the applicants to move it because it doesn't meet UBC. Ms. O'Brien stated that was correct. Mr. Smith stated he would be inclined to grant a variance, conditioned upon the life safety issues being corrected. Thus, eliminating the Board's quandary of whether it is a mobile home, manufactured home, or modular home. Discussion ensued. Mr. Seymour expressed his concern in a future owner replacing the current electric water heater with a gas water heater. Ms. O'Brien suggested a condition of either 15 moving the water heater or requiring it ~o remain electric. Mr. Seymour stated he didn 't like the water heater being located in the bedroom regardless. Discussion ensued. Mr. Smith offered a substitute motion that would grant the applicants a variance conditioned upon smoke detectors being installed per USC; the water heater being moved out of the bedroom; staff inspect the home for life safety issues; and the applicants correct those items found by the City. Mr. Seymour stated he had no objection to changing the motion and withdrew his original motion. Mr. Smith moved; Mr. Seymour seconded : THAT FOR CASE 2-99 YATAKA AND MELISSA MAGEE , 101 W. LAYTON AVENUE, THE APPLICANTS BE GRANTED A VARIANCE FROM ENGLEWOOD MUNICIPAL CODE , SECTION 9-5-28 "USE OF MOBILE HOME" WITH THE FOLLOWING CONDITIONS: 1. Smoke detectors to be installed in the home to meet 1994 Uniform Building Code ; 2. Water heater to be moved out of bedroom ; 3. City staff be allowed to inspect the home and determine life safety issues; and • 4. The applicants will correct all life safety issues as determined by City staff. • Mr. Seymour stated the Board knows very little about this house. Chair Bode stated he has the same concerns ; the Board doesn 't have any numbers for this house . Mr. Smith stated if the applicants and the City cannot agree on what constitutes a life safety issue, the applicants can appeal the City's decision to the Board. The Board would then make the determination of whether it is a life safety issue. Ms . O'Brien reiterated that the Chief Building Official acted very reasonably, and his concerns were extremely appropriate. She stated her view of the situation is: an aesthetically pleasing dwelling , a young couple wish ing to move in , and the Board trying to make it work ; therefore , the applicants must be reasonable with the City , and of course , the City will be reasonable in identifying the life safety issues . Mr. Seymour stated the Board has 30 days to make a decision , perhaps the Board should make their decision at the next meeting and review the documentation further . Mr. Smith stated he believed there was no reason for the applicants to return if they and the City can agree on the life safety issues , and as long as the applicants correct those items . Discussion ensued. Chair Bode asked if the Board can legally grant the applicants a variance. Ms. Reid stated it could. Further, she informed the Board that procedurally if a decision is not made, the case would need to be continued. If the Board grants the variance conditioned upon the life safety issues being corrected , staff • would inspect the home and the applicants would correct or repair any life safety issues 16 • • • that are found. If the applicants and the City are unable to reach an agreement, the applicants may appeal that decision to the Board. Ms. Reid reminded the Board that this case is not a zoning variance; it is a housing variance, and it does not have to be published and posted. Discussion ensued. Ms. Reid stated that variances do not set a precedent; they are site specific. Ms. Davidson stated she was having difficulty justifying the second criteria --"The variance will be in harmony with the spirit and purpose this Title." She stated she believed the purpose of the Title was to restrict mobile homes to specified mobile home parks. Granting a variance in this case then wouldn't be in harmony with the Title. She asked other board members how they justified that criteria. Ms. O'Brien stated she is not considering the "mobile home" issue; she is treating it as a house which does not meet UBC as required. The Board is requiring all life safety issues addressed by the UBC are to be met; and therefore, she believes the spirit and purpose of the UBC is met. Mr. Seymour stated the spirit will not be destroyed by granting a variance for one home; it will not set a precedent. Discussion ensued. With no further discussion, the secretary polled the members' votes. Mr. Seymour stated he voted "yes"; a difficult issue will be resolved by bringing the home into UBC compliance on life safety issues. Ms. Davidson stated she voted "yes"; the Board is considering the entire dwelling at once. By requiring the applicants to bring the home into UBC compliance on life safety issues, the variance is in harmony with the spirit and purpose of the Title. The variance will promote the mental health of the applicants. It will not hurt the mental health of the neighborhood. The home does not stand out as a mobile home in the neighborhood. Mr. Smith stated he voted "yes" concurring with Ms. Davidson. He further stated that he agreed it does not interfere with the appropriate use of other portions of the dwelling or any other property in the surrounding neighborhood. Ms. O'Brien stated she voted "yes" concurring with Ms. Davidson and Messrs. Seymour and Smith. She further stated that she believes staff faced a difficult choice and acted highly . appropriately. The three criteria are met so long as the life safety issues are addressed, which is the purpose of adding the conditions. Mr. Aasby stated he voted "yes" concurring with his fellow board members. He further stated that he agreed with the City's decision, but does not believe the Board needs to force a hardship on the applicants. He believes the matter now can be resolved by the staff and applicants by addressing the conditions. Chair Bode stated he voted "yes" concurring with his fellow board members. He stated he believes it is a mobile home, and therefore, would not have voted for an appeal. AYES: Bode, Davidson, O'Brien, Aasby, Seymour, and Smith 17 NAYS: ABSTAIN: ABSENT: None None Mcintosh The Chair announced the case granted by a 6-0 vote. Mr. Smith stated the meeting was a special meeting to hear only the continued case. He suggested amending the agenda to remove the remaining items. There was no further business brought before the Board. The meeting was declared adjourned at 9:45 p.m. 18 • • •