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HomeMy WebLinkAbout1999-04-14 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS April 14, 1999 I. CALL TO ORDER The regular 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 (a rrived at 7:4 sJ, O'Brien, Aasby, Seymour, Smith Members absent: None (Secretary's Note: One vacancy) Staff present: Nancy Reid, Assistant City Attorney Tricia Langon, Planner Chair Bode stated that there were five members present ; therefore, four affirmative votes will be required to grant a variance. Chair Bode stated that the Board of Adjustments and Appeals is empowered to grant 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. PUBLIC HEARING -CASE #3-99 Richard Patty 4744 South Mariposa Drive Chair Bode declared the Public Hearing open , stating he had proof of publication. He introduced the case by stating it is a variance to construct a 200 square foot storage shed without a principal structure on the lot and to exceed the allowable floor area of an accessory shed by 50 square feet. This is a variance from Section 16-4-2:M.2, Storage Sheds and Section 16-4-2:M.2b , Maximum Total Floor Area , of the Comprehensive Zoning Ordinance . Mr. Smith asked if the public hearing would cover both variances and if they would be voted on separately. Chair Bode stated that was correct. Mr. Seymour disclosed that he was acquainted with Mr. Patty. Mr. Patty has never given him any vegetables, but he has, however, bought corn from him. He stated that his acquaintance with Mr. Patty would in no way prejudice his findings. 1 Richard Patty, 4600 South Lipan Street, was sworn in for testimony. Mr. Patty testified that the property in question is located at 4744 South Mariposa Drive. He and his wife purchased the property approximately 28 years ago for the purpose of gardening. At that time, he did sell the vegetables, but does not do so any longer. At the present time, he testified he is only working part time and has time to work in the garden. He has "dreamed" of building a house on the property, but currently it is a garden. In fact, some of the neighbors garden there as well. Mr. Patty stated that it is increasingly difficult to maintain the equipment and supplies needed for the garden without adequate storage. A neighbor on Lipan provided him with a 6' x 8' playhouse approximately 20 years ago after his children outgrew it, and Mr. Patty testified that he moved it onto the property without any thought of it being illegal. He stated that he has used the playhouse for storing the garden equipment, but it is no longer adequate; equipment is still outside and is deteriorating. He stated he was asking permission to erect a building that can be used for supporting the garden. Gardening is an activity which is legitimate and appreciated by the neighbors. The property is located two blocks from his house and is a double-sized lot. Mr. Patty further testified that he wishes to construct a 200 square foot storage shed without a principal structure on the lot. Mr. Patty stated the supporting justification is contained in the Board's packet. He reiterated that gardening is an important activity in his life, and he does it with a passion and wishes to do it in a way that contributes to the welfare of the neighborhood. Secretary's Note: Ms. Davidson entered the meeting. Mr. Seymour asked why he was requesting 200 square feet. Mr. Patty responded that an accessory building could be built to 200 square feet, and he believed the shed would qualify as an accessory building. The problem with limited space is that it gets filled up and there is no space to work on the equipment. He testified that he wasn't thinking of it as a storage shed, but rather as a work building. Due to the size of the property, he doesn't believe it is unreasonable to have a building that size and he can make very good use of that space. Mr. Seymour asked if he would want it any bigger. Mr. Patty stated that 200 square feet would be sufficient. The length of the building would also match the neighboring garage on the adjoining lot. Mr. Seymour asked if it would affect the neighboring property's view. Mr. Patty stated it would not. Mr. Smith asked if he planned to have electricity in the building. Mr. Patty stated that there is no electrical service available on the lot; however, he would like to inquire whether it would be possible. He stated he needs the building regardless of whether there is ever electricity to it. Mr. Patty stated the neighbors were present to support the variance. Chair Bode stated seven people were signed in to testify in support of the variance. Chair Bode explained • • that the Board wants to hear each person's testimony, but the Board has five criteria it • must justify before it grants a variance. The Board wishes to hear both favorable and 2 • • • unfavorable testimony with regard to those five criteria; however, the Board does not need to hear it seven different times. If a person does not have anything to add to the previous person's test imony, Chair Bode asked that they not testify. John England , 4820 South Lipan, was sworn in for testimony. Mr. England stated he had a biased opinion --his daughter and wife think gardening is great therapy. He personally feels it is a lot of work. Mr. England testified that Mr. Patty would be constructing the building on the rear of the lot and believes that once the corn and sunflowers are grown , the bui lding wouldn 't be seen from the street. Further he stated the shed would be an asset to the property . Chair Bode asked if any of the other neighbors had anything to add to Mr. England's testimony or if they were here to support the variance. Chair Bode asked for a "show of hands " of those who supported the variance. Eight people raised their hand indicating they supported the variance request. Tricia Langon, Planner, was sworn in for testimony. Ms. Langon stated one letter of opposition was received too late to be mentioned in the staff report; however, it was inserted into the Board's packet. Mr. Seymour asked for clarification on the rationale behind not allowing an accessory structure without a principal building. Ms. Langon stated there were two reasons. First, an accessory shed is no t a permitted principal use in a R1 A district. Second, the def init ion of an "accessory structure " states it is subordinate and incidental to the principal structure. Mr. Seymour asked for a practical reason for the regulation. Ms . Langon stated the Ordinance was written in such a fashion to prevent sheds and garages from becoming the primary or only structure. The principal use for this zone district is sing le family residence , not sheds , garages , gazebos , etc. Mr. Aasby stated he wanted a playhouse, and a permit isn't required if the playhouse is under 200 square feet. Ms. Langon replied that playhouses are not a listed use , and it is not something zoning regulates . Mr. Aasby stated if the applicant had indicated he was building a playhouse rather than a shed , he wouldn't be before the Board for a variance. Ms. Langon stated that wasn 't correct; a playhouse, as an accessory structure, would still need to have a primary structure. She clarified that the applicant's size request is because it exceeds the 150 square foot maximum for a shed. The 200 square feet wh ich Mr. Patty referred to is the maximum square footage for "other" accessory structures such as the gazebos and tea houses . Mr. Smith stated the staff report indicates variances are not time specific; can the Board put time conditions on variances? Ms. Langon stat ed variances run with the land. The Board can condition the variance on items that are specific to the shed , such as the size and placement, but not to time or property owners. Ms. Reid agreed; variances run with the land. Once the Board grants a variance, it stays in effect. The Board can put such condit ions on the variance , but the conditions would not be defensible. She stated she recently did research on the subject due to a former Board conditioning a 3 variance to the current owners. Mr. Smith stated he recalled a recent case wherein the applicant came back for a reinstatement of a variance. Ms. Reid clarified that case came back before the Board due to the applicant not obtaining a b'uilding permit within the required 180 days . There were no other persons present to testify for or against the variance. Chair Bode incorporated the staff report and exhibits into the record and closed the public hearing . Mr. Seymour moved; Mr. Smith seconded: THAT FOR CASE #3-99, RICHARD PATTY, 4744 SOUTH MARIPOSA DRIVE , BE GRANTED A VARIANCE TO CONSTRUCT A STORAGE SHED WITHOUT A PRINCIPAL STRUCTURE ON THE LOT . THIS IS A VARIANCE FROM §16- 4-2:M.2 , STORAGE SHEDS OF THE COMPREHENSIVE ZONING ORDINANCE . M r. Smith stated he could possibly justify the first criteria , but didn't know about the other criteria. He further stated he wasn 't sure if a variance was even needed ; the Ordinance states an accessory building is permitted . He questioned why the shed couldn 't be an accessory to the lot. Mr. Seymour agreed ; accessory to the lot and his farming . • Ms. O'Brien stated the shed doesn 't "fit" for what the area is primarily zoned. Mr. • Seymour asked if she drove by the property. Ms . O 'Brien replied she did not. Mr. Seymour stated that there is a reservoir next to the property , and the adjacent property owners do not object to the variance. Ms . O'Brien cou ntered that at least one person objects. Mr. Seymour pointed out the objecting person lives two blocks from the property. Mr . Smith stated he did drive by the property . He provided a description of the lot: it ra ises fairly steeply front to back , approximately 40 feet and there is some type of a "berm " 2/3 of the way back that can 't be seen over from a vehicle. He stated he could not see the existing shed from his vehicle. The two houses next to the property are positioned such that they "look away" from the lot, and across the street is the City's reservoir. He stated he believed there was some exceptional topographical conditions . Chair Bode stated he walked the lot , and it is a big lot. He further stated he understood the City's position ; however, there is equipment sitting outside and is worried about children getting hurt . Mr. Rasby stated the proposed placement of the shed would hinder it being seen ; and if in the future a house is built, the shed would be in an ideal location. With no further discussion , the secretary polled the members' votes . 4 • • • • Mr. Smith stated he voted "yes". Exceptional topographical conditions exist on the lot. It observes the spirit of the Ordinance because the Ordinance wasn't necessarily meant to prohibit this use. If granted, it will not adversely affect the adjacent property, rather it would help the adjacent property by storing the equipment "out of sight" and inside a building. It does not substantially impair the use or development of adjacent property because it is already developed. The shed can always be moved if a residence is ever built on the property. It is the minimum variance that affords relief. Ms. O'Brien, Mr. Aasby, Mr. Seymour, _Ms. Davidson and Chair Bode stated they voted "yes", concurring with Mr. Smith. The Chair announced the variance as granted by a 6-0 vote, and directed the applicant to contact the planning division staff for any additional information. Mr. Seymour moved; Mr. Smith seconded: THAT FOR CASE 3-99, RICHARD PATTY, 4744 SOUTH MARIPOSA DRIVE, BE GRANTED A VARIANCE TO EXCEED THE ALLOWABLE FLOOR AREA OF AN ACCESSORY STRUCTURE BY 50 SQUARE FEET TO CONSTRUCT A 200 SQUARE FOOT SHED. THIS IS A VARIANCE FROM §16-4-2:M.2b. MAXIMUM TOTAL FLOOR, OF THE COMPREHENSIVE ZONING ORDINANCE . Mr. Seymour stated he felt there is a fine line between a 150 square foot shed and a 200 square foot accessory structure. Due to the size of the lot, Mr. Seymour stated the additional 50 square feet is not excessive. Mr. Aasby stated due to the size of the lot, the placement and size of the shed would look nice. Chair Bode stated he likes the idea of a smaller shed regardless of whether or not a house is ever built. He does not favor large sheds. Ms. O'Brien agreed; she stated she didn't understand why it needed to be more than 150 square feet. Mr. Smith expressed concern that the building could become a workshop rather than a storage shed. Mr. Seymour stated he believed Mr. Patty was referring to minor repairs on the equipment inside the shed instead of outside in the elements. Ms. O'Brien stated she believes a 150 square foot shed is more than adequate to store the equipment. Discussion ensued. With no further discussion, the secretary polled the members' votes. Mr. Seymour voted "yes." There is enough difference between the 150 and 200 square feet to make it comfortable for the applicant to get the equipment in and out. From the size of the equipment, Mr. Patty needs a 200 square foot shed . 5 Ms. Davidson and Mr. Aasby voted "yes" concurring with Mr. Seymour. Ms. O'Brien voted "no." She stated she was not convinced there was a compelling reason to increase the amount of the storage shed space. Mr. Smith voted "no." He stated granting the shed is the minimum variance, but granting the 200 square feet is not. Chair Bode voted "no", concurring with Mr. Smith. If a house is ever built on the property, the shed will be in compliance. The Chair announced the variance as denied by a 3-3 vote. Ill. APPROVAL OF MINUTES. Chair Bode asked for consideration of the Minutes from the March 10 and March 23, 1999 public hearings. Smith moved, Seymour seconded: • THE MINUTES OF MARCH 10 AND MARCH 23, 1999 BE APPROVED AS • WRITTEN. AYES: NAYS: ABSTAIN: ABSENT: Bode, Davidson, O'Brien, Seymour, and Smith None None None. The motion carried. The Chair announced the motion approved. IV. FINDINGS OF FACT Mr. Smith moved; Mr. Seymour seconded: THAT THE FINDINGS OF FACT IN CASE #2-99, YUTAKA AND MELISSA MAGEE, 101 WEST LAYTON AVENUE, BE APPROVED AS WRITTEN. AYES: NAYS: ABSTAIN: ABSENT: Bode, Davidson, O'Brien, Seymour, and Smith None. None None The motion carried. 6 • • v. STAFF ADVISOR'S CHOICE Ms. Langon stated she had nothing further. VI. CITY ATTORNEY'S CHOICE Ms. Reid stated that in response to Chair Bode's letter, City Council declared a vacancy on the Board. Applications and interviews for the vacancy will be conducted in June. She then distributed the "legal information" the Board requested. She also delivered a copy of the March 19, 1999 Englewood Herald to Ms. O'Brien. Mr. Smith asked the status of last month's variance. Ms. Reid stated that the variance requires the homeowners moving the water heater. As indicated in the Chief Building Official's letter to the Board, the water heater meets the USC. She further stated she expected the applicants' attorney to request the Board to modify the variance , but she has not heard from him. Discussion ensued. Mr. Smith clarified that he believed the Board's intent was that the access to the water heater be other than the bedroom, not physically moving the water heater. If the water heater can be blocked off and accessed by some other means than the bedroom, the Board would be satisfied. The other Board members agreed. Ms. Reid stated she would pass that clarification on to the Chief Building Official. • VII. BOARD MEMBER'S CHOICE • The Board stated they had nothing further. There was no further business brought before the Board. The meeting was declared adjourned at 8:20 p.m . 7