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HomeMy WebLinkAbout2000-01-12 BAA MINUTES' • • • MINUTES BOARD OF ADJUSTMENT AND APPEALS January 12, 2000 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, Carlston, Davidson, O'Brien, Rasby, Seymour, and Smith Members absent: None Staff present: Nancy Reid, Assistant City Attorney Harold Stitt, Senior Planner Kate Newman, Planning Technician Chair Bode stated that there were seven 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 variances by Part III, 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. CASE #14-99 Western Arapahoe County Homeless Alliance 3301 South Grant Street Chair Bode stated Case No. 14-99 was continued from the December meeting; at which meeting, the public hearing was closed. He stated the Board would now discuss the case. At the time of the last meeting, Mr. Smith and Ms. O'Brien had requested items from the City Attorney. The Chair asked if those items had been received. Mr. Smith and Ms. O'Brien stated they had received responses from Ms. Reid. Chair Bode asked Mr. Stitt to update the Board on the Planning and Zoning Commission's decision regarding the conditional use. Mr. Stitt responded that Planning and Zoning Commission held a public hearing on January 4, 2000 to consider a conditional use application for a large or special group living facility. At that meeting, the Commission approved the conditional use application with conditions. The conditions are with regard to facility operations. The church supported the request for 1 the conditional use, and he believes on that basis, as well as other testimony presented, • the Commission approved the application. Mr. Stitt further stated that staff made a determination that the current operation at the Arapahoe House facility is not a group living facility; therefore, only one variance is necessary, which is a variance for reduction in distance from 750 feet to 200 feet. The definition of large group living facility requires that tenancy is arranged on a monthly or longer basis. The function of Arapahoe House Detox Center does not have tenancy of 30 days or more; therefore, it does not fit the definition of a group living facility. Mr. Smith clarified that staff has determined a finding of fact that it is not a group living facility. Mr. Stitt stated that staff made the determination for itself. If the Board wished to make it a finding of fact or make a different determination, it may do so. Mr. Smith stated that he has reviewed the memo from Ms. Reid regarding whether a variance is required in this case. He stated that the last paragraph indicates because it was determined that a homeless shelter is a different activity from the current use, it would not be permitted without a variance for the distance. Mr. Smith asked Ms. Reid if that was not also a finding of fact. Ms. Reid responded that it was her legal opinion. Mr. Smith continued; if the Board determines that a homeless shelter is in fact the same or similar to an alcohol detox center, a variance might not be required. Ms. Reid replied that determination is not the Board's job in this particular case. The Board has been asked to consider a variance. Normally, the Planning and Zoning Commission is the • board which makes the determination as to whether or not a use is a similar use, and therefore qualifying under the nonconforming use. The Planning and Zoning Commission makes the interpretation of definitions. The Board of Adjustment is normally for appeals from staffs interpretation or variances. If the Board finds that it has the authority and feels it is important to this discussion, it can certainly make the determination. Mr. Smith stated that the Board of Adjustment could not find as a matter of fact that a homeless shelter is not different. Ms. Reid stated that the Board could make that finding of fact; she clarified that it is not normally done by the Board of Adjustment. Chair Bode asked whether there was further discussion. Mr. Smith stated that his questions had been answered. Chair Bode stated that the status of the case was a motion to table. Mr. Seymour moved; Mr. Smith seconded: THAT CASE #14-99, 3301 SOUTH GRANT STREET, BE REMOVED FROM THE TABLE. Motion carried. The Chair announced the motion approved. 2 • • • • Chair Bode stated the original motion before the Board was: THAT FOR CASE # 14-99, 3301 SOUTH GRANT STREET, A VARIANCE BE GRANTED TO REDUCE THE MINIMUM SEPARATION BETWEEN A GROUP LIVING FACILITY AND A SCHOOL FROM 750 FEET TO 200 FEET. THIS IS A VARIANCE FROM SECTION 16-4-23-2:A.1, USE REGULATION. Mr. Smith stated that he is not convinced that Ms. Reid's opinion is correct that the shelter is a different use than the detox center. He stated he is impressed that the conditional use was granted with conditions. He noted the letter received from the reverend at St. Louis Catholic Church and finds it interesting that the church now supports the variance request. He continued; the shelter is an especially appropriate use for the facility, as well as a needed facility within Arapahoe County. Ms. O'Brien stated she concurred with Mr. Smith's remarks. She stated that it was particularly telling at the last meeting when some of the people testified they would not support the shelter regardless of where it was located. Ms. O'Brien stated that upon hearing the difficulty of WHAC finding a suitable facility, it appears that this facility is high ly necessary. She continued by stating she didn't understand how a shelter designed to house people up to three months could cause any more hardship to the neighborhood than a detox facility . Mr. Smith asked staff if a variance would be needed if the facility were a convent. Ms. Reid responded that in general it would be a church use which is permitted. Mr. Stitt agreed; religious institutions are permitted uses. Mr. Stitt stated that one view would be that a convent is ancillary to the religious function. If that were not the case, it might be considered similar to a dormitory, which would fall within the group living ordinance. In the latter case, the issue would be before the Board in the same situation as the applicant. Mr. Rasby stated he is glad the parish changed its opinion; he believes th e shelter is a very needed facility in the community. Mr. Rasby stated he wishes the shelter well, and hopes they are able to obtain the funding necessary to open the facility. Ms. Carlston stated she was impressed that a number of professionals, who work with homelessness on a daily basis, testified. She stated she felt that provided validation to the project. Mr. Seymour stated that from his personal experience last winter at the Fort Logan facility, this facility is deseparately needed. He continued that it seems like a "natural" fit. 3 Ms. Davidson stated that she had concerns about staffing, but the 24-hour staffing • requirement satisfies her public safety concern. With no further discussion, the secretary polled the members' votes. Mr. Smith stated he voted "yes", finding that the variance is supported by criteria. It is an exceptional piece of property and lends itself to this type of facility. He stated he is not convinced that it is a different use from the detox center; he stated the use is for short-term occupants, some of whom are homeless. Due to the extraordinary and exceptional situation requiring the need for this type of facility, it observes the spirit of the ordinance and provides a place for this type of facility in an area particularly suited for this facility; it has access to mass transportation routes, stores, police and fire, and medical care. It will not adversely affect the adjacent property of the neighborhood since it is less objectionable than the detox facility. The occupants of the facility will be less likely to sleep in the playground equipment at St. Louis and will be more likely to keep to themselves. It will not substantially or permanently impair the use or development of any adjacent property because it is consistent with the adjacent property. It is the minimum variance to afford relief because it has conditions attached to it by the Planning and Zoning Commission. Ms. O'Brien stated she voted "yes." With respect to the first criteria, it is an extraordinary and exceptional situation in that it is a need which is sorely present in our • society and is rarely addressed adequately . Concurring with Mr. Smith, the property lends itself to this variance, and is wholly within the public's good. With respect to the remaining criteria, she stated she concurs with Mr. Smith. Mr. Rasby, Ms. Carlston, Ms. Davidson, Mr. Seymour, and Chair Bode stated they voted "yes", concurring with Ms. O'Brien and Mr. Smith. The Chair announced the variance as granted by a 7-0 vote, and directed the applicant to contact the planning division staff for any additional information. III. CASE #1-2000 Countryside Builders, Inc. 4775 South Cherokee Street Chair Bode declared the Public Hearing open, stating he had proof of publication. He introduced the case by stating it is a variance from 16-4-4:1.1 to: decrease the total side yard setback from 10 feet to 8 feet 3 inches; decrease the minimum side yard setback from 3 feet to 2 feet 10 inches; and decrease the distance between principal buildings on the adjoining lot to the south from 10 feet to 9 feet 8 inches. Charlene Rogers, 7597 Molice Court, Larkspur, Colorado was sworn in for testimony. Ms. Rogers stated she was representing Countryside Builders. The owner could not be • 4 • • • in attendance due to surgery. She stated the variance is being requested for 4775 South Cherokee Street because of an error made by Armstrong Foundations in the placement of the new home. With regard to the five criteria, she testified that the rear of the house meets the setback requirements. The front, however, encroaches approximately 4 inches. The house and foundation were completed before it was realized that a mistake had occurred. The minimum distance between the structure to the south is also affected in that there is only 9 feet 8 inches between the two homes. The home to the north is approximately 30 feet from the new home and will not be affected. Straightening, reducing, or removing the existing home would be a hardship and the property could possibly remain vacant. Ms. Rogers testified that due to the minor nature of the encroachment, the variance, if granted, will not pose any safety issues and will observe the spirit of the ordinance as it was originally intended. The variance, if granted, will not adversely affect t he neighborhood or the surro unding neighbors. The neighbors were happy to see the demolition of the previous structure, which had been vacant for at least 10 years. Ms. Rogers submitted a picture of the previous structure which was demolished. Ms. Rogers continued; the new residence enhances the neighborhood and the reduction of the side setback does not severely impact adjacent properties. The adjacent properties are already developed with single-fam il y residences, and the variance would not impair the appropriate use or developmen t of adjacent properties. Only the minimum variance is being requested in order to accomplish the goal of continuing on with the progress of the new home and allowing the homeowner to move in as soon as possible. Ms. Rogers continued by testifying the error was a human mistake. Countryside Builders makes every effort to maintain all requirements set forth by City of Englewood departments. She thanked the Board for its time and consideration of the variance. Ms. Davidson asked if any effort was made to contact the neighbors and provide signed neighbors' statements. Ms. Rogers stated that the owner of Countryside Builders informed her that he posted the appropriate sign. He also informed her that he had spoken to the neighbors and no one responded. Ms. Davidson explained that in the past, the statements signed by the neighbors indicating either an objection or no objection to the variance request have been submitted to the Board. Ms. Rogers stated she was unaware of any signed statements. Ms. Carlston asked when the mistake was noticed. Ms. Rogers stated that the home is still under construction, but the foundation was in and the house was already framed and roof on before the error was noticed. Mr. Smith asked for clarification on the structure to the south. Ms. Rogers stated that it is a small, single-family home . 5 Ms. Newman, Planning Technician, was sworn in for testimony. Ms. Newman stated the • matter was brought to her attention by the Building Department when the initial plumbing, framing, and electrical inspection were done. Ms. Newman concurred that the house was already framed and roofed when the error was noticed. Mr. Smith asked if the foundation was inspected. Ms. Newman responded that the procedure regarding foundations is to request a letter from the engineer prior to issuing the Certificate of Occupancy. Mr. Smith asked how the error was discovered. Ms. Newman stated that it appeared "crooked" to the inspector. A site improvement survey was then requested from Countryside Builders, which verified the error. It was then determined the matter needed to be brought before the Board for a variance. Mr. Smith asked if the certificate had been received from the engineer stating the foundation was not installed correctly. Ms. Newman stated that the certificate is submitted before the Certificate of Occupancy is issued. Mr. Smith stated he would like to congratulate the inspector who noticed the error. Ms. Newman stated Charlie Petty was the inspector who caught the mistake. 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 1-2000, 4775 SOUTH CHEROKEE STREET, BE GRANTED A • VARIANCE TO DECREASE THE TOTAL SIDE YARD SETBACK FROM 10 FEET TO 8 FEET 3 INCHES; DECREASE THE MINIMUM SIDE YARD SETBACK FROM 3 FEET TO 2 FEET 10 INCHES; AND DECREASE THE DISTANCE BElWEEN PRINCIPAL BUILDINGS ON THE ADJOINING LOT TO THE SOUTH FROM 10 FEET TO 9 FEET 8 INCHES. THIS IS A VARIANCE FROM §16-4-4:1.1 OF THE COMPREHENSIVE ZONING ORDINANCE. Ms. O'Brien stated that this variance is a matter of inches, and is a minor variance. She stated it won't hurt the neighborhood. Neighbor statements would have been helpful, but it doesn't cause her a great deal of concern not having them either. Chair Bode stated he talked to the neighbor to the south, and it was conveyed to him that anything would be better than the house that had been there. Mr. Seymour stated that somewhere within the Municipal Code provides discretionary power to staff to determine whether a situation such as this case, which is a matter of a few inches, needs to be brought before the Board. Mr. Smith stated that is called an administrative variance, and the Board has directed staff not to grant such variances. Ms. O'Brien concurred. Mr. Seymour stated he didn't agree with bringing a four inch variance to the Board; it should have been handled at staff level. Ms. O'Brien disagreed. Discussion ensued. • 6 • With no further discussion, the secretary polled the members' votes. • • Mr. Seymour stated he voted "yes". It is a minor mistake. Ms. Davidson stated she voted "yes." It would be impracticable at this point in the construction of the house, to move the foundation. It would be an undue hardship on the property owner. There is no public safety issue. It will not affect the neighborhood; the new structure is an improvement to what was previously on the site. It will not impair the appropriate use of the adjacent property. It is the minimum variance. Ms. Carlston, Mr. Rasby, Ms. O'Brien, Mr. Smith, and Chair Bode stated they voted "yes", concurring with Ms. Davidson. The Chair announced the variance as granted by a 7-0 vote, and directed the applicant to contact the planning division staff for any additional information. IV. APPROVAL OF MINUTES. Chair Bode asked for consideration of the Minutes from the December 8, 1999 public hearing . Mr. Smith moved, Mr. Seymour seconded: THE MINUTES OF DECEMBER 8, 1999 BE APPROVED AS WRITTEN. AYES: Bode, Carlston, Davidson, O'Brien, Rasby, Seymour, and Smith NAYS: None ABSTAIN: None ABSENT: None The motion carried. The Chair announced the motion approved. V. STAFF ADVISOR'S CHOICE Mr. Stitt reported that no cases are scheduled for February. VI. CITY ATTORNEY'S CHOICE Ms. Reid stated she had nothing further . 7 VII. BOARD MEMBER'S CHOICE Ms. O'Brien asked when applications for appointment to the Board were due. Mr. Stitt stated they were due on January 14. Ms. O'Brien asked if Mr. Seymour and Mr. Smith wished the other Board members to write letters of recommendations. Mr. Seymour and Mr. Smith responded that would be appreciated. Ms. O'Brien further asked if City Council would be appointing an additional board member, as an alternate. Ms. Reid replied that the Board is currently full. To have an alternate appointed or the number of board members appointed, Mr. Stitt stated the Charter would need to be changed. Mr. Smith directed Ms. Reid to look into changing the Charter. Ms. Reid responded that it was not appropriate for the City Attorney's office to propose Charter changes. Those changes need to be proposed by citizens or councilmembers. There was no further business brought before the Board. The meeting was declared adjourned at 8:05 p.m. 8 • • •