HomeMy WebLinkAbout2001-09-12 BAA MINUTES•
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MINUTES
BOARD OF ADJUSMENT AND APPEALS
September 12, 2001
I. CALL TO ORDER
The regular meeting of the Englewood Board of Adjustment and Appeals was called to
order at 7:30 pm. in the Englewood City Council Chambers, Chair Carlston presiding.
Members present: Bode, Carlston, Davidson, O'Brien, Rasby (entered meeting at 7:40 p .m .},
Seymour, and Smith
Members absent: None
Staff present: Tricia Langon, Senior Planner
Bill Donnelly, Planner I
Nancy Reid , Assistant City Attorney
Chair Carlston stated there were seven members present; therefore, five affirmative votes
are required to grant a variance. Chair Carlston stated that the Board of Adjustment and
Appeals is empowered to grant or deny variances by Part 111, Section 60 of the Englewood
City Charter.
Chair Carlston stated the Board normally opens the public hearing, but the applicant is not
in attendance. Chair Carlston stated the order of the agenda would be changed and the
Board would consider Approval of Minutes and Findings of Fact.
I. APPROVAL OF MINUTES
Chair Carlston asked for consideration of the Minutes from the August 8, 2001 public
hearing.
Mr. Smith moved:
Mr. Bode seconded:
THE MINUTES OF AUGUST 8, 2001 BE APPROVED AS WRITIEN.
AYES:
NAYS:
ABSTAIN:
ABSENT:
Bode, Carlston, Davidson, O'Brien, Seymour, and Smith
None
Ras by
None
The motion carried. The Chair announced the motion approved .
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II. APPROVAL OF FINDINGS OF FACT
Mr. Smith moved:
Ms. O'Brien:
AYES:
NAYS:
THE FINDINGS OF FACT IN CASE #8-2001 3297 SOUTH DOWNING STREET,
CASE #9-2001 4495 SOUTH GRANT STREET, CASE #10-2001 200 WEST
BELLEVIEW AVENUE, AND CASE #11-2001 4268 SOUTH FOX STREET, BE
APPROVED AS WRITIEN.
Bode, Carlston, Davidson, O'Brien, Seymour and Smith
None
ABSTAIN: Ras by
ABSENT: None
The motion carried. The Chair announced the motion approved.
Ill. STUDY SESSION
Ms. Langon asked whether or not the Board wanted to adjourn to a conference room on
the third floor for a study session or would they prefer to conduct the study session in
Council Chambers . She stated it would give the applicant time to show up. Mr. Smith
suggested continuing the public hearing, and stated he thought the study session was in
October. Mr. Smith asked if there was someone from the public who wished to speak.
Chair Carlston stated there were two people present to speak in opposition.
Ms. O'Brien asked whether the Board could vote on the written record in the event the
applicant does not appear. Mr. Smith stated that it is the applicant's burden to present
evidence. Ms. Reid stated the Board can open the public hearing and hear testimony from
those present. If the Board does not find that all five criteria have been met, the variance
can be denied. Ms. Reid asked staff how long the applicant would need to wait before he
could reapply for the variance. Ms. Langon responded that the applicant could reapply
after one year . Ms. Reid further stated that the staff report can be entered into the record,
and the Board can ask questions of staff and any of the public. If the public hearing is not
opened, the property has to be reposted and it would need to be republished in the paper.
Mr. Smith stated he would like to hear from the public since they took the trouble to come
out to the meeting. However, if the Board does open the public hearing and continues the
case in order for the applicant to testify next month, these same people would probably
show up anyway. Ms . Reid stated the Board could open the hearing, take what evidence
there is, and then vote.
Ms. Davidson stated the property owner has given ReMax authorization to act on his
behalf. It is not the applicant's fault that no one showed, because he has given
authorization to someone else to act on his behalf. Ms . O'Brien stated that the applicant
has made a designation of who they want to appear on their behalf, and the applicant is
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ultimately responsible. Mr. Seymour stated that ReMax is the applicant. Ms. Davidson
suggested phoning the applicant.
Mr. Smith moved :
Mr. Bode seconded:
TO CONTINUE THE ENTIRE MEETING UNTIL OCTOBER 10, 2001.
Mr. Smith stated that gives the applicant the chance to present his case. There is any
number of reasons why the applicant could not be in attendance.
AYES:
NAYS:
ABSTAIN:
ABSENT:
Bode and Smith
Carlston , Davidson, O'Brien, Seymour
None
Ras by
The motion was denied by a 2-4 vote.
Ms. Davidson moved:
TO OPEN THE PUBLIC HEARING, HEAR TESTIMONY FROM THE PUBLIC ,
AND CONTINUE THE CASE IN ORDER TO GIVE THE APPLICANT A
CHANCE TO RESPOND.
The motion failed due to lack of a second.
Mr. Seymour moved:
Ms. O 'Brien seconded :
AYES:
NAYS:
ABSTAIN:
ABSENT:
TO OPEN THE PUBLIC HEARING, HEAR THE EVIDENCE, AND VOTE.
Carlston, O'Brien, Rasby, and Seymour
Bode, Davidson, Bode
None
None
The motion was approved by a 4-3 vote.
The Chair stated the Board would open the public hearing, hear testimony from those
present, and vote on the variance .
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IV. CASE #12-2001
Glen Cary
4 728 South Lincoln Street
Chair Carlston declared the Public Hearing open . The applicant is requesting a variance to
encroach 3.8 feet into the required 14 feet minimum side yard setback separation between
principal structures on adjacent lots . This is a variance to 16-4-5:K2, Minimum Side Yard of
the Englewood Municipal Code. Mr. Seymour asked where the property was located.
Chair Carlston responded that the property is located at 4728 South Lincoln Street.
Chair Carlston asked whether there was verification of posting and publication . Ms. Langon
responded that the applicant has the verification of posting, and the Chair has the notice of
publication . Mr. Smith asked whether the Board had jurisdiction without the posting.
M s. Reid stated that the Board 's handbook indicates that public notice of time and place
and the purpose o f such meeting shall be given b y one publication in the official newspaper
of the City at least 10 days before such hearing. Ms. Reid asked if that had been done.
Chair Carlston stated that it had.
Ms. Reid further stated that no verification or modification of any prov1s1on of this
Ordinance shall be authorized except after public hearing thereon. Public notice of time,
place and purpose of hearing shall be given by one publication in the official newspaper of
the City of Englewood . Mr. Smith stated the question is whether or not there is proof of
posting. Ms. Reid continued; the property must be posted for not less than 1 5 consecutive
days prior to said hearing. Ms. Reid stated that sometime during the public hearing the
Board w ould need verification of posting and publication .
Ms. Langon stated that the applicant was now present. Chair Carlston stated that she now
had verification of posting of the property, and publication of notice of the Public Hearing.
Chair Carlston explained to the applicant that the Board opened the public hearing prior to
his arrival. Mr. Cary apologized to the Board for his tardiness, and stated that he had an
emergency he had to attend to. Chair Carlston asked Mr. Cary to come forward to present
his case as to wh y the Board should grant the variance.
Glen Cary, 1 7 45 Shea Center Drive #110, Highlands Ranch, Colorado, was sworn in. Mr.
Cary testified that the lot is extremel y narrow, 25 feet wide. In order to design a home to fit
on the lot and to meet all the standard setbacks required by the City, the house would need ·
to be very skinny. The proposed development would observe all the other zoning
requirements to secure public safety . The variance would allow the construction of a wider
home, which observes the spirit of the Ordinance. The City created the ability to build
homes on skinnier lots to allow infill sites, such as this property, to be built upon. The
variance will not change the distance between the adjacent homes. The proposed
construction will improve this lot, which has been vacant for a number of years . It is an
eyesore in the neighborhood; it does not conform to the landscaping in the neighborhood.
People dump trash on the lot, beer bottles, abandoned cars, etc. The development of this
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lot would not only improve the lot but also would increase values in the neighborhood. It
will make both of the neighbors' houses more valuable . The variance would allow
comparable type homes to be built on the lot.
Mr. Cary continued; allowing the house to be 19 feet wide rather than 16 feet wide would
be the least amount of change that would allow a nice home to be built on the property.
Ms. O'Brien asked for the name of the property owner. Mr. Cary stated the property
owner is Vinnie Skarajunski, who lives in Vail, Colorado. Ms. O'Brien stated the staff report
indicates that "the site was established by the property owner through a lot split, pursuant
to Title 10 Land Subdivision requirements of the Englewood Municipal Code." Ms. O'Brien
asked whether or not that was accurate. Mr. Cary responded that he believed it was. Ms.
O'Brien clarified that it was the current property owner who split the lot. Mr. Cary stated
that was correct. Ms. O'Brien stated the property owner has split a SO-foot lot into two 25-
foot lots, and is now stating that one of the 25-foot lots is an exceptional circumstance that
deserves a variance . Mr. Cary started to respond. Ms . O 'Brien instructed him to respond
either y es or no. Mr. Cary stated that was not correct. Ms . O 'Brien asked how many other
duplexes there were on the same block. Mr. Car y stated he did not have an accurate
amount, but knows that there are several. Ms. O'Brien asked whether or not his client, the
property owner, stands to gain economically from building two houses rather than one.
Mr. Cary stated the value of the two units separately is worth more than two units together .
Vic Pankoski, 4703 South Lincoln Street, was sworn in. Mr. Pankoski stated there are a lot
of duplexes that have been built in Englewood over the years, and they look good and are
on 50-foot lots. It amazes him how one person can come in and change the zoning, and
that's not right. If one person is allowed to change the zon i ng and extend within 10 feet of
a house, which is reall y close and will deprive the neighbor of a lot of privacy, then you
have to let the next person change the zoning. It doesn 't seem justified for the property
owner to sacrifice what all of us have enjo y ed all the years since whoever was on the
Zoning Commission started the 14 feet separation. The separation is advantageous to the
builder, the people who have to live in the residence, and the neighbors .
Mr. Pankoski further stated he doubted Mr. Cary would ever live in this house; so he won 't
be subject to an y inconvenience of living right on top of his neighbor. If all the builders in
Englewood, including himself, have adhered to this separation and put up nice duplexes,
than the applicant can adjust whatever he needs to adjust to construct a duplex on the
property without infringing on the neighbor and depriving him of something he has enjoyed
for 20 years. The people who move into that house will be renters /transients and won 't
stay there for long periods of time. People will be moving in and out of the house . They
won 't be subjected to any inconvenience. He further testified that he is surprised that this
was able to be brought to the variance committee. Would not anyone in the future be able
to obtain the same variance that Mr. Cary is getting? You would have a hard time
discriminating telling a builder that he can't do it when it has been done in the past. Mr.
Pankoski stated it was not right and didn 't believe it would be legal. Further, the salesman
has a personal gain, so naturall y he wouldn't be concerned with what the Board would be
confronted w ith later or wh at th e residents moving into these units would be confronted
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with. Mr. Pankoski stated he would like to know if the house would be stick built or a
modular. Englewood has already been stuck with a number of modulars. He stated he
heard the salesman say the units were being built independently so he could sell one or
both. Mr. Pankoski stated his house was built that way; he has separate sewer lines and
water lines . He encouraged the Board to give it a lot of thought before they get "their foot
in their mouth" and allow something to take place that they really shouldn 't be getting
involved in.
David Hoogendyk, 4738 South Lincoln Street, was sworn in . Mr. Hoogendyk testified that
he has lived in his house for approximately 15 years. His occupation is commercial heating
and air conditioning so he knows about Codes, how they work, and why they are in place.
He further testified that all of his bedrooms are on the side of the house next to the subject
property, and it would be a large inconvenience having that house only 10 feet from his
house . He has small children that go to bed early at night. Also, who knows who would
move into the house since it will be a rental.
Mr. Smith stated that situation was created because Mr. Hoogendyk built his house five feet
from the property line. Mr. Hoogendyk stated that was incorrect. Mr. Smith stated that he
is allowed to build his five feet from the property line because he was there first. Mr.
Hoogendyk stated that his house is the proper distance. Mr. Smith stated the plans indicate
that his house is five feet from the property line . Mr. Hoogendyk stated that was incorrect.
Mr. Smith asked how far his house was from the property line . Mr. Hoogendyk stated he
had a copy of the survey and checked their measurements from the pins and markings, and
it was somewhat skewed. It should be square according to the original plat for Harlem
Subdivision, Block 71, Lots 9 and 10, which is Mr. Skarajunski's property. His property is
Lots 11 and 12, which was originally built in 1930 as a basement house . He had no control
over how close it was built to the property line. Mr. Smith stated he understood, but
neither does the applicant. Mr. Smith reiterated he wanted to know if his house was built 5
feet from the property line . Mr. Hoogendyk stated that it is 7 feet from property line. Mr.
Smith stated that if it is 7 than there is less of a problem.
Mr . Hoogendyk stated that it is supposed to be 14 feet. Mr . Smith stated that if his house is
7 feet from property line, the applicant wants 3.8 less than what is required, which is 10.2
feet between the proposed house and Mr. Hoogendyk's house, or 12.2 feet if Mr .
Hoogendyk is correct. If Mr. Hoogendyk is correct, the applicant is asking for less than a
foot. Mr. Hoogendyk stated he would have to double-check those figures. He stated the
point he was trying to make before Mr. Smith interdicted.... Mr. Smith stated he
understood. Mr. Hoogendyk asked if he could finish . Mr. Smith stated that he could not.
Chair Carlston stated the applicant should have the opportunity to finish . Mr. Smith asked
whether or not he could get an answer to his question . Ms . O'Brien stated no; Mr.
Hoogendyk should be able to make his presentation . Mr . Smith asked Ms. O'Brien to let
him know when he could ask his question.
Chair Carlston instructed Mr. Hoogendyk to finish his presentation. Mr. Hoogendyk
testified that with the regards to the corner closest to his property, the angle is skewed. He
measured from their pins; it should be 50 feet from pin to pin and 125 feet pin to pin on
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the rear of the property with the correct easements . There should 134 feet diagonally; it
didn 't come out correct. This proved to him that their survey was already skewed closer to
his property on the southwest corner; already trying to gain an advantage he believes. He
stated there was really no pin on that corner; they were going by an existing rebar, which
had no stamp or surveyor mark on it. He stated he wrote a letter to Mr. Bill Donnelly
stating he would like him to uphold all existing Codes and stated he would like to read that
letter to the Board. Chair Carlston stated he could. Mr. Hoogendyk read the following into
the record:
"Dear Sir;
I am writing to you in regard to the property directly to the North of my home. It
would be lots 9-10, block 71, Harlem and my property is lots 11-12, block 71,
Harlem . I would like you to uphold all existing zoning and building laws in effect at
this date and time as I am an existing home owner and tax payer and you are an
employee of the City of Englewood duly employed. I don't want this property to
lose value and resalability due to a change in the code that would also affect future
building in this community by it's precedence . I would appreciate your compliance
with current laws and regulations and would like t o thank you in advance for your
anticipated cooperation . I would like to duly note that the current survey of the lots
9-10 , block 71, Harlem recorded on February 9, 2001 at 12 :02 p.m . at the office of
the County Clerk and Recorder of Arapahoe County at Littleton, Colorado is skewed
to the front of my lot at the south West junction of lots 10 and 11 and is
questionable."
Mr. Hoogendyk stated he recorded the letter with the Arapahoe County Clerk and
Recorder's office. Chair Carlston asked if he was done with his statement. Mr. Hoogendyk
stated he was. Chair Carlston informed Mr. Smith that he could continue with his
questioning.
Mr. Smith clarified that what Mr. Hoogendyk was saying was the first property owner that
builds and if he builds close enough to his property line, he determines what the next
property owner can do. Because Mr. Hoogendyk's house is only 5 feet from the property
line, the applicant must go another 9 feet from the property line; he doesn't get to build as
close to his property line as Mr. Hoogendyk did.
Mr. Hoogendyk stated that he built the house just to the south of his and put the house on
the back of the lot. Mr. Smith stated to Mr. Hoogendyk that he was talking about his house
and the applicant's proposed house. Mr. Smith clarified that Mr. Hoogendyk's house is five
feet from the property line, possibly 7 feet; yet he doesn't want the neighbor to the north to
have the same privilege. Mr. Hoogendyk responded that he didn't build his house; it was
an existing house. Mr. Smith acknowledged that it was an existing house; but Mr.
Hoogendyk doesn't want his neighbor to the north to have the same privilege as he does.
Mr. Hoogendyk stated that he didn't have any say so in the matter, and his house is not
next to any windows or anybody else. When his house was built, there were two vacant
lots on either side. Mr. Smith stated if the applicant isn 't able to develop this property, it
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will continue to be a vacant lot. Mr. Hoogendyk stated he developed the property to the
south. Mr . Smith interjected that what Mr. Hoogendyk was saying ...
Chair Carlston instructed Mr. Smith to let Mr. Hoogendyk complete his answer. Mr. Smith
stated he gets to determine whether or not his question has been answered. Ms. O'Brien
stated that he didn't get to interrupt Mr. Hoogendyk.
Mr. Ho ogendyk continued; there are a number of duplexes in the neighborhood; and there
are a lot of people moving in and out, transit-type situation. He acknowledged the property
was zoned R-2, but he would like to see single-family construction on the property. He
believes it will be nicer for the neighborhood. He has been trying to improve his property
and make it resalable; he has a lot of pride in his community. He stated if the Board had
small children at home, they would be concerned too if someone built within 10 feet of the
windows of their bedrooms.
Mr . Sey mour asked whom the letter was written to. Mr . Hoogendyk responded that it was
written to Bill Donnelly. He also previously spoke to Mr. Donnelly regarding an outhouse
that was left in his front yard. It was later moved when the weeds were cut. The previous
property owners kept the weeds down and kept the property looking nice before they sold
it. They may have had an extra car parked there that they were working on, but he doesn't
recall ever seeing beer bottles on the property. The neighbors tr y to keep an eye on the
property so it doesn't get too trashed. It has only been since it has been sold, the property
bulldozed, and a pile of rubble left that there has been anything th a t looks like a pile of
trash .
Mr . Smith asked whether the Board was done with the public hearing or whether they were
just going to ramble. Chair Carlston stated no; they were going to allow the public to
speak.
Ms . Davidson asked whether or not he would have a problem if the applicant constructed a
duplex, which meets the Code and is only 16 feet wide. Mr . Hoogendyk stated that was
not a problem; he doesn 't want it 10 feet from his house. Ms . Davidson clarified that a
duplex on that lot would be acceptable to him as long as it met existing setbacks. Mr.
Hoogend yk stated that was correct.
Ms . O'Bri e n asked for the date of his letter to Mr . Donnelly. Mr. Hoogendyk stated he
wrote it on the 101h and just gave it to him this evening; he didn 't have a chance to put it in
the mail because the Arapahoe County offices were closed yesterday. Chair Carlston
clarified that it was dated September 10. Mr. Hoogendyk stated that was correct. Ms.
O'Brien clarified that Mr. Donnelly didn 't have a chance to respond to the letter. Mr .
Hoogendy k stated that was correct; he shared the letter with Mr . Donnelly this e v ening
before the meeting. Ms . O 'Brien asked what his purpose was for sharing the letter with the
Board ; what is the Board supposed to take from that letter. Mr. Hoogendyk stated he
wanted it on record that he wanted the Planning Commission and City Council to uphold
the existing Codes. They are there for a reason, to protect the public safety.
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Chair Carlston asked whether or not he was given the opportunity to fill out a neighbor's
statement. Mr. Hoogendyk responded that he was not.
Chair Carlston asked if the Board wished to recall anyone who has given testimony. Ms.
Davidson stated she would like to recall the applicant. Chair Carlston stated the applicant
has a chance for rebuttal.
Mr. Cary stated he would like to address a couple of issues he heard. Mr. Cary stated he
talked to Mr. Hoogendyk's wife and she would not take the paper [Secretary's note:
neighbor's statement] offered to her. She asked him to move the outhouse, and it was
moved; no one from the City called to ask him to remove it. When the subcontractor
delivered the outhouse that is where he dropped it off, and it took a while for them to get
back to move it to the alley . Further, the proposed construction would be stick built; it will
not be built somewhere else. Materials will be delivered to the site and built there. One of
the purposes of building the duplex as proposed is so two separate owners can be
attracted to this property. The property could not have been divided any other way than
the way that it is currently divided. It was originally divided when the subdivision was
platted; these two lots were platted exactly as they are now. It is his belief that by building
the separate homes, separate owners will be attracted who will live on the property. There
is a possibility that these would be rentals; but if it is built front to back, it is guaranteed to
be a rental property. More people would be moving in and out, as they do in the
remainder of the block. The property is zoned for duplexes .
Mr. Cary continued; he could design a building which would fit on the lot and which meets
all the City requirements. The building would be 16 feet wide and approximately 50 to 60
feet long. To comply with the City requirements, a 25 feet front yard setback and 25 feet
rear yard is needed. That only leaves a backyard of 1 5 feet, which won't attract families
with children. The current design gives the ability for a family to own the property and
have a yard, as well as a garage, and the ability for them to enjoy the benefits of what the
zoning allows the other neighbors to do.
Ms. O'Brien clarified that the distance from the proposed house on the north side to the
property line is 5 feet 3 inches, and on the south 5 feet 2 inches. Mr. Cary responded that
was correct. Ms. O'Brien stated that if the house on the north had been built 7 feet from
the property line rather than 19 feet, he still would not be able to build as he is currently
proposing. Mr. Cary stated he would also need to ask for a variance on that house. Ms.
O'Brien asked how he chose 5 feet 3 inches between the proposed home on the north and
the property line. Mr. Cary stated that if the Board is suggesting he change it to 5 feet 3
inches on the other side, he could do that. Ms. O'Brien stated she wasn't suggesting that;
she asked him how he chose 5 feet 3 inches. Mr. Cary responded that the City requires a
25-foot frontage on each unit; he started in the middle of the lot and worked out. There is
also a requirement that the wall between the units be a double wall. Ms. O'Brien asked
whether or not he was trying to create mirror images. Mr. Cary stated that was correct.
Ms. O'Brien stated that determined the placement on the property. Mr. Cary responded
that 25 feet of frontage was the requirement; each unit to be sold separately must have 25
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feet of frontage. Ms. O'Brien stated there didn't have to be any separation between the
duplexes . Mr. Cary stated that was correct.
Chair Carlston asked for the square footage of each unit. Mr. Cary responded that each
unit would have 1,088 square feet; the units are 3 bedroom, 2 bath with a 1 car detached
garage. The garage is not included in the square footage .
Mr. Smith asked how long Mr. Skarajunski has owned the property. Mr. Cary stated it has
been over a year and a half. Mr. Smith asked whether he was the owner who split the two
lots. Mr. Cary stated the subdivision originally showed the property as two lots; those two
lots were designed that way when the subdivision was made. Chair Carlston asked if the
property owner purchased the property as two lots. Mr. Cary stated he purchased the
property together; he then made an application for a subdivision, which was not recorded.
He later found out that the subdivision was not required because they were originally
divided on the plat so the City gave him an address for each of the lots.
Mr. Smith stated he is tr ying to determine whether Mr. Skarajunski was the person who split
off the lot to the north , 4 726 South Lincoln. Mr. Smith also asked whether Mr. Skarajunski
owned 4726 South Lincoln. Mr. Cary stated Mr. Skarajunski owned both lots. Mr. Smith
clarified that Mr. Skarajunski did split the lot. Mr. Cary stated he was having a hard time
understanding the question; when the original subdivision was platted and recorded, there
were two separate lots . Lots 9 and 10 were the original lots. Mr. Smith stated that it is a 50
foot lot and asked what the significance was in the staff report of "this variance request is
the southern 25 feet of the original 50 feet parcel" when it is still a 50 foot parcel. Chair
Carlston stated that was a question for staff. Mr. Cary stated he has an Improvement
Location Certificate which was received when the property was purchased. It shows Lots 9
and 10. Mr. Smith stated he would ask staff the question, but reserved the right to ask Mr.
Cary to clarify, if necessary.
Ms. O'Brien stated that she began her questioning of him by asking whether or not the
current property owner was the one who split the property into the two lots, 4726 and
4728 South Lincoln Street. Ms . O'Brien stated that his answer to her was "yes"; she asked
if he was now changing his answer. Mr. Cary stated that he didn 't understand the question;
the lots were originally platted that way; if that is the question then "no" Mr. Skarajunski did
not originally do the plat on this property. He did apply for separate addresses for the lots.
Mr . Smith stated that it appears there is still a SO-foot lot, and it doesn't appear that it has
been split. Ms. O 'Brien stated she was confused, and the answer to her first question is
what she has based everything on. Mr. Smith stated he shared the same confusion, but
now believes it has something to do with the staff report rather than some physical splitting
of the property. It also appears that the current owner owns both the north and south half
of the lot. Ms. O 'Brien asked if there were one or two deeds for the sale of the property.
Ms. Cary responded that there was one deed for the two lots . Ms. O'Brien asked about the
addresses. Mr. Cary stated that there were no addresses at that time. Ms. O 'Brien clarified
that the owner bought one piece of property with one deed, and subsequently the City
gave you two addresses. Mr. Cary stated that was correct. Mr. Cary stated he has a
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document dated August 7, 2001 entitled Residential Lot Split which is signed by Tricia, and
it shows the two properties with two separate addresses. Ms. O'Brien asked for the date of
the document. Mr. Cary stated it was August 7 .
Mr. Smith stated in order for the Board to get an answer, they will have to question staff.
Ms. O'Brien agreed.
Tricia Langon , Senior Planner, was sworn in. Ms . Langon stated it is an issue of semantics.
The property was originally one parcel , one land parcel of two lots . Through a lot split, or
parcel split, it is not two parcels of one lot each. Ms. O'Brien asked when that parcel split
occurred. Ms. Langon stated she believed the date was in August, 2001. Ms. O'Brien
asked when the property was purchased by the current owner. Ms. Langon responded that
she didn't know. Ms. O'Brien asked whether it was prior to the date of the lot split. Ms.
Langon stated it was.
Chair Carlston asked for the definition of a parcel split and how it happens. Ms. Langon
stated that because the property was originally platted into lots, and most parcels are in SO
foot increments made up of two lots, and a split occurs down the line between the two lots
which make up the parcel, it can be handled through a lot split. Ms. Langon stated if there
is a 60-foot lot and the requirement is for 2S feet of frontage for . each -and they were
originally platted as two 30-foot lots, someone may now want a 3S and a 2S-foot lot. They
would be permitted to do that. The new line then is not along the original platted lot line,
and it would need to go as a minor subdivision. The residential lot split was in lieu of a
minor subdivision. In a residential lot split new legal descriptions are created; two separate
legal descriptions from one parcel. Mr. Smith asked if they could be sold separately. Ms .
Langon stated they could. Ms . Langon clarified that what was being built is not a duplex,
but rather a single-family attached dwelling.
Ms. O 'Brien stated the owner purchased it as a SO-foot lot. Ms. Langon stated that was her
understanding . It was platted as two 2S-foot lots, but he purchased it as a SO-foot lot. Ms.
Langon stated that was correct.
Mr. Smith clarified that a duplex is on one parcel and the units cannot be sold separately;
with single family attached, he can sell the units separately. Ms. Langon stated that was
correct. Mr. Smith stated that there is a split or will be a split if the variance is granted. Ms .
Langon stated that there already has been a split. Mr. Smith stated that if the Board denies
the variance, the owner can join it back to one SO-foot lot.
Chair Carlston stated that someone could buy this lot and build one house without having
to split it into two parcels. Ms . Langon stated that generally both sides are built by one
person; it would be difficult for only one side to be built. Chair Carlston stated that was
true unless the person was in the know about the split. Ms. Langon clarified that the split
has been recorded with Arapahoe County; there are two 2S-foot parcels.
• Mr. Smith clarified that no matter what the applicant does he cannot go closer than S feet
to the north property line , actuall y 7 feet. Ms. Langon stated 14 feet between structures; if
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the other structure is 5 feet away, he would need to be 9 feet. Mr. Smith stated that for
both sides he has to be at least 5 feet in addition to the 14 feet; there is a 5-foot
requirement.
Ms . O'Brien asked why the 14-foot requirement between residences was needed. Ms.
Langon stated that it was her understanding that it was put in place to maintain separation
between buildings. Ms . O'Brien asked why that was advantageous. Ms. Langon stated she
didn't know, but that was one of the areas being considered for elimination in the new
Unified Development Code. Ms . O'Brien clarified that the distance between residences is
being considered for elimination . Ms. Langon stated that was correct, for just this situation.
As Mr . Smith explained , the first person in builds at 5 feet, which automatically pushes the
next person to 9 feet without a variance .
Ms. Davidson asked if this issue varied between different zone districts. Ms. Langon stated
that in different districts, the separation amount is different.
Ms . O'Brien asked for what the current zoning requirement between residences . Ms .
Langon stated in the current property's zone district it is 14 feet. Ms. O'Brien stated that
Ms. Langon doesn 't have the power to change that requirement. Ms . Langon stated that
was correct. Ms. O 'Brien clarified that the separation is 14 feet. Ms. Langon stated that
was correct. Ms. O'Brien asked Ms. Langon personally what distance she would find
objectionable between her house and her neighbor 's house. Ms. Langon stated she lives in
Denver; her house is 4 feet from property line and the neighbor is approximately 4 feet
from property line. Houses were built.... Ms. O'Brien interjected and asked whether Ms.
Langon found that acceptable. Ms. Langon stated she did. Ms. O 'Brien confirmed that Ms.
Langon personally found that acceptable . Ms . Langon stated for her personally, "yes." Ms .
O 'Brien stated she did not.
Mr . Se ymour stated that he has ne ver heard of "single famil y attached ." Ms. Langon stated
th at it has b ee n in the Ordin a nc e for a number of years. Again, a duplex is two units on
one parcel. A single family attached is one unit and one unit on separate parcels with a
common property line , zero lot line . The units can be sold separately. Mr. Seymour stated
that it would have to be built at one time. Ms. Langon responded that was correct;
howe ver , there may be some building method which is possible to build them separately.
Mr . Se ymour stated that if just one was built on the lot, wouldn't there be a violation of the
side yard setback. Ms . Langon stated if it is built as single-family attached there can be a
zero lot line . She stated that she was unaware of any single-family attached where only one
side was built.
Ms. O'Brien asked if the Board had the right to review the new Zoning Code. Ms. Langon
stated parts of it would be brought to the Board for comments . Ms . O'Brien stated she
hoped so.
There were no other persons present to testify for or against the variance. Chair Carlston
incorporated the staff report and exhibits into the record and closed the public hearing.
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Mr. Se y mour moved;
Mr. Smith se c onded :
THAT CASE #12-2001, 4 728 SOUTH LINCOLN STREET, BE GRANTED A
VARIANCE TO ENCROACH 3.8 FEET INTO THE REQUIRED 14 FEET MINIMUM
SIDE YARD SETBACK SEPARATION BETWEEN PRINCIPAL STRUCTURES ON
ADJACENT LOTS. THIS IS A VARIANCE TO 16-4-5 :K2 , MINIMUM SIDE YARD OF
THE ENGLEWOOD MUNICIPAL CODE.
Mr. Smith stated he was going to vote "yes", because voting no allows the first property
owner to push the second property owner 9 feet from his property line. The first property
owner built 5 feet from his property line, and the current property owner doesn't even
want to build 5 feet; he is willing to go 5 feet 2 inches. He cannot because he has to be
back 9 feet. The adjacent property is already developed so the proposed construction will
not impair its development. It creates substantial justice because it allows the second
property owner to build as close as the first property owner.
Ms. O 'Brien stated the problem she has is the o w ner bought a 50-foot lot, at which time the
Code was clear. He knew the other properties were developed; he knew where the
houses w ere located; and he knew what he was getting into . He wants to create the
exceptional c ircumstance b y dividing th e lot in half, into 25-foot frontages . She stated that
owner should not be allowed to create the exceptional condition for his economic gain .
Further, it does not reflect the spirit of the ordinance. The spirit is to keep a certain amount
of distance between the homes. Englewood is not Denver; some people find those kinds
of distances between residences abhorrent. Property values decrease when the distances
decrease . Ms. O'Brien stated for her it is on e of the major problems with new properties .
Denver homes can be very old and have those conditions; people buy the property
knowing what they are getting. When people bu y into Englewood and there are specified
distances between residences, people have the right to rely on that. Ms. O 'Brien stated she
feels extremel y strongly about the issue .
Ms . Davidson stated she is torn; she has had little kids in bedrooms close to a house next
door, and the y were awakened. However, 14 feet would not have made a difference at
the time. She stated she lives in a section of Englewood that has less than 14 feet between
houses. If buyers are being attracted rather than renters, than she sees some justification.
She believes the owner is requesting the variance for economic gain, but the type of
product he is wanting to construct is superior to a duplex. Ms. Davidson stated in her case
14 feet would not have made a difference; it was noisy teenagers next doors who were
having a beer party, and it happened a lot. She asked Mr. Smith and Ms . O 'Brien for help
to figure it out. Mr. Smith stated he didn 't know what to tell her; the difference between 10
and 14 f eet in this situation and neighborhood is negligible.
Mr. Bode stated when he visited the property, he walked two blocks each way. There are
many duplexes and /or single-family attached in the surrounding neighborhood and none of
them are at 14 feet. Mr. Bode stated he understood the concern ; but if a house is
purchased next to an empty lot, the only way to keep that lot empty is to purchase it.
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Ms. O'Brien instructed Mr. Hoogendyk that he could not speak and asked him not to do it
again.
Mr . Bode continued; when someone moves next to an empty lot in Englewood, the person
has to realize that someone will eventually build on the empty lot. Englewood has a
definite set of boundaries; and if you want to build in Englewood , you have to find a vacant
lot or tear down an existing house and build another one.
Ms. O'Brien asked whether or not a person buying a house next to a vacant lot had the
right to assume that the zoning laws would be observed. Mr. Smith stated he believes
when a person buys a house that is only 5 feet from the property line that they assume the
neighbor next door can build 5 feet from their property line. People do not look at the
zoning code and say to themselves, "I 'm going to buy this house knowing it is 5 feet away
from the property line and know my neighbor is going to build 14 feet away." Mr .
Seymour stated he didn't believe Mr. Smith could be that na'lve. Mr. Smith stated he had
no idea what the setbacks were when he bought his house.
Ms. O'Brien stated people have a right to rely on the zoning requirements . Ms. Davidson
informed Mr . Hoogendyk that the public hearing was closed and that he could not
respond . Mr . Bode stated that in that neighborhood there are a number of houses that are
only 4 to 5 feet from the property line; 80%. Chair Carlston stated that the Board doesn 't
have to duplicate that pattern .
Mr . Smith stated the proposed construction will improve the neighborhood. Ms. O'Brien
stated that the neighbor next door has come forward and stated he wants the Board to
uphold the zoning requirements. Ms . O 'Brien stated she believes strongly in maintaining
distances between homes .
Mr. Smith stated that the Board granted Case No. 1-2000 to decrease the side yard setback.
Chair Carlston asked whether or not that was for new construction or an addition. Mr .
Smith stated he didn't know . Mr. Bode asked if there was a difference . Chair Carlston
responded that she believed there is a difference . Mr. Smith stated the Board granted Case
No. 5-2000 for a side yard setback. Ms. O 'Brien stated she did not find it persuasive so Mr .
Smith could recite previous cases all night, and it won 't persuade her. It's a good argument,
but it still won't persuade her. Mr. Smith stated that his point is that if we strictly adhere to
the Zoning Ordinance, the Board would never grant a variance. Chair Carlston stated that
in a number of cases , variances are granted for properties that are owner occupied. Mr.
Bode argued that the Board doesn 't know who is going to own this property.
Ms. O'Brien stated that under certain circumstances it makes sense to grant the variance;
she believes in this case it doesn 't make sense. She stated she is going to be a stickler for
the distance between houses, and believes she has been in the past. She stated she also
didn 't like these "long skinny things" either. She tried to make that clear when the Board
was asked for comments on the new Zoning Code, but clearly none of her comments were
heard just by the testimony of staff.
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Ms. O'Brien stated the applicant can either put the lot back to a SO-foot lot or change the
configuration. She doesn't believe it is necessary.
With no further discussion, the secretary p olled the members' votes.
Mr. Seymour stated he voted no; the first criterion is of the property owner's own making.
The spirit of the ordinance assumes that the development conforms to the zone district
provisions for side setbacks, including separation between principal structures. Mr.
Hoogendyk testified that it would adversely affect his property and it will also negatively
impact his property. The owner could do something different so it is not the least
modification necessary. The applicant must meet all five of the criteria, not just the
majority.
Ms. Davidson stated she voted no; the hardship is created by the applicant. She doesn 't
have a problem with the second criterion . The neighbor has testified that the variance
would adversely affect his property, as well as negatively impact it. It is not the least
modification ; the applicant could build a 16-foot wide house.
Ms. O 'Brien , Mr. Rasby, and Chair Carlston stated they voted no, concurring with Mr.
Seymour and Ms . Davidson.
Mr . Bode stated he voted yes; it does not affect the public safety and welfare. He believes
since the neighboring house is 5 feet from the property line, this owner should be allowed
to build 5 feet from the property line and it would not adversely affect the neighboring
property.
Mr. Smith stated he voted yes, concurring with Mr. Bode. It doesn't matter what the
property owner wants to put on this property, he has to make it 9 feet from his property
line . It is not because he split the lots; it is because his neighbor built 5 feet from his
property line. The hardship is not created by the present owner.
The Chair announced the motion denied by a 2-5 vote.
V. STUDY SESSION
Chair Carlston stated the Board passed by the study session item. She asked the Board if
they wished to adjourn to the third floor conference room or wait until next month. Ms.
Davidson asked how many cases were scheduled for next month. Ms. Langon stated there
are four cases for October. Mr. Smith stated that he didn't want to stay for the study
session and suggested holding it in November. The Board concurred.
VI. CITY ATTORNEY'S CHOICE
Ms. Reid stated the Board of Adjustment Handbook has not been revised since 1986 .
There was a draft put out in 1995. She asked if the Board wished to revisit the handbook
or whether they were happy with the 1986 version. Mr . Smith stated he would like to look
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at the draft again. Ms. Reid asked whether the Board would like her to re-work the draft
and bring it forward . Mr. Smith stated he would like her to re-work it and then bring it to
the Board.
VII. BOARD MEMBER'S CHOICE
Ms. Davidson stated she appreciated the travel clocks the City gave to the Board members
as a "thank you."
There was no further business brought before the Board . The meeting was declared
adjourned at 8:50 p.m.
H:/Boards/BOA /2001 Cases/12-2001 Skarajunsky
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