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HomeMy WebLinkAbout2002-01-09 BAA MINUTES• • • MINUTES BOARD OF ADJUSMENT AND APPEALS January 9, 2002 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, Seymour, and Smith Members absent: None Staff present: Tricia Langon, Senior Planner Nancy Reid , Assistance City Attorney Secretary 's Note: One vacancy Chair Carlston stated there were six 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. II. CASE #13-2001 Robert L. Pitier/Mark Lee Levine 2303 East Dartmouth Avenue Chair Carlston introduced the case by stating it is an Application for Rehearing in Case #13- 2001, filed by Robert Pitier and Mark Levine for property located at 2303 East Dartmouth Avenue . Chair Carlston stated a summary of the new evidence was in the Board's packet of information, and asked whether or not the Board wanted to discuss the Application for Rehearing. There was no discussion. Mr. Seymour moved; Mr. Smith seconded: THAT CASE #13-2001, ROBERT L. PITLER AND MARK L. LEVINE, 2303 EAST DARTMOUTH AVENUE, BE GRANTED A REHEARING. With no further discussion, the secretary polled the members' votes. AYES: NAYS: ABSTAIN: Davidson, Seymour, and Smith Bode, O 'Brien, and Carlston None ABSENT: None 1 The Chair announced the motion denied by a 3-3 vote. Chair Carlston stated in the original vote she voted against the motion to approve the variance request for Case #13-2001 . Chair Carlston moved; Ms. O'Brien seconded: TO RECONSIDER THE VOTE ON THE MOTION TO APPROVE VARIANCE REQUEST IN CASE #13-2001 . With no further discussion, the secretary polled the members ' votes. AYES: NAYS: ABSTAIN: ABSENT: Davidson, O 'Brien, Seymour, and Smith Bode and Carlston None None The Chair announced the motion approved by a 4-2 vote. • Mr. Smith stated he didn't understand the difference between the Motion for Rehearing and the Motion for Reconsideration . Ms . Reid stated she prepared a memo for the Board • on the subject, and it was included in the packet. Ms. O'Brien stated the Board did not do Findings of Fact at the previous meeting, and they must be done for the denial of the variance. Ms. Reid stated a rehearing allows the applicant to present new evidence in the case. The Board could then consider previous evidence, as well as the new evidence. A rehearing requires a new hearing date, as well as posting the property and republishing in the newspaper. A reconsideration allows the Board to reconsider their decision in the case based on the evidence presented at the original hearing; no new evidence is permitted. Chair Carlston called for discussion . Ms. O'Brien stated the Board cannot take new evidence, but can discuss what it has heard in the previous hearing. The requirement is for the Board to put Findings of Fact on the record, rather than just having a "no" vote . Chair Carlston stated she agreed. Mr. Smith stated he didn 't understand how the Board can make negative Findings of Fact. Ms . O 'Brien responded ; Section 16-2-9:E of the Municipal Code states: "Every decision shall be based on findings of fact and every findings of fact shall be supported in the record of the heari ng." The Board will look at the criteria necessary for a use variance and discuss those criteria as • it does in every other case it hears. Mr. Smith asked if each criteria was voted on . Ms. 2 • O'Brien responded no; the Board hasn't voted in that manner in previous cases. Discussion ensued. Ms. O'Brien stated those who voted in favor of the motion would explain how the applicants met the criteria, and those who voted against the motion would explain how the applicants didn't meet the criteria. Mr. Seymour stated he was confused as to why the case was before the Board again. Ms. Reid responded; a Motion for Rehearing was brought forward, which the Board has already voted on; the motion failed. If the Motion for Rehearing had been granted, additional evidence could have been brought forward. Chair Carlston, who voted against the original variance request, asked for a reconsideration of the vote based on the evidence presented in the original request. She has asked the Board to reconsider based on the fact that she feels the Board could have done a better job, and also t o make Findings of Fact which are clear about the basis on which the Board made its decision . The Board has all the necessary information in their packet in which to reconsider its vote. It is time to hold discussion, if needed, and then vote. Any member can change their vote or keep it the same. Ms. Reid requested a recess to consider a point of order. Chair Carlston declared a 10 minute recess. Upon reconvening, all Board members were present. • Mr. Smith stated it has come to his attention that a lawsuit has been filed regarding this case. • Mr. Smith moved; Mr. Seymour seconded: TO ADJOURN INTO EXECUTIVE SESSION TO DISCUSS THE LAWSUIT WITH THE BOARD'S ATIORNEY. AYES: NAYS: ABSTAIN: ABSENT: Bode, Carlston , Davidson, Seymour, and Smith O'Brien None None The Chair announced the motion approved by a 5-1 vote. Upon reconvening, all Board members were present. Chair Carlston called for discussion on the Motion to Reconsider. Mr. Seymour stated that upon reflection, it appears the applicants have the use as a residential property and already have relief to use it for attorneys. It appears they have what they need without further motions. 3 Ms. O 'Brien stated that the applicants are trying to expand the permitted uses beyond • attorneys to include other professional uses, which is the purpose of the variance request. Mr. Bode moved; Mr. Smith seconded : TO AMEND CASE #23-84, AND SUBSEQUENT CASE #32-84, AND CASE #22-86 TO EXPAND PERMITTED USES FROM ATTORNEYS, ARCHITECTS, REAL ESTATE BROKERS, AND ENGINEERS TO ADD PUBLIC AND/OR CERTIFIED PUBLIC ACCOUNTANT, DEVELOPERS, DOCTORS, AND MEDICAL PRACTITIONERS AND OTHER PROFESSIONAL OFFICE USES. THIS IS AN EXPANSION OF THE VARIANCE TO 16-4-2:B, PERMITTED PRINCIPAL USES OF THE ENGLEWOOD MUNICIPAL CODE . With no further discussion, the secretary polled the members ' votes. Mr. Seymour stated he voted "no." The applicants did not meet all 10 criteria, specifically criteri a 1, 2, 3, 5, 8, 9, and 10. Ms. Davidson stated she voted "yes." The property is an unusual size and because of the unusual size, it is the only use possible for the property. The property is already being used for simil ar uses ; therefore, it will not adversely affect the adjacent property or the neighborhood. It is the least modification to grant relief that the applicant want. It may not • be the least modification possible . To get the relief the applicants want, it is probably the least modification. The alleged difficulty or hardship was not self-imposed . It will not affect the public safety and welfare . Ms. O'Brien stated she voted "no " for the following reasons: 1. The property can and is being used for purposes permitted within the zone district applicable to the property and under prior variances granted on the property. 2. The current use, not the proposed use, of the property is most compatible with the standards and policies set forth in the Comprehensive Plan. 3. The proposed use would be detrimental to or incompatible with other uses in the neighborhood as demonstrated by the testimony of the neighbors regarding their concerns. 4. The proposed use is not the least traffic-intensive use possible which will permit some reasonable use of the property. The current use is the least traffic intensive. 5. The alleged difficulty or hardship is self-imposed. The property was subject to se v eral prior variances which are of public record. The property is, and has been • used without difficulty or hardship. It appears the triggering factor is a potential sale. 4 • 6. There are no exceptional topographical conditions which would make the property • • a candidate for a use variance . 7. The requested variance does not observe the spirit of the Ordinance, nor does it secure the public safety and welfare, and it does not achieve substantial justice for the neighbors. 8 . The requested variance would adversely affect the adjacent property or neighborhood as demonstrated by the testimony of the neighbors. 9. The requested variance would substantially or permanently impair the appropriate use or development of adjacent property by increasing traffic in the residential neighborhood. 10 . The requested v ariance is not the minimum variance that will afford relief with the least modification possible of this Ordinance. The variances currently in place are sufficient to provide the applicants a reasonable use of the property and are doing so. Mr. Bode stated he voted "no", concurring with Ms. O'Brien. Mr. Smith stated he voted "yes" based on the following reasons: 1. The pros given in the staff report under the analysis . 2. The use and proposed use will allow this large piece of property, with a large building on it, to be compatible with the Comprehensive Plan. 3. The reason the building has problems is because the city grew up around it; therefore, the hardship is not self-imposed. It is not a residential property any longer, even though residential is technically the only use permitted under the Ordinance without a variance . 4. The traffic will increase around this property due to University Boulevard and Dartmouth Avenue not because of the use on the property. 5. It is least the modification necessary to grant relief to the applicants because that is all he wants, a little bit of relief and modification to the present Ordinance. Chair Carlston stated she voted "no", concurring with Ms. O'Brien. AYES: NAYS: ABSTAIN: ABSENT: Davidson and Smith Bode, Carlston, O'Brien, and Seymour None None 5 The Chair announced the motion denied by a 2-4 vote. Mr. Bode moved; Mr. Smith seconded: THE BOARD OF ADJUSTMENT AND APPEALS APPROVE CASE #13-2001, THE REQUEST OF ROBERT L. PITLER AND MARK LEE LEVINE, 2303 EAST DARTMOUTH AVENUE, TO AMEND CASE #23-84, CASE #32-84, AND CASE #22- 86, TO EXPAND PERMITIED USES FROM ATIORNEYS, ARCHITECTS, REAL ESTATE BROKERS, AND ENGINEERS TO ADD PUBLIC AND/OR CERTIFIED PUBLIC ACCOUNTANTS, DEVELOPERS, DOCTORS, AND MEDICAL PRACTITIONERS, AND OTHER PROFESSIONAL OFFICE USES. IN APPROVING THIS REQUEST FROM MESSRS. PITLER AND LEVINE, THE BOARD IMPOSES THE FOLLOWING CONDITIONS : 1. Principal permitted use of the building and premises shall be only for office use by, but not limited to, accountants, architects, attorneys, engineers, real estate brokers, or similar users. 2. For the purpose of this variance, office shall be defined as a building wherein services are performed involving administrative, professional, or clerical functions and in which retail goods, wares, and/or merchandise are not created or sold. 3. All healthcare practitioners such as, but not limited to, doctors, dentists, psychiatrists, or other health-related practitioners are prohibited . 4. Provided that all other district regulations are met, the building and premises may be occupied by any R-1-A permitted use. 5. The Community Development Department shall make determination as to whether a specific profession is a permitted use under the terms of this variance . If the Community Development Department is unable to make such determination the proposed use shall be referred to the Board of Adjustment and Appeals for a zoning interpretation. 6. No exterior structural alterations to the building shall be permitted. 7. The office use should be operated during regular daytime office hours. 8. The office use shall not generate a high volume of traffic. 9. The parking shall be restricted to the current paved lot area on site as of the date of the approval of this variance and a minimum of 42 parking spaces shall be maintained. 6 • • • • • • 10. No advertising shall be permitted except one (1) identification sign, no larger than permitted under the Sign Code. THIS BOARD ACTION CLARIFIES THAT THE CURRENT VARIANCE APPROVAL SUPERSEDES ALL PREVIOUS VARIANCES, AND VACATES CASE #23-84, CASE #32- 84, AND CASE #22-86. Mr. Seymour clarified that the Board was voting on consolidating the request. Mr. Smith responded that the Board is voting on the stipulation which the applicants reached at the last hearing. Ms. O'Brien stated it is a repeat of the vote at the November meeting, which was a narrowing of the original request. With no further discussion, the secretary polled the members ' votes. Mr. Smith stated he voted "yes" for the same reasons stated earlier, specifically the "pros" contained in the staff report. The advantage of the stipulation is that it clears up the title of the property visa vie the Comprehensive Plan and the other variances. It sets forth with some particularity exactly what the property can be used for and what it cannot. Mr. Bode stated he voted "no." The property can be used for the purpose permitted within the zone district. It is not the least modification necessary to grant relief to the applicants . Ms . O'Brien stated she voted "no" for the reasons previously stated. Further, the variance will not substantially or permanently impair the development of the adjacent property; however, it would substantially and permanently impair the appropriate use of the adjacent property. Further, she concurs with Mr. Bode 's comments. Ms. Davidson stated she voted "yes" for the reasons previously stated. Mr. Seymour stated he voted "no" for the reasons previously stated . Chair Carlston stated she voted "no" for the reasons previously stated . AYES: NAYS: ABSTAIN: ABSENT: Davidson and Smith Bode, Carlston , O 'Brien , and Se y mour None None The Chair announced the motion denied by a 2-4 vote. Ill. APPROVAL OF MINUTES Chair Carlston asked for consideration of the Minutes from the November 14, 2001 public hearing. 7 Mr . Bode moved ; Mr. Seymour seconded : THE MINUTES OF NOVEMBER 14, 2001 BE APPROVED AS WRITIEN. AYES: NAYS: ABSTAIN: ABSENT: Bode, Carlston, Davidson , O 'Brien, Seymour, and Smith None None None The motion carried. The Chair announced the motion approved. IV. APPROVAL OF FINDINGS OF FACT Mr . Bode moved; Mr. Smith seconded: THE FINDINGS OF FACT IN CASE #18-2001, CAROLYN HESS HERZOG AND DON HERZOG , 2130 EAST EASTMAN AVENUE, CASE #19-2001, MATIHEW DE AN , 4868 SOUTH SHERMAN STREET, AND CASE #20-2001, DAVID PHILLIP , 3159 SOUTH UNIVERSITY BOULEVARD, BE APPROVED AS WRITIEN. AYES: NAYS: Bode, Carlston, Davidson, O'Brien, Seymour, and Smith None ABSTAIN: None ABSENT: None The motion carried . The Chair announced the motion approved. V. STAFF ADVISOR'S CHOICE Ms . Langon stated elections will be held at the February 13 meeting. She stated Mr . Seymour is registered for the ICBO Conference, and asked if other members wished to attend. Chair Carlston stated she would be attending through her employer. Ms. Langon further stated there were two cases on the agenda for the February meeting: the Mayflower Church case, which was a continuation. A seventh Board member should be appointed by that meeting, so hopefully there will be quorum . An alternate will be appointed as well. Th e second case is at 383 7 South Clarkson for a porch to encroach into the front setback. Ms. Langon suggested reviewing the Corner Lot regulations. Ms. Langon suggested finishing the meeting and then gathering around the table for the discussion. She assured the Board it would be a short discussion. 8 • • • • • VI. CITY A lTORNEY'S CHOICE Ms . Reid stated she had nothing further . VII. BOARD MEMBER'S CHOICE Mr. Seymour stated he liked the Case History prepared by staff. All board members stated they also liked the "tabs" separating their packet into sections . There was no further business brought before the Board. The meeting was declared adjourned at 8 .50 p.m. 'l/J!&c1~ 9