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HomeMy WebLinkAbout2003-01-08 BAA MINUTES• -- • MINUTES BOARD OF ADJUSTMENT AND APPEALS January 8, 2003 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: Baker, Bode, Carlston, Davidson , O'Brien, Seymour, and Smith Members absent: None Alternate member: Secretary 's note: This position is currently vacant. Staff present: Anthon y Fruchtl, Planner I Nancy Reid , Assistant City Attorne y 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 Ill, Section 60 of the Englewood City Charter . Chair Carlston set forth parameters for conduct of hearings : The case will be introduced; 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 #1-2003 Maxim Construction Management 3280 South Cherokee Street Chair Carlston declared the Public Hearing open, stating she had proof of posting and publication. She introduced the case by stating it is a variance to encroach 3 feet into the required 6 foot rear yard setback. This is a variance to 16-4-4 :M 1 e (2) Minimum Rear Yard of the Englewood Municipal Code. Chair Carlston further stated she had three photographs submitted by the applicant. Chair Carlston circulated the photos among the Board. Jean-Pierre Grosjean of Maxim Construction Management, 2541 Marion Street, was sworn in for testimon y. Mr . Grosjean thanked the Board for hearing the case. Due to contractor error in the placement of the garage, the rear yard setback was misread based on the alley line. One photograph shows the current garage and alley . He measured the setback from the navigable portion of the alley. Mr . Grosjean stated that due to a personal tragedy, he 1 • • was behind schedule on the construction. His wife died the beginning of September, and so he-was behind schedule. Rather than going through the normal procedure of calling for an inspection through the City, he had the forms prepared and had an engineer certify the foundation was to Code. Unfortunately, the engineer didn't know anything about setbacks. When the project moved forward it was without the benefit of a City inspector coming out to tell him where the actual edge of the alley was located. Mr. Grosjean testified that the exceptional circumstance in the case is that the garage is already completed. He learned of the problem with the setback once he called in for a final inspection. Once he became aware of the encroachment, it was too late to modify the structure. He recognizes that the Ordinance is in place to keep Building Codes and construction uniform, but the photographs show the garage in relation to the other garages along the alley. The garage does not interfere with the passage of trash or utility traffic. The garage is set back 7 feet from the navigable portion of the alley, as shown in the photographs. The neighbors in the area were contacted and the garage does prohibit them from entering their properties or future construction. Statements from the neighbors were submitted to the Board , and they indicate that none of those neighbors object to the variance. Further, the adjacent properties are already built and the subdivision is completely developed at this point. Unfortunately, there is no other alternative but to encroach into the rear setback. The homeowners have been Englewood residents for a number of years, and their desire is to improve their property. They built a new garage to ease off-street parking. Mr. Seymour stated he didn 't understand how Mr. Grosjean could mistake where the property line was located . It appears that the property line is · very well defined by where the fences are located . Mr. Seymour stated that he was not aware of the term "navigable edge of the alley." Mr. Grosjean responded that it isn't much of a defense but the navigable portion of where a vehicle can be driven is what he incorrectly based the setback. In his experience in dealing with other jurisdictions, typically the alley is the back property line, which is why he based the measurement on the alley. Mr. Seymour reiterated that he didn't know how Mr. Grosjean could make that kind of mistake when it is so obvious where the fences are located. Ms. O'Brien stated the applicant has admitted an error occurred and would like to move on. She stated she has a concern regarding the current access to the garage. She further stated that she is confused with the comments from the Engineering Division and Public Works Department. The comments seem to be at odds with each other. Ms. O'Brien stated she understood the concrete drive must be removed out of the alley right-of-way, which means the homeowners will go up a steep incline to the garage. Further, the alley cannot be regraded due to drainage issues. Her concern is how the owners will be able to use the garage and how it will not impact the alley when the owners are having trouble accessing the garage . Mr. Grosjean responded; an apron was poured for the garage which encroached 3 feet into the alley right-of-way. The City requested that he saw cut and remove that portion out of 2 • • the right-of-way, which he has done as shown in the photographs. The property owners have not informed him of any issue with accessing the garage. There is a drain located in the alley at the southeast corner of the garage that sits low in the alley . The garage does not impact it at all. Ms. O'Brien asked if he was a licensed contractor in the City of Englewood. Mr. Grosjean responded that he is. Ms. O 'Brien asked whether or not he made a conscious choice not to have the foundation inspection performed by the City of Englewood. Mr. Grosjean stated due to time constraints, the decision was made to have an engineer come out to certify the work. Chair Carlston clarified that Mr. Grosjean had a certified note from the engineer stating the foundation is safe, protecting the property owners. Mr. Grosjean stated that was correct. Anthony Fruchtl , Planner I was sworn in for testimon y. Ms. O 'Brien stated she was confused b y the comments in the staff report from the Engineering Division and Public Works Department. She asked for clarification regarding the cleanin g of the inlet and regrading of the alle y in front of the garage. Mr. Fruchtl responded ; the comments from the Engineering Division relate to the inlet located on the southeast corner of the garage . When the apron was poured, it was located very close to the inlet and the potential for debris and runoff posed a greater risk of clogging the inlet. The request from the Engineering Division was to cleanup the area to ensure there was no concrete or debris located in the inlet which would impede the drainage . The concerns from Public Works are with the location of the garage and the potential of a steep incline . Public Works stated they do not have the ability to regrade the entire alley to accommodate the steep incline to make access to the garage easier for the homeowners. Ms . O 'Brien asked whether or not the requests from the Engineering Division had been accomplished. Mr. Fruchtl stated he drove b y the property and it appears to have been completed . He spoke with Larry Nimmo from the Engineering Division, and Mr. Nimmo will be going out to verify that all the concrete sawing is completed. Through the development review process, the garage will not be finalized and the homeowners will not be able to use the garage until the Engineering Division is satisfied that the necessary corrections have been made. Mr. Smith asked if the City grades the alle y on a regular basis. Mr. Fructhl stated he did not know. Mr. Smith stated that it seems to be a make-shift solution currently. A more permanent solution involving concrete across the alle y would be better than what currently exists. A better solution would be for the property owners and the City to get together to work out a permanent solution. Mr. Fruchtl stated the alleys are maintained by the City, but the Public Works Department will not be able to make any type of special concessions to raise the grade of the alley to accommodate the accessibility into the garage . Mr. Smith stated he understood, but he is wondering if the burden of maintaining the accessibility should shift from the City to the property owner since they created the problem. It is not the City's responsibility to repair the grade . 3 • • Mr. Seymour asked staff to clarify why a 6 foot setback is better than a 3 foot setback. Mr . Fructhl stated that the Ordinance required a 6 foot setback due to accessibility and visibility for a person backing out of or entering the garage off the alley . A 3 foot setback would be permitted if the garage is not accessed from the alley . If the entrance door was off of Cherokee rather than the alley, the garage would be in compliance with the Ordinance. Mr. Smith confirmed that is why the garage immediately to the south does not violate the setbacks. Mr. Smith stated the garage to the south appears to be built on the same line as the Mellons' garage, but it does not have a garage door on the side of the alley . 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. Mr. Seymour moved; Mr. Smith seconded: THAT CASE #1-2003 , 3280 SOUTH CHEROKEE STREET, BE GRANTED A VARIANCE TO ENCROACH THREE (3) FEET INTO THE REQUIRED SIX (6 ) FOOT REAR YARD SETBACK TO ALLOW AN EXISTING 26'x30' SEVEN HUNDRED EIGHTY (780 ) SQUARE FOOT GARAGE TO REMAIN WITH THE FOLLOWING CONDITIONS: 1. THE APPLICANT SHALL REMOVE THE CONCRETE OUT OF THE ALLEY RIGHT OF WAY; 2. THE APPLICANT SHALL CLEAN OUT THE IN-LET IN FRONT OF THE GARAGE; AND 3. THE APPLICANT SHALL RE-GRADE THE ALLEY IN FRONT OF THE GARAGE. THIS IS A VARIANCE TO 16-4-4 :M 1 e (2 ) MINIMUM REAR YARD OF THE ENGLEWOOD MUNICIPAL CODE. Mr. Smith suggested that perhaps the applicant should comply with any requests from the City regarding the concrete. It seems that the City may want to put it back rather than remove it. Mr. Fruchtl stated that the concrete located at the inlet was poured by the City. The applicant was encroaching into the alley right-of-way with their own concrete. The City wants to eliminate the potential of the applicant's concrete coming off their property into the alley right-of-way which might cause debris to clog the inlet. Mr. Seymour stated he hated it when applicants played the "stupid card" or the "I made a mistake card." If someone is a licensed contractor doing business, he/she should be able to hit the bull's eye closer than the applicant. Mr. Bode stated the other 8 garages in the alley do not meet the 6 foot setback . Mr. Seymour stated that those garage doors do not face the alley . The Ordinance specifies a different setback if the entrance is off the alley . 4 -----•• Ms. O'Brien stated mistakes happen and it was a 50% mistake; but there is the issue of economic waste on one hand and a safety issue on the other. Mr. Smith stated he didn't believe there was a safety issue. When backing out, the owners wouldn't be able to see past the garage next door even if the owners' garage were at the correct setback. Also, they have to get past the fence line to see up or down the alley. Further, all the garages in the alley seem to be built on the same line. Mr. Bode agreed. Discussion ensued. Chair Carlston . acknowledged the safety issue, but stated the Board has granted variances in the past with the same proximity to the alley . With no further discussion, the secretary polled the members' votes. AYES: NAYS: ABSTAIN: ABSENT: Baker, Bode, Carlston, Davidson, O'Brien , and Smith Seymour None None Mr . Smith stated he voted yes. The exceptional circumstance is the economic waste of tearing down the garage and rebuilding it. It does secure the public safety and welfare and achieves substantial justice since it doesn 't require the waste that would occur to rebuild the garage . The adjacent property is built on the same "line " so it will not adversely affect that property . It will not substantially or permanently impair the appropriate use or development of adjacent properties since it is already developed and is on the same fence line. It is the minimum variance that will afford relief with the least modification possible . Mr . Baker, Mr. Bode , Ms. Davidson , and Chair Carlston stated they voted yes , concurring with Mr. Smith. Ms. O 'Brien stated she voted yes because the arguments put forth by Mr . Smith were persuasive. Although she had concerns about the safety, she overruled those concerns due to statements of the neighbors stating they had no objections . Mr. Se ymour stated he voted no . A safety issue exists . The Chair announced the motion approved by a 6-1 vote. Ill. APPROVAL OF MINUTES Chair Carlston asked for consideration of the Minutes from the December 11, 2002 public hearing. Chair Carlston stated that Ms. Davidson should be shown as absent rather than abstaining. Staff indicated that Ms. Davidson was at the December meeting and was abstaining from approving the November Minutes. Mr . Smith moved; • Mr . Bode seconded: THE MINUTES OF DECEMBER 11, 2002 BE APPROVED AS WRITIEN. 5 • • 'N: · Jde, Carlston, O'Brien, Seymour, Smith ,1dson ~one .i carried. The Chair announced the motion approved by a 6-0 vote. APPROVAL OF FINDINGS OF FACT .Ar. Smith moved; Mr. Bode seconded: THE FINDINGS OF FACT IN CASE #18-2002, 4898 SOUTH GALAPAGO STREET, CASE #19-2002 , 4501 SOUTH GALAPAGO STREET, AND CASE #20-2002, 3205 SOUTH HIGH STREET, BE APPROVED AS WRITIEN. AYES: NAYS: ABSTAIN: ABSENT: Baker, Bode, Carlston , O'Brien, Seymour, Smith None Davidson None The motion carried . The Chair announced the motion approved by a 6-0 vote. V. STAFF ADVISOR'S CHOICE Mr. Fruchtl reminded the Board of the joint meeting on Thursday, January 9 at 6:30 p.m . in the Community Room. Additionally, there are no cases for February. Elections were scheduled in February, but if the Board doesn 't wish to meet in February, elections can be moved to the March meeting. The Board decided not to meet in February. VI. CITY A TIORNEY'S CHOICE Ms. Reid stated she had nothing further. VII. BOARD MEMBER'S CHOICE Ms. Davidson asked if the joint meeting on January 9 was required. Mr. Fruchtl stated it was not required. Ms. Reid stated it was a meeting for input from the Board, Planning Commission, and City Council on the Unified Development Code . 6 • • There was no further business brought before the Board. The meeting was declared adjourned at 8:10 p.m . 7