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HomeMy WebLinkAbout2004-05-12 BAA MINUTES.. • • • MINUTES BOARD OF ADJUSTMENT AND APPEALS May 12, 2004 I. CALL TO ORDER The regular meeting of the Englewood Board of Adjustment and Appeals was called to order at 7:30 p.m. in the Englewood City Council Chambers, Chair Sprecace presiding . Members present: Members absent: Staff present: Bode, Cohn, O'Brien , Shotwell, Smith, Sprecace Carlston (excused) Anthony Fruchtl, Planner Tricia Langon, Senior Planner Nancy Reid, Assistant City Attorney Chair Sprecace stated there were six members present; therefore, five affirmative votes are required to grant a variance or appeal. Chair Sprecace 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 . Variances granted by the Board are subject to a 30-day appeal period. Variances are effective at the end of the appeal period. Building permits for construction associated with an approved variance will not be issued until the appeal period is ended . Building permits must be obtained and construction begun within 180 day s of the variance 's effective date. Chair Sprecace set forth parameters for the hearing : 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 Boa rd . II. CASE #2004-12 Brett and Linda Westerfield 3035 South Cherokee Street Chair Sprecace declared the Public Hearing open, stating he had proof of posting and publication. He introduced the case by stating it is a variance to encroach 3 feet into the required 3 foot Side Setback. This is a variance to Table 16-6-1.1 of the Unified Development Code. Additionally, the applicants are requesting a variance to penetrate the bulk plane by 6 feet beyond the maximum 12 feet allowed . This is a variance to Section 16-6-1 :3 Bulk Plane Requirements of the Unified Development Code. Brett and Linda Westerfield, 3035 South Cherokee Street, were sworn in. Mr. Westerfield testified they would like to construct a two-story addition with a basement. The existing 1 • porch would be removed and extend out from the house 20 feet; the existing width would be maintained. • • Mr. Cohn stated he drove by the house; it appears from the drawing in the packet that the house sets back off the property line and the encroachment would be the second story addition. Mr. Westerfield stated the drawing is a bit deceiving; the north fence is built approximately three feet off the property line. The property line misses the front of the house by approximately three inches and misses the rear property line by approximately one inch . Mr. Westerfield stated they acquired an easement from their neighbor granting them use of the three feet; however, legally the property line is still on the side of the house. Mr. Westerfield stated there is an enclosed porch that extends along the west side of the house. Ms. Shotwell asked the applicants if they considered the alternative listed in the staff report which suggests they could construct the addition in such a way that wouldn 't require a variance from the bulk plane or side setback. Mr. Westerfield responded that option was considered but the problem is there is an existing basement under a portion of the house and the entrance to the basement is on the north. Mr. Westerfield submitted a drawing into evidence for the Board to review. Mr. Westerfield stated the main entry to the basement is approximately three feet off the property line. There is a utility room on the south but the floor is higher than the remainder of the basement. The ceiling height is approximately 6 feet 2 inches. Ms. Shotwell asked how problematic it would be to move the basement door. Mr. Westerfield stated he would need to tear out the floor. There is also a cinder block foundation on part of the room and the southern ten feet is dirt. Ms . Shotwell asked if he planned to dig out that portion. Mr . Westerfield stated he did not; it doesn't seem as cost effective as building a new structure. Ms . Shotwell stated she drove b y the property; it appears the neighbor built an addition which is close to the property line. She asked if the neighbor had any concerns with the proposed addition being so close to his house. Mr. Westerfield stated his neighbor submitted a statement supporting the variance and doesn 't understand why the City is telling them how to build on their property. Regarding the submitted drawing, Mr. Smith asked what the dotted line on the south represented. Mr. Westerfield stated it represents the fence, which is approximately three feet off the property line on each side. Mr. Smith asked what the easement permitted. Mr . Westerfield stated the easement allows him to use the property as if he owned it. Mr. Cohn asked if the easement was in writing. Mr. Westerfield responded "yes"; it is a permanent, recorded easement that passes to subsequent owners . Ms. Shotwell confirmed the neighbor's house is one story. Mr. Westerfield stated that was correct. Ms. Shotwell also confirmed that the two-story addition would be 9 feet from the side of the neighbor's house. Mr. Westerfield stated that was also correct. 2 • • Chair Sprecace asked the applicants if they had considered any alternatives . Mr. Westerfield stated they considered expanding the house to the rear and not adding a second story. This alternative eliminates the bulk of their yard. The lot is substandard; it is only 38.5 feet as opposed to 50 feet. Ms . Shotwell asked how long they have lived in the house. Mr. Westerfield stated they have lived in the house for approximately 11 years. Anthony Fruchtl , Planner was sworn in for testimony . Mr . Smith asked if the easement was taken into consideration . Mr. Fruchtl stated according to the applicant, the easement was originally created for the maintenance of the property. It also gave the applicant the ability to traverse on his neighbor's property for upkeep and maintenance. Mr. Smith asked if staff considered asking the City Attorney what impact the easement might have on setbacks . Mr . Fruchtl stated he did not. There were no other persons present to testify for or against the variance . Chair Sprecace incorporated the staff report and exhibits into the record and closed the public hearing . Mr . Smith mo ved; Mr. Bode seconded : THAT CASE #2004-12 , 3035 SOUTH CHEROKEE STREET, BE GRANTED A VARIANCE TO ENCROACH 3 FEET INTO THE REQUIRED 3 FOOT SIDE SETBACK AND A VARIANCE TO PENETRATE THE BULK PLANE BY 6 FEET BEYOND THE MAXIMUM 12 FEET ALLOWED . THESE ARE VARIANCES TO TABLE 16-6-1.1 AND SECTION 16-6-1 :3 BULK PLANE REQUIREMENTS OF THE UNIFIED DEVELOPMENT CODE. Mr. Smith stated that without having read the easement, it appears the easement might extend his property line 3 feet to the north. Ms . Reid stated she has not read the easement; it could purport to do what Mr. Smith indicated, but on the strength of the applicant's testimony she doesn't believe the easement would change the setbacks for the platted lot. Mr. Smith stated he didn't know if it had any effect on the ordinance. Ms . Shotwell stated the applicants purchased the house on a lot that had existing limitations, and extended the scope of their ownership as broadly as they can. They are asking to encroach 3 feet into the setback; the fence is already 3 feet off the property line ; and they are asking to encroach into the bulk plane 6 feet. The applicants have an alternative that makes both encroachments unnecessary. The applicants stated it would be inconvenient and would cost more to move the basement door. In light of the fact that it is 9 feet from the adjacent house, the two story addition would tower over the neighbor's house. Even though the neighbor has agreed to the request, if the variance were granted • she doesn 't see where the setbacks would ever be respected . 3 • Ms. O'Brien stated there are alternatives available; the request is not defensible under the circumstances. Mr . Smith stated the bulk plane is a different issue . The side setback is not an issue for him. The applicant has the right to use 3 feet of his neighbor's property for some purposes which may or may not impact the zoning regulations. With the easement, it appears the neighbor has given up the right to that 3 feet and would at least comply with the spirit of the ordinance. Ms. Shotwell stated an easement for care and maintenance does not permit the digging of window wells and extend the use beyond care and maintenance. Ms . Reid stated it is difficult to determine the extent of the easement since a copy was not submitted. Ms. O'Brien stated before she relied on any easement, she would want a copy submitted for review. The more concerning issue is the 9 feet between the houses and the adverse impact it may have on the neighbor's property in terms of future sale. Chair Sprecace stated he agreed; the request is too much for the lot. Mr. Smith noted the existing garage encroaches into the easement. With no further discussion, the secretary polled the members' votes. • Mr. Smith stated he voted no; there are unusual and unique physical conditions because of the age of the house and the smallness of the lot. The easement provides the applicant some credence to extend the side yard. The combined variances are too much for the property. The bulk plane variance is not consistent with the intent of the zone district regulations . A variance to the bulk plane would permanently impair the use or development of the adjacent properties. The request to extend into the bulk plane is a self- imposed hardship. • Mr. Bode stated he voted no, concurring with Mr. Smith. Mr. Cohn stated he voted yes; the various City departments reviewed the request and indicated they didn 't have a problem. One of the goals of the Unified Development Code is to allow more flexibility in constructing additions onto houses. The design looked good. Ms. Shotwell stated she voted no. There are alternatives available . Ms . O'Brien stated she voted no. There are alternatives available, and it is a determination being made by the Board of Adjustment and Appeals and not by City departments. Chair Sprecace stated he voted no, concurring with Mr. Smith . AYES: NAYS: ABSTAIN: Cohn Bode, O'Brien, Shotwell, Smith, Sprecace None 4 • ABSENT: Carlston The Chair announced the motion denied by a 1-5 vote and instructed the applicant to contact the Planning staff for any additional or necessary information. Ill. APPROVAL OF MINUTES Chair Sprecace asked for consideration of the Minutes from the April 14, 2004 public hearing . Mr. Smith moved; Ms. O 'Brien seconded : THE MINUTES OF APRIL 14, 2004 BE APPROVED. AYES: NAYS: ABSTAIN: ABSENT: Bode, Cohn, O 'Brien, Shotwell, Smith , Sprecace None None Carlston Motion carried. The Chair announced the motion approved by a 6-0 vote. IV. APPROVAL OF FINDINGS OF FACT • Mr. Smith moved; Mr. Bode seconded : • THE FINDINGS OF FACT IN CASE #2004-04, 2998 WEST TANFORAN AVENUE, BE APPROVED AS WRITIEN. AYES: NAYS: ABSTAIN: ABSENT: Bode, Cohn, O 'Brien , Shotwell, Smith , Sprecace None None Carlston The motion carried. The Chair announced the motion approved by a 6-0 vote. V. STAFF ADVISOR'S CHOICE Mr. Fruchtl stated no cases had been submitted for the June meeting. It was the consensus of the Board to cancel the June meeting. VI. CITY ATTORNEY'S CHOICE Ms. Reid stated she had nothing further . 5 • VII. BOARD MEMBER'S CHOICE • • Mr. Smith asked if staff verifies ownership of the property. Mr. Fruchtl responded that ownership is verified through the Arapahoe County Assessor's Office. Mr. Smith asked whether or not staff would have consulted with the City Attorney's office if the applicant had submitted a copy of the easement. Mr. Fruchtl stated he would have asked the City Attorney to review the easement. An easement typically grants the ability to use the property, but it does not dictate the property line or any of the setbacks associated with the property. In this particular case, the easement had no bearing on the variance request. The setbacks are measured from property lines. There was no further business brought before the Board. The regular meeting was declared adjourned at 8 :00 p.m . VIII. STUDY SESSION The study session was called to order at 8:05 p .m. in the Englewood Community Room . Members present: Members absent: Staff present: Guests present: Bode, Cohn, O 'Brien , Shotwell, Smith, Sprecace Carlston (ex cused ) Anthony Fruchtl, Planner Tricia Langon, Senior Planner Robert Simpson, Director of Community Development Dan Brotzman, City Attorney Nancy Reid , Assistant City Attorney Mayor Douglas Garrett Councilman John Moore, District II Mayor Garrett, Councilman Moore and Board members discussed the following items: • Quasi-judicial nature of the Board. • City Council and Board authority regarding variances. • Criteria the Board uses when considering a variance. • Board votes and findings as part of public record . • Communication between the Board, City Council, and staff. The study session was declared adjourned at 9:00 p .m . 6