HomeMy WebLinkAbout2004-08-11 BAA MINUTES•
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MINUTES
BOARD OF ADJUSTMENT AND APPEALS
August 11 , 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: Bode, Carlston, Cohn, O 'Brien, Shotwell, Smith , Sprecace
Members absent: None
Staff present: Anthon y Fruchtl, Planner
N ancy Reid, Assistant City Attorney
Chair Sprecace stated there were se v en members present; therefore, five affirmative votes
are required to grant a va riance or appeal. Chair Sprecace stated that the Board of
Adjustment and Appeals is empo we red to grant or deny variances by Part 111 , Section 60 of
the Englewood City Charter. Variances granted by the Board are subject to a 30-day
appeal period. Variances ar e effecti v e at the end of the appeal period. Building permits for
construction associated with an approve d variance will not be issued until the appeal
period is ended . Building p e rmits mu st be obtained and construction begun within 180
days 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 spe ak; opponents will address the Board; and
then staff will address the Board.
II. CASE #2004-20
Stephen King
3911 South Sherman Street
Chair Sprecace declared the Public Hearing open, stating he had proof of posting and
publication. He introduced the case b y stating it is a variance to encroach 1.3 feet into the
required 5 foot Side Setb ack. This is a variance to Table 16-6-1 .1 of the Englewood
Municipal Code. Additionally, the applicant is requesting a variance to penetrate the bulk
plane by 1.2 5 feet be y ond the maximum 12 feet allowed . This is a variance to Section 16-
6-1 :3 Bulk Plane Requirements of the Englewood Municipal Code.
Stephen King, 3 750 West Arrowhead Road, was sworn in. Mr. King testified that he is
currently under contract to purchase 3911 South Sherman contingent upon approval of the
variance request. Mr. King st ated his intention is to remodel the existing home on Lots 45
and 46, and build a new home on the adjacent Lots 47 and 48 . Since the Zoning
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Ordinance has changed since the original structure was built, it will require a variance to
the north setback and bulk plane requirement. Mr. King stated he wished to specifically
address the negative points in the Staff Report. The original owner currently owns the
property. He purchased Lots 45 and 46 in 1945 and built the house in 1946. He met the
building requirements at the time which required a 3 foot side yard setback. Many other
homes in the area also have a 3 foot side setback. Several years later, the owner purchased
Lots 4 7 and 48 and never built on that property. During the life span of the property, all
four lots were combined into one parcel through the County Assessor or otherwise.
Mr. King continued; building on the property affords him or the owner economic gain;
however, by not allowing the owner to return the property to its original buildable state
harms the current owner economically as the property's value will decrease from the
current price. It also affords the City economic gains through additional property taxes , as
well as increasing the property value of the adjacent property owners by improving the
property with a new house and completing the block.
With regard to demolishing the ex isting house to create two buildable parcels, the existing
house has far too much value at this time to destroy it, and would not make economic
sense . The cost of the property as is , along with demolishing costs and building costs
would make this option prohibitive .
Regarding the second criterion, Mr. King stated the intent of the five foot side setback is to
maintain 10 feet between structures for fire safety. By granting a 6 .3 foot "no build "
easement on Lots 4 7 and 48 , there will alway s be 10 feet between structures . Regarding
the bulk plane requirement, having 10 feet between structures is no more of an impact on
each property owner than if the property lines were at a five foot setback from each house.
The existing house would not be encroaching into the bulk pl a ne under that scenario .
When the house was built, there were no bulk plane requirements. In addition, the
encroachment into the bulk plane is a very minimal amount -onl y the extreme upper
triangle portion of the gable roof.
Regarding impaired use of adjacent properties, the applicant testified a new home would
be built on Lots 47 and 48 , and the "no build" easement would be disclosed when it was
sold. It is no different than a utility easement or other easements of record . Since any
prospective owner will be aware of the easement prior to purchasing the property, there is
nothing to be taken away from them. As far as Lots 47 and 48 being historically vacant, in
his opinion it currently looks like a vacant lot and is not well maintained. It does not appear
to be part of the existing house, and there is a fence separating the properties at this time.
Regarding the fourth criterion, it would not be economicall y feasible to demolish the
existing house. In reality, the new City regulations would impose an economic hardship to
the current owner by not granting the variance. The owner bought Lots 45 and 46 and
built his house to the current standards . Several years later he purchased Lots 47 and 48
and never built on those lots. If another party had purchased those same lots and sold
them today, he could build on them with no issue. If the lots were not combined into one
parcel many years after the existing home was built, the current owner could build on Lots
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47 and 48 without issue. Building a new home on the existing parcel would not do any
harm to the neighborhood, but will benefit the neighborhood. The adjacent property
owners are in favor of the request.
Mr. King respectfully asked the Board to grant the variance.
Mr . Smith asked the applicant why he didn't divide the property into two lots with one of
them being Lot 48 plus the North 48.7 feet of Lot 47. Mr. King stated the Zoning
Ordinance requires 50 feet of frontage on each parcel and a minimum of 6,000 square feet
of lot area. Each lot has 25 feet of frontage. Mr. King stated he has explored several
options, and the variance is the most logical. By granting the easement on the south of Lots
47 and 48, 10 feet will always be maintained between structures.
Mr. Smith stated the Board would be granting a variance to one part of the Code or the
other. Mr. King stated it didn 't matter what part of the Code was varied, as long as the site
was buildable. He wants to be able to utilize all the land. Mr. Smith stated it probably
didn't make much difference; the Board could also grant a variance to the 50 feet
requirement. Mr. Smith noted that staff was shaking his head "no." Mr. Smith stated he
would like to hear from staff. Chair Sprecace stated there were more questions for the
applicant.
Ms. Carlston asked if the decision of the Board would affect the sale of the property. Mr .
King responded that the sale is contingent upon the Board's decision. Ms . Carlston
confirmed that if the variance is granted, he plans to build a house on the vacant lot and
then sell both properties. Mr . King stated he plans to build a craftsman-style home, which is
consistent with the neighborhood, on the vacant lot, remodel the existing house, and then
sell both properties.
Ms . Shotwell asked if the easement had been prepared. Mr. King stated it has not; the
easement will be 6 .3 feet "no build " easement along the south side of Lot 47. It is a "done
deal" provided the variance is approved. He has no issue with the easement. Ms. Shotwell
expressed her appreciation that the applicant was prepared and had looked at different
options.
Ms. O'Brien stated she heard the presentation and is not convinced the fourth criterion has
been met. This is a self-imposed hardship. The original owner is the current owner,
combined the lots, and is now seeking to sell it to an investor or builder who wants to build
on the property. She asked how it was not a self-imposed hardship.
Mr. King stated he does not have an answer to how the parcels were combined. The
owner bought Lots 45 and 46 in 1945, and then bought the other two lots in the late 50's
or early 60's. He searched all the records up to 1955 and was unable to find the second
deed . Ms. O'Brien stated that in the Staff Report, staff indicates that Lots 47 and 48 were
purchased by current owner and combined with Lots 45 and 46 at a later date. Ms.
O'Brien stated she doesn't believe that "just happens."
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Mr . King stated that sometimes the Tax Assessor automatically combines the properties.
Mr. King stated the owner is present if the Board wishes to ask him questions. The
applicant stated he was unaware of whether or not the lots were combined by the owner
or the Tax Assessor.
Mr. Smith stated it may have "just happened." He recalled a case in Boulder where the
Assessor combined the lots for various reasons, and the owners were unaware that the lots
were combined. When the owners tried to sell their extra lot, they ran into the same
problem. It would not surprise him to learn that the Assessor had combined the lots. Mr .
Smith stated if the owner has two deeds to the properties, then the Board doesn't need to
be involved. Mr . King stated he has a copy of the deed for Lots 45 and 46 , and submitted
it into the record. He was unable to find the deed for Lots 47 and 48 because he didn't
know when it was purchased.
Ms . O 'Brien stated that was not the issue; her concern 1s how the properties were
combined.
Daniel Percefull , 6628 South Marion , was sworn rn . Mr. Percefull testified that he
represents Mr . Eggleston as his real estate agent. He has done a lot of research to
determine how the property was originall y deeded . He stated he doesn't know how the
properties were combined, but the title company has done a title search and has
determined that it is listed as one parcel. He stated he believes it was done for tax reasons.
Being a real estate agent, he has had the benefit of representing other clients in Englewood.
The uniqueness of the City creates a lot of value to the Denver market by access to
downtown, reasonably priced housing, and the school district. He is happy to see
Englewood increasing in property values and recently sold a property on Grant Street for
approximately $250,000 . From a tax standpoint, it helps the base of the community. The
vacant lot adjacent to 3911 South Sherman negativel y impacts the neighborhood.
Mr . Eggleston has been a longtime Englewood resident. Until February 2004 when the
Zoning Ordinance changed, the property was zoned, with 100 feet of frontage, to allow a
duplex or even a tri-plex with 75 feet frontage. When the Zoning Ordinance changed, it
negatively impacted Mr . Eggleston's use of the property.
Ms. O'Brien clarified that he does not know why the two parcels were combined. Mr .
Percefull stated that was correct; he is not sure if Mr. Eggleston or the Tax Assessor
combined the lots.
Mr . Smith asked where they are shown as one parcel. Mr. Percefull stated the title
commitment shows the property as one legal description, Lots 45-48 . He submitted a copy
of the title commitment into the record . · The property is also described in the County
records as one parcel and has one tax identification number.
• Chair Sprecace asked if there is a separate deed for Lots 47 and 48. Mr . King stated there
is a deed; however, he does not have it in his possession but can provide it if necessary.
Ms. O 'Brien reiterated that is not the issue . The issue is how the lots were combined .
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Anthony Fruchtl, Planner, was sworn in. Mr. Fruchtl stated in response to Mr. Smith 's
earlier question , due to the Zoning Ordinance change, the Board is unable to grant
variances to lot frontage or to lot area. This is the reason why the applicant had to apply
for this specific variance. With regards to Ms. Shotwell's question regarding the preparation
of the easement, a separate document is not required . The easement will be located on the
Final Plat when it is submitted and recorded at the County. With regards to lot
combinations, those are applied for at Arapahoe County; the City does not have forms for
lot combinations. The City is notified by the County when lots are combined.
Mr . Smith asked how the parcel was combined. Mr . Fruchtl responded; according to the
title commitment submitted b y the applicant, it shows the property as Lots 45-48. The
County Assessor 's records also shows it legally described as Lots 45-48. An individual
parcel identification number is not assigned to each individual lot; it considered one piece
of property. The parcel number assigned is for all of Lots 45-48 . Mr. Smith stated that is
the Assessor's office; he asked what the Clerk and Recorder 's Office shows.
Mr. Smith stated the o w ner purchased two parcels; four lots at two different times . For
ease of assessment purposes, he believes the Asses sor combined those lots into one parcel
so only one tax st atement is sent. He doesn 't belie ve there is one deed deeding all four
lots . There hav e be e n two deeds at all times . Had the own e r purchased the other two lots
in his wife 's name, there wouldn 't be an issue .
Ms. O 'Brien stated that is one possible expl a nation ; another is the owner had them
combined . Mr. Smith stated the only legal wa y to combine the lots is to record one deed
with all four lots in th e same deed.
Ms . Carlston clarified that if the sale didn 't occur, the owner would still need the variance to
subdi vide the property. Mr . Fruchtl stated that was correct; pending the approval of the
variance, the applicant will tak e the property through the minor subdi vision process.
Mr. Smith stated the City cannot control whether Lots 4 7 and 48 are sold off separately.
Mr . Fruchtl stated if the owner had sold off the lots separately and when plans for building
permits were submitted for Lots 47 and 48, staff would research the County to determine if
the property was legall y subdivided . A land surve y plat would be requested and it would
sho w the property combined as Lots 45-48 . Mr . Smith stated the title commitment would
not be for all four lots. Mr . Fruchtl stated at the time of applying for a building permit, it
would be determined through the Assessor 's Office that the property was not subdivided .
The owner would then have to proceed throu gh the minor subdivision process.
Ms. Reid clarified; if the owner presented a deed for Lots 4 7 and 48 when applying for a
building permit, even though the Assessor had one parcel number for four lots , the staff
would have still given him a building permit or would staff have directed the owner to the
Assessor 's Office to have the parcel number changed . Mr. Fruchtl stated by deeding off
two lots , an illegal subdivision would occur . Ms. Reid clarified that was true even if there
were two separate deeds. Mr . Fruchtl stated that was corre ct. Ms . O 'Brien stated once
there is a parcel number, the title comp any picks it up as one parcel.
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Ms. Shotwell stated she didn't understand the issue and why it matters. Ms. O'Brien stated
it matters to her because if the owner combined the properties, then it is a self-created
hardship. Ms. Shotwell asked if Ms. O'Brien thought the house should be torn down. Ms .
O 'Brien responded no ; but she doesn't beliveve the fourth criterion has been met.
Gilbert Eggleston, 5225 South Prince Street, was sworn in. Mr. Eggleston stated he moved
to Littleton approximately four months ago. Mr. Eggleston stated he moved to Englewood
in 1926 . Mr. Smith asked when he moved to 3911 South Sherman Street. Mr . Eggleston
stated he built the house in 1945 and was built according to the City's regulations. Mr .
Smith asked if it was built on two lots. Mr. Eggleston stated that was correct. Mr . Smith
asked when he purchased the other two lots. Mr. Eggleston stated he doesn 't have those
records with him, but it was in the late 50's or early 60's. Mr. Smith asked why he
purchased Lots 47 and 48. Mr . Eggleston stated there wasn't any specific reason other than
he wanted them . His wife didn 't want to have anything built on the vacant lot because she
liked the lots as is . He further stated he was a member of the Englewood Volunteer Fire
Department for 25 years . Mr . Smith asked if he ever asked the City to combine the lots
into one lot. Mr . Eggleston stated no; there are four lots and you don 't combine four lots
into one. Mr . Smith stated some people do . Mr. Eggleston stated he never requested that
the lots be combined .
Chair Sprecace asked if he knew how the lots were combined into one legal description.
Mr. Eggleston stated the Tax Assessor asked him wh y he paid taxes on two different
sections instead of just combining it into one; he told the Assessor to put all the lots
together so he paid taxes on the four lots at one time.
Ms. Reid asked staff for clarification ; the application is for a variance for the side setback for
the existing house. If the owner sells the vacant lot and complies with the current setbacks,
a house could be built. The existing house would then be a nonconforming setback. Mr .
Fruchtl stated if the variance is granted, it gives the owner the ability to subdivide the
property. Ms. Reid clarified that staff will not subdivide the property under the current
regulations because it will create a nonconforming setback on the existing house. Mr.
Fruchtl stated that was correct. If a minor subdivision application were presented without
the variance, it would violate the side setback and the bulk plane requirements . Staff, Mr.
Percefull , and the applicant spent a lot of time researching different alternatives.
Unfortunately, the variance request is the only alternative . Staff has nothing to dispute the
records showing the lots were combined. Mr. Smith stated title is in the Clerk and
Recorder 's office, not the Assessor's office .
Ms . O 'Brien stated that is not the issue. The applicant has the burden of proof, not the City .
If the applicant can prove the Tax Assessor -combined the lots on his own initiative then it is
not a self-created hardship. Ms . Reid stated in that case is the variance even needed. The
only reason the City is requiring that the parcel be subdivided is because it is listed as one
parcel on the tax records . Mr. Fruchtl stated that was correct. Ms. O 'Brien stated the crux
of the case is how the properties were combined, and there is not sufficient information.
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Ms. Shotwell stated the Board either needs to discuss the case or keep asking questions; at
the present time, the Board is doing both. She would like to discuss but doesn't feel it is
the appropriate time to hold Board discussion during the public hearing.
Mr. Smith agreed; closing the hearing for discussion is a good idea.
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 moved;
Mr. Bode seconded :
THAT CASE #2004-20, 3911 SOUTH SHERMAN STREET, BE GRANTED A
VARIANCE TO ENCROACH 1.3 FEET INTO THE REQUIRED 5 FOOT SIDE
SETBACK AND A VARIANCE TO PENETRATE THE BULK PLANE BY 1.25 FEET
BEYOND THE MAXIMUM 12 FEET ALLOWED WITH THE FOLLOWING
CONDITION:
1. WHEN THE PROPERTY IS SUBDIVIDED, ON THE FINAL PLAT, A 6.3 FOOT
"NO BUILD " EASEMENT SHALL BE DEDICATED ALONG THE SOUTHERN
PORTION OF LOT 47 .
THESE ARE VARIANCES TO TABLE 16-6-1.1 AND SECTION 16-6-1 :3 BULK PLANE
REQUIREMENTS OF THE ENGLEWOOD MUNICIPAL CODE.
Ms. Shotwell stated she doesn 't believe it is a self-imposed hardship. The house was built
many years ago; the land was platted and split into four lots. The variance would revert the
land back to its original status . It didn't violate any Zoning Ordinance until the UDC was
passed in February. Rather than giving the property an economic advantage, it restores the
status quo to the property which it had for 60 years. In light of the applicant's offer to grant
the easement along the side of the property, it meets the safety issue and facilitates access.
The applicant's intent is not to impair the adjacent property; the third criterion refers to
existing property owners whose property would be affected. In this case, since the
properties are owned by the same owner, she doesn't see it as an impairment but rather
the easement benefits both properties. Ms. Shotwell stated it seems unreasonable that the
land cannot be returned to its original property lines and leave the existing house as is.
Ms. O 'Brien stated she respectfully disagrees. Her position is that either the owner did
some affirmative act that combined the property which created the situation, or the Tax
Assessor combined the properties on his initiative as a way to ease his workload. If the
latter occurred, it is not a self-imposed hardship. For her it depends on how the
combination was initiated. Also , building codes change and there has to be a point of
change . The Board is required to look at the four criteria and the request must meet all
four. She only has a problem with the fourth criterion.
Discussion ensued.
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With no further discussion, the secretary polled the members' votes.
Mr . Smith stated he voted yes. There are unique, physical conditions to the property.
There are four lots and were combined due to no fault of the owner. The variance restores
the property to its original status. The variance is consistent with the intent of the zone
district. The zone district requires 50 feet of frontage to construct a house, and this will
result in two buildable parcels. It will not permanently impair the use or development of
the adjacent properties because the majority of the properties have 50 feet of frontage. It is
not a self-imposed hardship because the Tax Assessor wanted to send out one tax notice
rather than two.
Mr. Cohn stated he voted yes, concurring with Mr. Smith . He also stated he appreciated
the applicant's offer for the 6.3 feet "no build" easement.
Ms. Shotwell stated she voted yes for the reasons she stated earlier, and also concurred
with Mr. Smith .
Ms . O 'Brien stated she voted no. She stated she did not find the testimony credible in light
of the realtor's comments that he didn 't think the owner recalled why the properties were
combined. She doesn 't believe the fourth criterion was satisfied .
Mr . Bode, Ms. Carlston, and Chair Sprecace stated they voted yes, concurring with Mr.
Smith.
AYES:
NAYS:
ABSTAIN:
ABSENT:
Bode, Carlston, Cohn, Shotwell, Smith, Sprecace
O 'Brien
None
None
The Chair announced the motion approved by a 6-1 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 May 12, 2004 public
hearing.
Mr. Smith moved;
Mr . Cohn seconded: THE MINUTES OF MAY 12 , 2004 BE APPROVED .
AYES:
NAYS:
ABSTAIN:
ABSENT:
Bode, Cohn , O 'Brien , Shotwell, Smith , Sprecace
None
Carlston
None
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' • Motion carried. The Chair announced the motion approved by a 6-0 vote.
IV. APPROVAL OF FINDINGS OF FACT
Mr. Smith moved;
Ms. Shotwell seconded:
THE FINDINGS OF FACT IN CASE #2004-12 , 3035 SOUTH CHEROKEE STREET, BE
APPROVED AS WRITIEN.
AYES:
NAYS:
ABSTAIN:
ABSENT:
Bode, Cohn , O 'Brien , Shotwell, Smith, Sprecace
None
Carlston
None
The motion carried . The Chair announced the motion approved by a 6-0 vote .
V. STAFF ADVISOR'S CHOICE
Mr. Fruchtl introduced Barbara Fout, the Board 's alternate member. Mr . Fruchtl stated a
var iance case is scheduled for September 8. The request is for an encroachment into the
• front setback for a covered porch .
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VI. CITY A TIORNEY'S CHOICE
Ms . Reid stated she had nothing further .
VII. BOARD MEMBER'S CHOICE
The members had nothing further.
There was no further business brought before the Board. The regular meeting was declared
adjourned at 8 :45 p.m .
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