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HomeMy WebLinkAbout2004-12-08 BAA MINUTES• • • • MINUTES BOARD OF ADJUSTMENT AND APPEALS December 81 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: Carlston, Cohn, O 'Brien, Shotwell, Smith, Sprecace Members absent: Bode Staff present: Anthony Fruchtl, 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 begu n 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 speak; opponents will address the Board; and then staff will address the Board. II. CASE #2004-38 Doug Olmstead and Marilyn Heidrick 3715 South Bannock 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 6.5 feet into the required 25 foot front setback and 2 feet into the required 5 foot side setback. These are variances to Table 16-6-1 .1 of the Englewood Municipal Code. Doug Olmsted and Marilyn Heidrick, 3715 South Bannock were sworn in. Chair Sprecace stated the Certificate of Posting shows the November hearing date; he asked the applicant if they changed the date when the hearing was changed to December. Mr. Olmstead responded City staff called him on November 10 to inform him the meeting was changed to December 8; he changed the date on the sign within one or two days after that phone call. The sign is still up with the changed date. 1 • • • Mr. Olmstead testified that he attempted to explain the situation within the application . They started an addition on their house, and the decks were part of that pl an . The basic construction was originally started in 2001. In 2004, he came to the City to ask some general questions with regard to the construction of the deck and found out that the original permit was voided without their knowledge. They received a couple of extensions on their original permit in the mail, but were not notified that they wouldn't be given any more extensions. The original permit from which they were building was voided, and they were put in the position that they needed to apply for a new permit to finish the project. In the meantime, the side setback, which was originally 3 feet when they started the project, was changed to 5 feet in February 2004. With regard to the front setback, Mr. Olmstead testified that they were working on information they received a number of years ago when they started the project. They received wrong information that their property line was closer to the curb tha n it was. They thought they had five or six feet to work with without encroaching into the setb ack. It turns out that instead of the property line being at the sidewalk or the curb it was 2.5 feet up from the inside edge of the sidewalk. Around 2000 or 2001, when they started planning the project, they were using figures that were based on wrong information. They now have a deck that was started and currently doesn't fit the correct side and front setbacks . They have stopped building because they received a Stop Work Order, and started pursuing the variance process. Ms. Carlston asked if it was a deck or a carport. Mr. Olmstead responded that it was a deck. Ms. Carlston asked why it couldn't be constructed the 13 feet as in d icated in the staff report. Mr. Olmstead stated it is a deck but it extends over the driveway; the problem is the driveway is serpentine. There is a large maple tree to the right; the driveway has an "S" curve. The south post is at the edge of the driveway; the driveway comes to the garage. In order for the deck to meet the 5 foot setback, the post would need to be moved south approximately 2 feet, perhaps more, into the middle of the driveway which would make the driveway unusable . Ms. Carlston stated she is more concerned with the front setback rather than the side setback. Mr. Olmstead stated it would be a big "p ain" to make the deck shorter; it could be done but there are a couple of issues. If they m ade it shorter, they would need to reset the posts which means they would need to repour t he concrete; they would have to move the posts and move the main beam that hol d s everything together which would be expensive and time consuming. If they are forced t o do that, it is obviously an option. It also brings up another issue about misinformation that was received from City departments. Mr. Olmstead was told by City staff to measure from t he posts not the cantilevers of the deck, to the edge of the street. After the fact, he was told that he should have measured from the edge of the cantilever to the property line . Mr. Olmstead stated that if he is forced to shorten the deck it is something he can do but he would prefer not to do it. The side setback is the larger issue with regard to making the driveway unusable and the garage inaccessible. Regarding the front setback, they thought they had 4 to 5 feet to spare based on the original figures they were trying to operate on . Mr. Olmstead continued; looking at the other houses on the street there are a lot of houses and porches that are closer to the street than their deck would be if it were completed . 2 • • • There is a lot of variation of front setbacks from property to property on the street. He also submitted approximately 21 neighbor statements, and not one neighbor objected to the variance request. Ms. Carlston asked why they didn't complete the project when they obta ined the first permit. Mr. Olmstead responded that they didn't take out a loan ; they built it as they had the money and when they ran out of money they put the project on pause. If he had not come into the City to ask a few questions, they would have completed the project thinking they had a functional permit. The permit was voided without their knowledge. They are trying to do the right thing; if they hadn't run low on money, they would have been able to finish it on the original permit. They easily could have found out after the fact that they had violated an encroachment. Part of the issue is that the side setback changed, and the other is they received wrong information about where their front property line was located . They were acting on information they were given by City staff that no longer works for the City. The project is approximately half completed. Ms. Carlston stated she had d riven by the property. Ms. Shotwell stated it appeared that on January 3, 2002 a letter was sent to the applicant informing him that no inspection activity had been conducted; she asked the applicant if that was correct. Mr. Olmstead stated he doesn't remember. Ms. Shotwell stated he has copies of the documents the City sent him. Mr. Olmstead stated he has a copy of the Board's packet. Ms. Shotwell stated he requested an extension and then had a framing inspection done. The framing inspection was recalled after that in 2002; he then was given a 180 day notification. Ms. Shotwell stated it appears to her that while the applicant is blaming everything on the City, the permit was voided on April 2 7, 2004. She asked the applicant why he didn't take action before that time. Mr. Olmstead stated they were not aware that the permit was voided. Ms. Shotwell stated it was going on since 2001. Mr. Olmstead stated he understood, but he doesn't understand how the City works. He is not a contractor; he is not a builder; he is a homeowner who is building on his house. Ms. Shotwell asked when he applied for the permit in 2001 if they gave him documentation and instructed him on how to proceed. Mr. Olmstead he believed they did, bu t he may not have understood all the information. His understanding was that if he needed an extension the City would notify him. Ms. Shotwell asked if he changed his plan did the City request that he notify them as well. Mr. Olmstead stated he did not change his plan; his plans were not as complete as perhaps they should have been. To the best of their ability, they were acting by the rules of the games. Ms. Shotwell stated the City gave them th e rules of the game. Mr. Olmstead stated the rules of the game where the City would extend the permit 180 days and the City changed their policy. Ms. Shotwell stated the rules of t he game state that if there is no action taken it will be voided after a certain amount of time; s he asked the applicant if that was correct. Mr. Olmstead stated he did not understand that. Ms . Shotwell stated she believes he has a legitimate request for what he is aski n g, but he is blaming it on the City when in fact he received the correct information. Mr. Olmstead stated there is some blame the City should take responsibility for; they changed their policy from sending notices that permits needed to be extended. The side setback was changed in the middle of the project. 3 • • • Ms. Shotwell asked if it would be difficult for him to move the post. Mr. Olmstead stated it would be difficult and expensive. Ms. Shotwell asked when the post was pl aced and the concrete poured. Mr. Olmstead stated the posts were placed early 2004, but they were unaware they weren't following the current regulations. Ms. Shotwell asked if they called anyone at the City. Mr. Olmstead responded no;' he didn't think he needed to because he believed he still had a valid permit. Ms. O'Brien stated the applicant keeps saying he is trying to do the right thing, but what appears to have happened is that he received a Stop Work Order and he had to stop. She asked the applicant if that was correct. Mr. Olmstead stated he didn't' und e rstand. Ms. O'Brien reiterated that he said he was trying to do the right thing, but what happened is he had to stop construction because a Stop Work Order was issued from the City. Mr. Olmstead stated that was correct. Mr. Olmstead reiterated that he thought they still had a permit. Ms. O'Brien asked Mr. Olmstead what responsibility he took for the errors that occurred. Mr. Olmstead stated he thought he already explained that. Ms. O'Brien stated she heard about the City's responsibility, but she didn 't ' hear anything about his responsibility. Mr. Olmstead stated he didn't understand the rules completely. Again , he doesn 't do this type of work for a living; he is a homeowner working on his home. If he had taken out a loan, they would have completed the project on the original permit. It would have been built as it been started. Mr. Olmstead stated he obviously did something wrong because mistakes were made; he built the deck incorrectly in length. As far as width is concerned the side setback was changed without his knowledge. He stated he is pleading, in part, ignorance. The Board is not getting it; the Board is coming across that he did something wrong intentionally; that is not correct. They had structural engineers assist in the design to ensure everything was done correctly. If he made mistakes based on ignorance, then that is one thing. Ms. O'Brien thanked the applicant for telling her that she "wasn't getting it." Mr. Olmstead stated that is how the Board is coming across, and they are putting him in a very defensive position. Ms. Heidrick stated they were operating on the fact that they thought the City would send out notification; they thought they had a current permit. It is not a matter of whether the City is to blame or whether they were operating under wrong information. They did not intentionally start out to do something incorrectly; it happened; it was a mistake. If they cannot build it as is, it will be very expensive to fix. They are not trying to pl ace blame on anyone. They are obviously in the wrong, but it was not something they intentionally set out to do wrong. They have tried to construct the deck by the law as they knew it. Mr. Olmstead stated that if they had the intention of doing something intentionally wrong, they would have built it without getting the original permit or completed it believing they had the original permit while it was voided . Ms. Shotwell interjected; that is in fact what they did. The applicant was provided the correct information by the City . With all due respect, you were provided with the correct information in order to mak e the correct decisions . At that point, it becomes your responsibility what decision you will make. In an effort to be sympathetic, the facts you have provided do not meet the criterion for a self- imposed hardship. It appears to her that perhaps the situation is a self-imposed hardship. She asked the applicants to shed some light on how the situation is not a self-imposed 4 • • • . hardship when in 2004 they set posts and poured concrete. Ms. Heidrick stated they were operating under the assumption they had a valid permit. Mr. Smith asked if everything currently built is in conformance with the original permit. Mr. Olmstead responded that he didn't understand. Ms . Heidrick stated the side setback is in conformance with the original regulations. Mr. Smith asked if the original permit showed the post where it is currently located. Mr. Olmstead stated the original design showed a conceptual design of a deck off both ends of the addition; they were not detailed . That is a failing on his part. If you look at the structure, the width of the deck is equal to the house. They tried to follow the basic design of the house. Mr. Smith stated he drove by the house and saw the deck. He is trying to determine how much conforms to the original permit. He understands the City used to send out notices to inform citizens of when permits expire and then they stopped that practice. Ms. O 'Brien clarified that the front portion did not conform to the original permit. Ms . Heidrick stated the front does not conform because it is beyond the front setback, but the side setback would have conformed if the side setback had not changed in February. Ms. O 'Brien further clarified that the front would have never conformed. Ms. Heidrick stated that is correct as far as she knows. According to what they were told after the fact, they have the "hell strip." There is 3 feet of land, a large sidewalk, and then the front of the property line. Originally they were told the measuring for the property line was from the street. From that information, they believed they would have had abundant room to work with . The next thing they thought was their property line was at least at the sidewalk; as it turns out the property line is approximately 2.5 feet back from where the sidewalk begins. Down the street is Tom Skerritt's house, which sits directly on the sidewalk, and at the end of the block on Bannock ... Ms. Shotwell stated she objected; it doesn't really matter. Mr. Smith stated the applicant is presenting their case. Ms. O 'Brien stated it is important for the applicants to finish presenting their case. Ms. Shotwell asked Ms. Reid if it mattered to the Board. Ms. Heidrick stated it matters in that their property isn't sticking out. Ms. Reid stated a Board member has asked her a question; in response to Ms. Shotwell's question, Ms. Reid stated the applicant is responding to Ms. O 'Brien's question. Ms. Shotwell stated the applicant is bringing in the entire street and details of their configurations . Ms. Reid stated it is up to the Board whether they want to listen to those details . Ms. Shotwell stated she did not want to hear it. Chair Sprecace stated it goes to the variance criterion of the use and development of adjacent properties and the neighborhood in general. Ms. Reid stated the Board can take a voice vote as to whether or not this line of testimony is relative . Ms. Shotwell interjected that she didn 't care whether or not Tom Skerritt lives on the corner; it doesn't matter to her. Ms. Reid asked the Chair if he wished to take a voice vote to determine if the Board wished to continue on this line of testimony. Mr. Smith stated the Ordinance has portions which depend on the setbacks and how the remainder of the houses on the block are set. Ms. Shotwell stated she wanted the testimony limited to that. Mr. Smith stated that is what the applicant was testifying to; the Skerritt house sits right on the sidewalk. Chair Sprecace directed the applicant to continue and answer the question set forth by Ms. O'Brien . 5 • Ms. Heidrick continued; her point is they are not sticking out beyond other houses on the street. They are behind their neighbor to the south of them whose house is right up next to theirs; it is not an eyesore. They did not do it on purpose; it would be a financial hardship to move the posts. It will not detract from the neighborhood. • • Mr. Cohn noted the Board 's packet contains the original permit from June 2001 which was approved by the Building Department. It appears that the Building Department approved the plan in June 2001 even with the 20 foot length on the deck. Unless the applicants have gone further than that distance, it appears it was approved in 2001 to build the deck at that length . Mr. Olmstead stated that is what he has been trying to say. They were attempting to do what they were allowed within their first permit. If errors were made with regard to details, he is not a builder; he is a homeowner. He has put as much money into his house as he spent buying the house . He is trying to improve his home. Mr. Cohn asked if on the permit card that is placed in the home whether or not it indicates that it expires. Mr. Olmstead stated he didn 't believe it does. He also stated he has neighbors that have permits ... Ms. Shotwell again interjected that she needed advice from counsel; does the building permit have an expiration date on it? Mr. Smith stated that is what the applicant is trying to answer. Ms. Reid stated when someone is given a building permit there is an expiration date. Every person who deals with the City is presumed to know the law; ignorance of the law is no excuse. She stated she has not seen a building permit to know whether or not the expiration date is actually on the permit. Mr. Cohn stated the reason he asked the question is because the project has taken three years. It would have been handy to have the expiration on the permit, if it isn 't already on the card. Perhaps it is a recommendation for staff to had a sticker to the permit that notifies the person of the expiration date. Ms. Reid stated that is part of the application process. Ms. O 'Brien suggested Mr. Cohn ask staff the question about the permit. Mr. Cohn stated he wanted to know if the applicants knew if the date was on the permit. Mr. Smith stated the applicants were attempting to answer and were interrupted. Mr. Olmstead continued; on the voided permit, his neighbor has permits that were also taken out a number of years ago. One was voided and one wasn't. He has talked to the Building Department about this issue , and they indicated that they are so far behind on a lot of things that some of the older permits were voided and some were not. Again, they just didn 't know; they thought they had an active permit. Chair Sprecace stated the remainder of the hearing will be confined to the four criteria. Chair Sprecace asked if there were any other questions from the Board for the applicants regarding the four criteria. Ms . Shotwell asked the applicants if the y had any alternatives in case the variance was not granted. Mr. Olmstead stated he has the alternative to appeal the Board 's decision to court. The other alternative is the Board grants the variance and they finish the deck. 6 • • • Another alternative is the Board doesn 't grant the variance, and they redesign and cut back the deck. Those are his three options; he doesn't have any other options. He can't leave it standing unfinished. Ms. Shotwell stated that generally when the Board talks to people about their proposal they have ait'ernatives to amend their plans . She asked the applicants if they had done that. Mr. Olmstead stated he had not; things are in limbo based on the Board 's decision . Anthony Fruchtl, Planner was sworn in. Mr. Fruchtl stated for the record that Mr. Cohn contacted him on November 8 with questions regarding the site plan contained in the Board 's packet. Mr. Cohn inquired whether at the time of the original building permit in 2001, the side setback of the deck met the requirements. Mr. Fruchtl informed Mr. Cohn that it did at that time; it was a 3 foot setback in 2001. That setback was changed in February 2004 to a 5 foot setback with the adoption of the Unified Development Code. Mr. Fruchtl continued; to clarify Mr. Cohn's point with regards to the site plan, it is stamped at the bottom right-hand corner June 4, 2001. The original site plan did not indicate a deck would be extending towards the front property line. The site plan dated September 3, 2004 indicates an approval by Tricia Langon by the initials "TL " which specifically notes the deck may not extend more than 13.5 feet beyond the front of the house to meet the minimum 25 foot setback requirement. That was noted after the applicant came in and learned their permit had been voided. He was required to apply for a new permit which was set on top of the old one which was when staff noted the applicant could not extend more than the 13.5 feet. After that time, it was noted by the Building Division to the Community Development Department that the deck was built and seemed to encroach into the front setback. Mr. Fruchtl stated he then proceeded to issue a Stop Work Order. Mr. Smith asked Mr. Fruchtl if he knew who declared the permit null and void and why. Mr. Fruchtl stated he did because the deck encroached into the front setback farther than what was allowed on the site plan approved by Tricia Langon on September 3, 2004. Mr. Smith clarified he was referring to the original permit in 2001. Mr. Fruchtl stated that would have been the Building Division. Mr. Smith asked on what basis. Mr. Fruchtl stated on the basis that it had expired as outlined within the staff report. Mr. Smith asked if there was a Code provision for voiding permits. Mr. Fruchtl stated he believed there was according to the Building Division. Mr. Smith asked if there was a provision within the Ordinance. Mr. Fruchtl stated he doesn't have authority to speak on behalf of the Building Division, but according to what Lance Smith , the Chief Building Official, has presented and is clearly outlined within the staff report those are the provisions the City has adopted for voiding permits. Mr. Smith stated that is his question; has the City adopted them or the Building Department. Who determines they are void after 180 days? Ms. Shotwell interjected; it appears that if the City voided the permit this case should never have come to the Board. It should have been an administrative appeal; it should be a different procedure. Mr. Smith stated it would come to the Board one way or another. Ms. Shotwell stated it may come one way or another, but perhaps it is not the correct avenue in how it would come to the Board. If the applicant had proceeded through the correct legal avenues, then it wouldn 't have come to the Board. Mr. Smith stated if the secretary voided 7 • • • the permit, then it is important for him to know. If the Ordinance determines the permit is void, that is one issue . If it is done because some person determines it is void, it is an entirely different issue. Ms. Shotwell stated there has to be some procedure in which it reaches the Board, otherwise the Board can't decide these cases. The applicant must go through the administrative procedures that are established for an appeal, which he didn 't do for three years, and it is know his problem. Ms. O 'Brien stated she is trying to understand the issue. She asked Ms. Shotwell if she felt that the issue should be an appeal to the Chief Building Official's decision to void the permit. Ms. Shotwell stated that in his testimony the applicant never stated he questioned the voiding of his original permit. He did not go through formal channels in order to question the voiding of the permit. Mr. Smith stated he did; they told him to apply for a variance or appeal their decision. Ms. O'Brien stated the applicant has a method to come to the Board, either as a variance or as an appeal of the Chief Building Official's decision. Ms. Shotwell asked Ms. Reid if that was correct. Ms. Reid stated if the applicant is appealing the voiding of the building permit based on the 180 day notification and the confusion surrounding the lack of notification, it would be a direct appeal of a decision of the Chief Building Official or by one of the zoning staff. The applicant is before the Board in a different capacity asking for a variance. He is not asking about the denial of the permit; the current permit was denied based on the fact that Community Development found that it did not fit the setbacks. He is asking for a variance of the setbacks, not the issue of the permit. Ms. O'Brien clarified; if the Board denied the variance, the applicant could still come back on the issue of whether it was appropriate for the building permit to be voided which is a separate and distinct issue. Ms. Reid stated that was correct. Ms. O'Brien further clarified that the testimony regarding the permit expiring and not being notified, etc. doesn't pertain to the variance request. Ms . Reid responded that is the Board's determination. Ms. Shotwell stated the statue of limitations has expired on their ability to appeal the voiding of the building permit; there is a 30-day limit. Mr. Smith asked if someone in the Building Department advised the applicants to seek a variance. Mr. Fruchtl stated he doesn't work in the Building Department so he can't confirm or deny that. Mr. Olmstead contacted him after he issued the Stop Work Order, and he asked him what his next step would be. Mr. Fruchtl advised him that due to the violation of the deck into the front setback, his next step would be to seek a variance . The building permit that was issued specific to the site plan approved by Community Development notes that the deck cannot extend more than 13.5 beyond the front of the house. The applicant violated that site plan. Mr. Smith stated those were comments staff made in 2004; there is no indication he was informed of that in 2001 when the original permit was pulled. Mr. Fruchtl responded that the 2001 permit is not approved for a deck that would extend into the front setback; it is for a deck that follows linear along with the house. It does not show a projection into the front setback . Mr. Smith stated the Board does not have that. Chair Sprecace asked if the Board has the original plan. Mr. Fruchtl stated the original plan is not located within the packet. Mr. Smith asked if every permit that was issued in 2001 had either been completed or revoked. Mr. Fruchtl stated he can't confirm or deny since he doesn't work in the Building 8 • • • Division. Mr. Smith asked the same question regarding permits issued in 2002. Mr. Fruchtl again responded that he doesn't work in the Building Division and can't answer the question. Mr. Smith asked if there were any permits in the City older than 180 days that have not been cancelled. Mr. Fruchtl reiterated that he does not work within the Building Division, and that Community Development does not issue permits. Ms. Carlston stated she believes a contractor's license is needed to do this type of addition to a house; therefore, wouldn 't the applicant be educated on the proper procedures. Mr. Fruchtl stated Community Development does not regulate the requirements of the Building Division with regards to construction. Mr. Smith stated he didn't believe a contractor's license was needed. Ms. Carlston stated there are a lot of people who pull permits in the City and she knows there must be something in writing as far as an Ordinance that went through City Council that shows the allocated time. There are a lot of people who comply with those standards. The applicants applied for and received a building permit for an addition in 2001 and this is a deck in 2004. This is a variance for a deck that encroaches into the front and side setbacks. She suggested the Board address the deck issue and move forward. Ms . O'Brien clarified with staff; the 2001 plan is correct in relation to the side setback but not the front. Mr. Fruchtl stated that was correct. The Chair recognized Mr. Olmstead. Mr. Olmstead stated when they learned the 2001 permit was voided in 2004, they sat down with the Building Department to discuss the issue and asked if there was a way to reopen the original permit or to extend it. They were never told they could challenge the permit being voided or that it could be appealed. They were told their only option was to apply for a new permit, which is what they did. Step by step they thought they were doing the best they could do. Th e other question he wanted to address was whether or not there were permits in the City older than 180 days that have not been voided. Mr. Olmstead stated that his neighbor has an old permit that has not been voided. There are people in the City, which the Building Department are aware of, that have old permits that have never been voided. Joseph Units, 3 707 South Bannock, was sworn in. Mr. Units testified he went with Mr. Olmstead to the City when he renewed his permit. He has also been doing work on his home since 2001 with a homeowner's permit. He stated a person can do work on their home with a homeowner's permit as long as they meet Code and do the work themselves. His permit, as the applicants, has expired a few times and the City did notify him by letter that his time was soon to be up. He would then go in and renew the permit. The last time the perm it expired, he didn 't' get a letter and didn 't realize he was over the time. He understands it is his responsibility, but he got into the habit of the City sending notices that the permit was about to expire. The policy then changed; the City was nice about it and informed him that there were cut backs and because of that they weren't sending out renewal notices any longer. One of his permits had expired but the City had not voided it. The City informed him that they had permits all over town like that just because there were so many. His other permit had been voided . 9 • • • Ms. O'Brien asked if he knew who did the work on the applicant's project. Mr. Units responded that Mr. Olmstead does his own work. Ms. O'Brien asked the applicants who did the work of putting in the posts and pouring the concrete. Mr. Olmstead stated he did, Ms. Heidrick, some family members, some neighbors; basically it is his responsibility since it is his project. There was a painter up the street who did some work on the addition. It i's not just him personally. Ms. O'Brien confirmed that it is family members who live outside of the address. Mr. Olmstead responded some of them. Mr. Cohn stated there was a provision within the UDC that the UDC was not intended to interfere with existing permits so there would be an easy transition between the old Code to the newer Code. He asked staff if the UDC would be harmed as a document if the Board grants the variance. Mr. Fruchtl stated that he cannot give his personal opinion on whether or not the legal document adopted by the City would or would not be harmed by the granting of this variance. Ms. Reid stated that is a determination that must be made by the Board. 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. Cohn seconded : THAT CASE #2004-38, 3715 SOUTH BANNOCK STREET, BE GRANTED A VARIANCE TO ENCROACH 6.5 FEET INTO THE REQUIRED 25 FOOT FRONT SETBACK TO CONSTRUCT A DECK . THIS IS A VARIANCE TO TABLE 16-6-1.1 OF THE ENGLEWOOD MUNICIPAL CODE. FURTHER THAT A VARIANCE BE GRANTED TO ENCROACH 2 FEET INTO THE REQUIRED 5 FOOT SIDE YARD SETBACK TO CONSTRUCT A DECK . THIS IS A VARIANCE TO TABLE 16-6-1.1 OF THE ENGLEWOOD MUNICIPAL CODE. Mr. Cohn stated when he saw the original permit with the 2001 stamp it appeared the applicant was approved for the deck. One of the main difficulties has been the adoption of the UDC. Ms. Shotwell stated with respect to the criterion, she doesn't find any unique physical conditions to the property. The applicants have not presented any testimony that there are any unique conditions on the property except those they created themselves. With regards to the variance being consistent with the intent of the zoning district regulations, she doesn 't believe that. The Unified Development Code became effective in 2004. They had an opportunity in 2001 to complete the changes if that is what they really wanted to do. They essentially neglected to perform what they said they were going to do. In 2004 they decided they were going to get busy, plant the posts, and come to the City and say it was a hardship. That doesn't work; she believes it is bad faith . Generally, people have conditions that really create a hardship, but it seems to her that they created their own hardship. This 10 • • • was something that you could have done a long time ago and you just failed to do it, and then you got really busy when you found out that you didn 't adhere to the original plans. Ms . Shotwell stated she is confident that it is not within the intent of the zoning regulations. With regards to the variance not permanently impair the use or development of adjacent or conforming properties, Ms. Shotwell stated that any variance the Board grants to you will live with the property. While you ma y consider this your personal problem, it is a problem that lives on with the property. If you build a porch out 15 feet beyond the front setback, someone else can then come in a build a condo. With regard to the criterion that the variance is not a self-imposed hardship, Ms . Shotwell stated that is the one that really slams you; this is really completely on you. Mr. Smith objected to the Chair of the lecturing of the applicants. Ms. Carlston stated the second criterion needs to be consistent with the inte nt of the zone district which is to secure public health, safety and welfare; that is part of the permit process to obtain inspections to verify construction meets safety regulations. Part of the permit process is a certain timeline which is fairly clear in the field of construction. She has faith the Building Department explained the timeline and put it on the permit. Regarding the fourth criterion, she stated she believes it is a self-imposed hardship. She referenced a memo from Ms. Reid to the Board dated October 13 , 2004 wherein she addressed self- inflicted hardships. Problems which are personal to the applicant as well as financial hardships are considered self-inflicted hardships . Ms. O'Brien stated this is a case which has incredibly hard facts. Things were changed in the process. A new Code was imposed and what seems to be clear is the original permit in 2001 showed a side boundary but did not express how far the y were going to build in the front. If in fact there is a grandfather clause regarding the new Code not affecting existing permits, then that brings up something that is difficult. She finds the variance vs. the appeal troubling. The applicants were apparently told that the variance was the next step and did not know about the appeal of the Building Official. Then there is an issue of whether it is the City's responsibility to tell the applicants how to question its decision or is it the applicants' responsibility to conduct the research. The homeowner's permit was an interesting issue. During testimony she learned that a homeowner must meet the Code; the front portion never met the Code. Secondly, you must do the work yourself, and the work was not done completely by the applicant or the people who lived at the residence. She stated she is bringing up all the different variables that affect how she looks at the case . Ms. O'Brien continued; there is a large maple tree with respect the side of the property and is a unique condition of the property. The side is the same as it was in 2001 . She stated she would have no problem voting for a side variance, but not the front because it never met Code. Mr. Smith stated he would vote yes , because the first criterion is that there be some unique topography and he believes there is. There is a hill in the front of the property that leads to a garage. It has just as unique topography as any other porch variance that the Board has granted in the last two years. The second criterion is that it be consistent with the intent of the zone district regulations . He stated he believes the variance would be because it would allow the applicants an amenity that others in the neighborhood have which are a porch or 11 • • • a deck that covers their driveway which could be icy in the winter. The third criterion is that it won 't permanently impair the use or development of the adjacent properties. The other properties are already developed . It is not a self-imposed hardship; it is no more self- imposed than any other porch variance granted by the Board. Mr. Smith stated he had the 2003 Board case history; in 2003 the Board granted ... Ms. Shotwell objected that the Board 's case history is irrelevant and not appropriate. Chair Sprecace noted Ms. Shotwell's objection for the record . Mr. Smith continued; out of 11 requests , the Board granted 10 for porches to encroach into the front yard setback. Mr. Smith stated he believed if the applicants had come to the Board without having seen anyone at the City and asked if they could build the deck, chances are really good they would have received a variance. Instead based on a 2001 permit which someone in the Building Department decided to void, the applicants continued to build under that permit, got caught ... Ms. Shotwell stated she wanted a point of order from the City Attorney. Ms. Shotwell asked if it was permissible to bring in evidence of other decisions made by the Board. Ms. Reid stated the Board can discuss what they want under deliberations . Ms. Shotwell asked if that shouldn't be discussed after the case is closed . Ms. Reid stated the public hearing is closed; there is no more testimony; the Board is in deliberation of the case. Mr. Smith can discuss what is common knowledge about what has been happening in this forum and what the Board has done in the past. It is still part of discussion. The Board does not have to consider it as testimony; it is part of Mr. Smith 's discussion . Mr. Smith stated what the Board has done in the past is not binding and is not suggesting that it should be. On the other hand it should be considered . His point is that if the applicants had come in cold they probably would have received their variance, but because of the various factors that have happened in the interim and relying on a 2001 permit, it appears the Board is going to send them home without the variance . Chair Sprecace stated he agrees with Ms. O 'Brien; he has no issues with the 3 foot side setback, but as far as the front setback he doesn't believe it fits criteria one or four. He understands that it will be more of an economic hardship for the applicants, but it is their responsibility to know the law. The Board can grant variances based on the criteria; in this case he doesn't believe it fits either criteria one or four . Ms. O 'Brien asked Mr. Smith if he would entertain a friendly amendment to change the motion to only approve the side setback request. Ms. Reid stated a proper motion would be to bifurcate the motion; it is a variance of the side setback and variance of the front setback. Mr. Smith stated he had not objection to divide the motion . Ms. O 'Brien moved; Mr. Smith seconded: Ms . Shotwell objected. To divide the motion and vote on the variance requests separately . 12 • Chair Sprecace called for the vote. • • AYES: NAYS: ABSTAIN: ABSENT: Carlston, Cohn, O'Brien, Smith , Sprecace Shotwell None Bode Motion passed 5-1. Ms. Shotwell stated she wanted new argument. Ms. O'Brien stated the public hearing was closed. Chair Sprecace stated he would like to consider the side setback request first. Ms . Carlston clarified that the applicants stated that if the front was shortened that they still had to relocate the post. Ms. Shotwell stated she still believed the Board needed to reopen the public hearing to determine the distance from the house that is adjacent to the property and to receive input from the neighbor. She reiterated there needed to be a new hearing. Chair Sprecace stated the applicants obtained approximately 20 neighbor statements. Ms. Shotwell stated it is too close. Ms. O 'Brien stated from the map it appears the neighbors from the north and south have approved the request. Mr. Smith stated if they have to tear out the post, they may as well come back. Chair Sprecace stated that at least the Board can approve something that the applicants can work with. It would be easier for the applicants to move the post that is 3 feet away from the border 6.5 feet so that it is in compliance than it would be to put the side post 5 feet in from the border. Chair Sprecace called for the vote The secretary polled the members' votes on the request to encroach 2 feet into the required 5 foot side setback. Mr. Smith stated he voted yes for the reasons he stated previously. Mr. Cohn, Ms. Carlston, Ms . O'Brien stated they voted yes concurring with Mr. Smith. Ms . Shotwell voted no. She stated the applicants constructed the deck after the UDC was in effected. They had plenty of time prior to the time the UDC was passed. The applicants did not operate in good faith within the structure of the law . Chair Sprecace voted yes stating it met all four criteria. AYES: NAYS: ABSTAIN: ABSENT: Carlston, Cohn, O'Brien, Smith , Sprecace Shotwell None Bode The recording secretary announced the motion approved by a 5-1 vote. The secretary polled the members' votes on the request to encroach 6.5 feet into the required 25 foot front setback. 13 • Mr. Smith stated he voted yes for the reasons he stated previously. • • Mr. Cohn stated he voted yes. Ms. Shotwell stated she voted no. There are no physical impairments to the property. The applicants applied for the variance in bad faith . They sat on their laurels and failed to take action when they should have taken action. Ms. Carlston stated she voted no. The applicants can adequately construct a deck that extends 13.5 feet from the front of the house toward the front property line . Ms. O 'Brien stated she voted no . She stated she does not believe the first criterion is met in that unique physical conditions such as size, shape, location, topography or surroundings which are particular to the land do not exist. She also doesn 't believe the fourth criterion is met which requires the variance not be a self-imposed difficulty or hardship. Chair Sprecace stated he voted no concurring with Ms. O 'Brien. AYES: NAYS: ABSTAIN: ABSENT: Cohn, Smith Carlston, O 'Brien , Shotwell, Sprecace None Bode The recording secretary announced the motion denied by a 2-4 vote. The Chair instructed the applicant to contact the Planning staff for any additional or necessary information . Ill. APPROVAL OF TELEPHONE POLL Chair Sprecace asked for consideration of the telephone poll conducted on November 10, 2004. Mr. Smith moved; Mr. Cohn seconded: TO RATIFY THE TELEPHONE POLL CONDUCTED ON NOVEMBER 10, 2 004. AYES: NAYS: ABSTAIN: ABSENT: Carlston, Cohn, O 'Brien, Shotwell, Smith, Sprecace None None Bode Motion carried. The Chair announced the motion approved by a 6-0 vote . 14 'l I I ..... • • • IV. STAFF ADVISOR'S CHOICE Mr. Fruchtl wished the Board Happy Holidays. Mr. Fruchtl informed the Board that there were no cases for January and asked if the Board wished to meet. Discussion ensued . It was the consensus of the Board not to meet in January. Mr. Smith asked the City Attorney to research who specifically in the City voids building permits. Mr. Fruchtl stated he would bring a building permit to the next Board meeting so the Board can review the language contained on it. Mr. Fruchtl reminded the Board of the ICBO conference and asked anyone interested in attending to fax their information to the recording secretary by the end of the week. Ms. Carlston noted that she already submitted her paperwork to Ms. Fenton. V. CITY ATTORNEY'S CHOICE Ms. Reid stated she had nothing further. VI. BOARD MEMBER'S CHOICE Ms. O'Brien suggested holding a study session on meeting procedures for new members. The Board briefly discussed meeting procedures. There was no further business brought before the Board. The regular meeting was declared adjourned at 9: 15 p .m . 15