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HomeMy WebLinkAbout2005-02-09 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS February 9, 2005 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, Green, O 'Brien , Shotwell, Smith , Sprecace Members absent: None Staff present: Anthony Fruchtl, Planner Nancy Re id , Assistant City Attorney Chair Sprecace stated there were seven members present; therefore, fi v e affirmative votes are required to grant a variance or appeal. Chair Sprecace stated he would like to change the order of the agenda. He wou ld like to condu ct the public hearing and th e n conduct elections . Mr. Smith moved; Mr. Cohn seconded: TO AMEND THE AGENDA TO CONDUCT THE PUBLIC HEARING BEFORE ELECTIONS . AYES: NAYS: Carlston, Cohn, Green, O 'Brien , Shotwell, Smith, Sprecace None ABSTAIN: None ABSENT: None Motion carried . Chair Sprecac e stated that the Board of Adjustment and Appeals is empowered to grant or den y variances by Part Ill , Section 60 of the Englewood City Charter. Variances granted by the Board are subject to a 30-day appea l 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 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 w ill be given an opportunity to speak; opponents will address the Board; and then staff will address the Board . 1 • • II . CASE #2005-01, #2005-06, #2005-07, #2005-08 John R. Stephens 4871 South Bannock Street, 4881 South Bannock Street 221 West Chenango Avenue, 231 West Chenango Avenue 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 exceed the maximum allowed 40 percent width of a garage door by 13 percent. This is a variance to Section 16- 6-10 :6c(2) of the Englewood Municipal Code. John Stephens, 480 Corona Street was sworn in. Mr. Stephens testified that he has a project at the corner of Chenango Avenue and Bannock Street. It consists of a single family home on the corner which is an old 1933 home which he renovated. In association with the project, he has subdivided the balance of the property to accommodate two single- family, attached home sites. He is requesting the variance because the width of the garage door exceeds the ma xim um by 13 percent. One of the main reasons he chose the particular design was the fact that the garage doors do not sit side-by-side ; they are separated by a courtyard. He feels this particular design complements the architecture of the old 19 33 home he renovated and feels it is a very nice addition to the neighborhood. He has recei ved a number of compliments from neighbors who have signed statements. He believes the street appeal of the project is very good and hopes the Board will see it that way . Ms. O 'Brien stated the Board has four criteria it must address in reaching its decision . The first criterion is that unique physical conditions exist, such as size, shape, location, topography, or surroundings, which are peculiar to the land or structure involved, which depri ve the applicant of privileges enjoyed by other properties in the vicinity. She asked the applicant how his properties fell wi thin that category. Mr. Stephens responded that it comes back to his request is very minor in nature. He feels that the designs are very compatible with the neighborhood and will complement the neighborhood. Ms. O'Brien asked the square footage of the single-family attached houses . Mr. Stephens responded that they are each approximately 1,500 square feet. Ms. Carlston asked the applicant when he purchased the property. Mr. Stephens responded that he purchased the property in December 2004. Ms. Shotwell asked why it was necessary to have such a large garage. Mr. Stephens stated that 16 feet is a standard garage door. Ms. Shotwell stated that might qualify for a unique physical condition of the property. In order to construct a standard garage, the applicant must exceed the width of the garage door. Mr. Stephens stated that was correct. He is not requesting a larger garage door; it is a standard door throughout all communities. Mr. Cohn stated the 16-foot door is for a standard, two-car garage, and a 14-foot door is for a one-car garage; that is his understanding. Mr. Stephens stated a 14-foot garage door • would only accommodate very small cars, and that is probably why the standard is 16 feet. 2 • • • Chair Sprecace stated he only sees a couple of options and that is to make the garage doors smaller, which doesn't seem to work or to make the houses larger. If that latter is done, the houses won't fit on the lot and won 't meet the setbacks. Looking at the site plan, it appears there is 75 feet of frontage. Mr. Stephens stated that is correct. Chair Sprecace stated he understands there are financial considerations, and no one wants to be unreasonable but the houses are not built. Mr. Stephens confirmed that was correct. Chair Sprecace stated it is a matter of whether or not the project can fit into the Code or whether the Board should grant a variance to accommodate the garage width. Chair Sprecace stated he had one concern which is this particular section was passed with the intent to minimize the amount of garage that people see from the street. Mr. Stephens stated he understands the City's issue regarding single-family attached homes where the garage doors are constructed side-by-side and the entries for each unit are on the outside . That particular style creates more separation for the people that own the homes and there is more of a sense that the units are not attached. However, when that design is built, it is an eyesore. The applicant continued; with his background in architecture, he felt that he wanted to construct a good, quality product on the site which complement the Dutch Tudor farmhouse that he renovated . Chair Sprecace agreed; he asked if the houses could be increased to 40 feet to meet the Code. Mr. Stephens stated that they couldn 't, because then the side setbacks would not be able to be met. Mr. Cohn stated that encroaching into the side setback would cause problems with the bulk plane as well. Mr. Smith stated 16-6-1 O:B (4 ) indicates that "at the applicant's request, the City Manager or designee may approve an alternative approach to compliance with all or part of this Section's ... " It further indicates that the City may accept alternative compliance if the configuration of the lot or other physical condition makes the application impractical or if the proposed alternative is consistent with the general propose of these standards and accomplishes the intent of the design standards equally well or better than an approach that full complies with the standards. He asked that given the City Manager can grant the request on those grounds whether the Board is still limited to the four variance criteria or if the Board has as much discretion as the City Manager. Secondly, he asked if the applicant applied to the City Manager or his designee, or was that suggested to the applicant as an alternative. Ms. Reid stated she believes there is a percentage for administrative adjustments and that the Board is still limited to the four criteria. Mr. Smith stated this is under a different section than administrative adjustments; this is a section for alternative compliance. Mr. Smith stated he understood administrative adjustments are limited to ten percent and are also limited to setbacks. This particular section addresses design standards and guidelines which are different than setback requirements. Ms. Reid, staff, and the Board reviewed the particular section in question . Mr. Smith stated his thoughts are that 16-6-10 addresses items that are standards and guidelines which are not the same as setbacks, height limitations, square footage requirements, etc. Perhaps standards and guidelines are meant to have more flexibility than some of the other portions of the Ordinance. Ms. Carlston stated than when Council was considering the UDC she recalls that design guidelines were just recommendations not 3 • • • requirements . Mr. Smith stated that would also be his thinking as to why the City Manager would have some discretion to vary the Code. Perhaps the applicant should apply to the City Manager and if his request is denied come back to the Board as an appeal. Ms . Reid asked Mr . Fruchtl how Community Development has interpreted that section of the Ordinance. Anthony Fruchtl , Planner was sworn in . Mr. Fruchtl stated that Mr. Simpson had seen the drawings during the minor subdivision application, but was not offered an opportunity to review the case as identified in Section 16-6-10 . Ms. O'Brien asked if the width of a garage was a design guideline. Ms . Reid responded that it is located under that section; Section 16-6-10 talks about design standards and states the general purposes "ar e intended to ass ur e qualit y n e w development in the City of Engl e wood that provides variety and visu al inter es t in e xt e rior building d es ign , is compatible with e xi stin g and de sirabl e built p att e rn s and mate ri als, provide s human scal e d e tailing at th e street le v e l, and c on tributes to p e d es trian-oriente d str eetscap es. 11 Ms . Reid stated the general purpose for th e residential desi gn stand a rds st a te s: ". . . are inte nded to e n s ur e th at in fill, re d e ve lo pm e nt, and re n ovation w ithin En glewood 's re sidential neighborho o d s ... by utilizin g comple m e ntary building d e sign , se tba c k s, an d m ass in g. 11 The guidelines are applicable to all zone districts and residential design st a ndards shall be applied durin g the normal process for residential zoning site plan re vie w which is administrati ve . Mr . St e phens state d that he could submit a brochure with photog raph s of the existing home he is basing this project on . Mr. Smith stated once the brochur e is submitted it would not be returned. Mr . Steph e ns stated that was not a problem and submitted the brochure. Ms . Carlston asked the applicant how the request was not self-imposed; the units can be constructed with one car garages. Mr . Stephens responded that would impose a considerable financial hardship because people do not want one car gara ges; the units would be very difficult to sell. Ms. O 'Brien asked if the house in the brochure had a one car or two car garage . Mr . Stephens responded that the house has a two car garage . Ms . Carlston stated she drove by the property and that it is currentl y for sale . Mr . Green asked if the 1,500 square feet was for each unit. Mr. Stephens stated th a t was correct. Ms. Reid asked Mr. Fruchtl if staff had a poli cy on the alternative compliance section . Mr . Fruchtl responded that this case is the first time this issue has been brought up. Mr. Smith asked if the City Manager has ever reviewed any alternative compliance applications. Mr . Fruchtl responded that the Cit y Manager's designee in these types of cases is Robert 4 • • • Simpson, Director of Community Development. Mr. Simpson reviewed the case during the minor subdivision application, but did not make a determination under the alternative compliance section, and it was never addressed by staff to Mr. Simpson. Mr. Smith asked if there was a process or application in place to apply for an alternative compliance under 16-6-1O:B(4)a. Mr. Fruchtl responded there was not. Mr. Smith confirmed that Mr. Simpson reviewed it, but not necessarily under that section or with those standards in mind. Mr. Fruchtl stated that was correct. Ms. Carlston asked if staff has granted any type of administrative variances for any type of percentage increases for garage. Mr. Fruchtl responded that this is the first case regarding garage width or any residential design standards that has been reviewed by staff. 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. Chair Sprecace stated the property has already been subdivided and the Board cannot change the fact that it has been subdivided. Addressing the self-imposed hardship criteria, that particular action happened before it came to the Board . Since the lot has been subdi v ided, there is no ph y sical way to construct a two-car garage with a standard 16-foot door on a 30-foot wide house . That is a little inconsistency within the Ordinance which makes it impossible for the applicant to compl y with this section and have a normal size house on the lot with a two-car garage, facing the street. Ms. O 'Brien stated a two-car garage could be constructed if it were on the side or it faced the alley . Mr. Cohn stated the subject property doesn 't have an alley; further he agrees with the applicant that people want houses with two-car garages. Ms. Carlston stated she drove down Cherokee Street and 90 percent of those houses have one-car garages. Ms. Reid stated that after reviewing the alternative compliance section, it states the City Manager or designee should look at the case , but instead of using the criteria that he normally uses under administrative adjustments, 16-2-1 7, he should use the criteria listed under 16-6-10:4(a). "Applicable Procedure: Th e City shall process a request for alternative compliance as an Administrative Adjustment according to the procedures stated in Section 16-2-1 7 . . . Howe ver, the criteria shall be 4 (a) above .. 11 Ms. Reid continued; that is the criteria that is to be used under the alternative compliance section. If the determination is that it does not comply, the case is referred to the Board of Adjustment as an appeal from the City Manager's decision. Mr. Smith stated that it is either before the Board because Mr. Simpson made a determination and said no, which he does not believe is the case , or he referred it to the Board instead of making a decision. Ms. O'Brien asked staff if Mr. Simpson was given the option of referring it to the Board without making a decision. Mr. Fruchtl noted that Mr. Simpson was not presented with that option. 5 • Ms. Reid reviewed the procedures under administrative adjustments. Mr. Smith stated that section also states the City Manager or designee may review the proposed administrative adjustment and may refer the application to any department or agency for its review and comments. Ms. Reid referred the Board to Section 16-2-1 7:F for the criteria of administrative adjustments . Mr. Smith stated those criteria are not used for the alternative compliance . Ms . Reid stated that is correct, but the alternative compliance section states that procedure follows the administrative adjustment procedure. Final decisions made under the review outlined in the administrative adjustment section are appealed to the Board of Adjustment. • • Ms. Reid stated it is her opinion that the current case should be an appeal to the Board of Adjustment from the Manager's decision, which she assumes was a "no." Mr. Fruchtl stated that Mr. Simpson did not review the case under the alternative compliance criteria. Ms. Reid asked what his determination was. Mr. Fruchtl reiterated that it was not reviewed under that criteria; when the case was reviewed by staff, it was determined the garage did not meet the criteria set forth in Section 16 -6-10 and the applicant needed a variance. Ms. Reid reiterated that section is design standards and guidelines, not a required setback. Mr. Fruchtl agreed. Ms. O'Brien confirmed that Mr. Simpson did not use his administrative authority to review the case under the alternative compliance section. Mr. Fruchtl stated that was correct as Mr. Simpson was not given that option. Ms . Reid stated the case is to the Board based on a design criteria, not a required setback, height, or density issue . Ms. O 'Brien stated she is confused; it appears that Mr. Simpson did not review the case under the appropriate procedure. If he had done that review, he could have done one of three things -approved, denied, or sent it to the Board with a recommendation. He did not do any of those things. Ms. Reid stated the procedure staff has used, which in her opinion is incorrect, is that the case is before the Board as a variance to a design standard. Ms. O'Brien asked if the Board is still held to the same four criteria. Ms. Reid stated it is not what the Board normally does, but if the Board considers the case as a variance it must do so under the four criteria. Ms. Reid stated it is her legal opinion that she is not certain this request for alternative compliance for the width of a garage raises to the level of needing a variance, but that is the Board's decision. Ms. O'Brien stated she would like to discuss what alternatives are available to the Board. Mr. Smith reviewed the criteria Mr. Simpson would have had to use to review the case under alternative compliance. Further, Mr. Smith stated that by addressing those criteria he doesn't believe that granting the request is inconsistent.; he personally believes that it complies with the criteria. His recommendation would be to grant the request as an alternative compliance or to send it back to Mr. Simpson to consider under the alternative compliance section. Chair Sprecace asked for clarification from Ms. Reid as to whether the Board's standards of review are the four variance criteria or the alternative compliance criteria. Ms. O'Brien also asked if there really is a definitive answer. Ms. Reid stated the applicant requested a 6 • • variance which technically should be an appeal to 16-6-10 from the decision of City staff. Staff did not make a decision under 16-6-1 O; therefore, the Board of Adjustment can do one of two things. The Board can determine the procedure is flawed, and for all practical purposes staff has denied the request. The Board is then considering the request under the alternative compliance criteria in 4(a), and can make a ruling as if the City Manager's designee denied the request. The alternative is since the request does not raise to the level of a variance because it is a design standard, the Board can make a determination that no variance is needed. A third alternative is the Board can send it back to staff and have them review the case consistent with the Ordinance. Mr. Smith asked for clarification; if the case were before the Board as an appeal to Mr. Simpson's denial, the Board would review the case under the criteria located in 4(a), not the criteria for administrative adjustments in 16-2-17. Ms. Reid stated that was correct. Ms. O'Brien stated if the Board is correct in its analysis, her reasoning would be to consider the case as a de facto denial on the part of Mr. Simpson. Staff should have made a decision; a decision was not made -that's a de facto denial; therefore, it's before the Board as an appeal; the Board should rule on the appeal based on the criteria in 4(a) only. Mr. Smith stated his only concern with that reasoning is if the Board denied the appeal, the Board would be denying the appeal without knowing the rationale of the City administration, and the applicant has no other recourse . Ms. Shotwell asked if the Board could find two different alternatives. Mr. Smith moved; Mr. Green seconded: THAT CASE #2005-01 , CASE #2005-06, CASE #2005-07, AND CASE #2005-08 BE REFERRED TO ROBERT SIMPSON, DIRECTOR OF COMMUNITY DEVELOPMENT, WITH A FAVORABLE RECOMMENDATION TO GRANT THE APPLICANT, JOHN R. STEPHENS, ALTERNATIVE COMPLIANCE UNDER 16-6-1 O:B4(a). Ms. O'Brien stated the only hesitation she has with that is she would like to see a definitive answer for the applicant because that is in his best interests. Mr. Smith stated perhaps Mr. Simpson knows something about garages which might make it inappropriate for the Board to grant the appeal. Mr. Cohn stated that by taking that approach, the Board is increasing the hardship on the applicant. If Mr. Simpson takes two or three weeks to review the case and then denies the case, the applicant has to wait until April to have the Board hear the case again. He agrees with Ms. O'Brien and would like to reach a decision. Ms. Shotwell agreed; she believes the Board can approve the case under the guidelines given and perhaps the Board should send Mr. Simpson a letter requesting clarification of the section and request he consider such • cases in the future. She believes it is unfair to the applicant to send it back to staff. 7 • • • Chair Sprecace called for a vote on the motion . AYES: NAYS: ABSTAIN: ABSENT: Green Carlston, Cohn, O'Brien, Shotwell, Sprecace, Smith None None Motion failed 1-6. Mr. Smith moved; Mr. Cohn seconded: THAT CASE #2005-01, CASE #2005-06, CASE #2005-07, AND CASE #2005-08 ARE PRESUMED TO BE DENIED BY ROBERT SIMPSON, DIRECTOR OF COMMUNITY DEVELOPMENT, AND FURTHER THAT THE BOARD GRANT THE APPLICANT, JOHN R. STEPHENS, AN APPEAL TO ALTERNATIVE COMPLIANCE, SECTION 16-6-1 O:B4 OF THE ENGLEWOOD MUNICIPAL CODE. Ms. Carlston clarified the Board would be using the criteria located in 4(a). Ms. Reid stated that was correct. Chair Sprecace further clarified that the Board would not be using the normal four criteria they use when considering variances. The secretary polled the members' votes . Mr. Cohn stated he voted yes. The project will blend into the neighborhood. Ms. Shotwell stated she voted yes. It is in compliance with Section 16-6-1 O:B4(a). There are also unique physical conditions and characteristics on the property. The applicant would be deprived of the opportunity to build a standard garage which is a privilege others in the neighborhood enjoy. Ms. Carlston stated she voted yes. The request is an alternative compliance based on the unusual circumstances of the property. Ms. O'Brien stated she voted yes. The applicant's request should have been properly treated as an alternative compliance under Section 16-6-1 O:B4, and it was not by the City Manager's designee, Mr. Simpson; therefore, it should be treated as a de facto denial. On an appeal of that denial, she voted to overturn the denial because under the criteria set forth in 16-6-1 O:B4(a), the alternative compliance applies where an alternative approach would provide a result that is equal to or superior to that provided by an approach fully complying with the standards in that section. Mr. Green stated he voted yes, concurring with Ms. O'Brien . Mr. Smith stated he voted yes, concurring with Ms. O'Brien. Additionally, whether or not Mr. Simpson's actions were a denial, the Ordinance allows the City Manager or designee to 8 • • • make such decisions . Since Mr. Simpson was the designee, did not make the decision and referred it to the Board, Mr. Smith considers the Board as the City Manager's designee and th e one to properly make the decision. Chair Sprecace stated he voted yes, concurring with Ms. O'Brien and Mr. Smith. AYES: NAYS: ABSTAIN: ABSENT: Carlston , Cohn, Green, O 'Brien, Shotwell, Smith, Sprecace None None None Motion passed 7-0. The Chair instructed the applicant to contact the Planning staff for an y additional or necessar y information. Ill. APPROVAL OF TELEPHONE POLL Ch air Spreca ce asked for consideration of the tel ephone poll conducted on Januar y 12, 200 5. Mr. Smith mov ed ; Mr. Cohn seconded : TO RATIFY THE TELEPHONE POLL COND U CTED ON JANUARY 12 , 2005 . AYES: NAYS: Carlston , Cohn, O 'Brien , Shotwell, Smith , Sprecace None ABSTAIN: Green ABSENT: None Motion carried . The Chair announced the motion approved by a 6-0 vote. IV. ELECTIONS Mr. Smith moved; TO ELECT DAVID SPRECACE AS CHAIR. Motion failed for lack of second . Ms . O 'Brien moved; Ms. Carlston seconded : TO ELECT JILL CARLSTON AS CHAIR . AYES: NAYS: ABSTAIN: ABSENT: Carlston , Cohn, Green, O'Brien, Shotwell, Smith , Sprecace None None None 9 • • • Motion carried . Ms. Carlston moved; Mr. Smith seconded: TO ELECT MARCIA O'BRIEN AS VICE CHAIR. AYES: NAYS: Carlston, Cohn, Green, O'Brien, Shotwell, Smith, Sprecace None ABSTAIN: None ABSENT: None Motion carried. V. STAFF ADVISOR'S CHOICE Mr. Fruchtl thanked Mr. Smith for pointing out the alternative compliance section; it will assist staff with future cases. Additionally, Mr. Fruchtl stated that Mr. Simpson never had the opportunity to review the case under that section nor was it given to him as an option to make a ruling; therefore, there is no need to send a letter to him. At the December meeting, there was a request for information regarding building permits. Mr. Fruchtl distributed a building permit. On the permit, it clearly indicates that building permits expire within 180 days from issuance unless work is started. This is based on the 1997 Uniform Building Code, Section 106.4.4 which states that a building permit will be null and void if work is not commenced within 180 days. Once the permit is suspended a new permit must be obtained, and any permitee holding an expired permit may apply for an extension not to exceed 180 days. Additionally, no permit shall be extended more than one time . There is not a current appeal process once the permit has gone past the 180 da ys and the applicant has app lied for one extension. Mr. Fruchtl distributed the section of the Uniform Building Code. Ms. Shotwell asked for the correct procedure . Mr. Fruchtl stated the applicant would apply for a new permit once the permit expired. Ms . Reid stated they would also have to pay for new permit fees. Mr. Fruchtl stated the applicant would be restarting the process. Mr. Fruchtl stated there are no cases scheduled for March and asked if the Board wished to meet. It was the consensus of the Board not to meet in March. Mr. Smith asked if the City had a process to notify citizens when their permit expires. Mr. Fruchtl responded that it is his understanding that notifications were sent out in the past, but due to budget cutbacks those notifications are no longer sent out. The applicant is made aware of the 180 day expiration on the building permit. Ms. Reid stated the City is in the process of implementing a new permit tracking software which will assist in reminding staff when permits are expired . There is also the possibility that it can generate a written notice that can be mailed to remind the applicant that the permit is about to expire . 10 • • • VI. CITY ATTORNEY'S CHOICE Ms. Reid stated she had nothing further. VII. BOARD MEMBER'S CHOICE The Board had nothing further. There was no further business brought before the Board. The re gular meeting was declared adjourned at 9: 15 p.m . 11 •