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HomeMy WebLinkAbout2006-09-13 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS September 13, 2006 I. CALL TO ORDER The regular meeting of the Englewood Board of Adjustment and Appeals was ca lled to order at 7:30 p.m. in the Englewood City Council Chambers, Chair Smith presiding. Members present: Carlston, Green, O'Brien, Smith, Sprecace Members absent: Cohn, Shotwell (Excused) Staff present: Brook Bell, Planner Nancy Reid, Assistant City Attorney Chair Smith stated there were five members present; therefore, four affirmative votes are requ i red to gra nt a var iance or appeal. Chair Smith stated that the Board of Adjustment and Appeals is empowered to gra nt or deny variances by Part 111 , Section 60 of the Englewood City Charter. Variances gra nted by the Board a re subject to a 30-day appeal period. Variances are effective at the end of the appea l period. Building permits for construction associated with an approved variance w ill not be issued until the appeal period is ended. Building permits must be obtained and construction begun within 180 days of the variance's effectiv e date. Chair Smith set forth parameters for the hearing: The case will be introdu ced; applicants will present their request and reasons the variance should be granted; proponents will be give n an opportunity to speak; opponents will address the Board; and then staff will address the Board. II. CASE #VAR2006-00006 Mark Swanson 2836 South Sherman Street Chair Smith declared the Public Hearing open, stating he had proof of posting and publication. He introduced the case by stating it is a variance to exceed the six foot permitted m ax imum fence height by seven feet. This is a variance to Table 16-6-6 .2 of the Englewood Municipal Code. Brook Bell, Planner, was sworn in. Mr. Bell provided a brief PowerPoint presentation show ing an overview of the property. The property is lo cated at 2836 South Sherman Street. The property has 75 feet of frontage and is 125 feet deep. The residence is approximate ly 13 feet from the alley. The applicant is proposing a 6 foot high concrete 1 • • • block wall and a 6 foot high gate within a 13 foot high structure. The gate would slide either in front or behind the concrete block wall. Mark Swanson, 2836 South Sherman Street, was sworn in. Mr. Swanson testified the house was built in 1949, and the setbacks are such that he is not able to install a standard gate because it cannot swing into the alley. The gate would have to swing into the property. The property is a duplex. He is a plumbing contractor, and drives a large van. He needs to secure his van and the other tenants need their cars secured from the alley as well. They have been the victims of a lot of vandalism. The submitted plan is the only configuration that is workable to secure his property and prevent vandalism. His gate would not be the only one in the alley; there are two other such gates and three within the block that have overhead structures. His structure would not obstruct anyone's view. Chair Smith asked for the height of the neighbor's overhead track. Mr. Swanson stated the height of their track is 12 feet; there is one next to him that is 8 .5 feet. Ms. O'Brien asked why it needed to be 13 feet. Mr. Swanson responded that his truck is approximately 12 feet; his uncle visits and has a Winnebago which is approximately 12 feet 8 inches . In order to secure a Winnebago or his work vehicle , he needs the extra clearance . Ms . O 'Brien asked Ms. Reid , the Assistant City Attorney, if residents can legally park work vehicles at their residences. Ms. Reid stated there is no restriction for parking an operable vehicle on his property. There are restrictions for inoperable vehicles, trailers, or off-road vehicles. There are restrictions on the type of parking surface. Ms. Carlston asked if there was a restriction on the weight of the vehicle. Ms. Reid stated there was not. Ms. O'Brien confirmed that his truck is 12 feet 8 inches. Mr. Swanson stated when he puts pipes or a wheelbarrow on the top of the truck, then the height exceeds 12 feet. He has three trucks and his uncle has a Winnebago, which is 12 feet 4 inches. Ms O'Brien asked if he parks all three vehicles at his residence. Mr. Swanson stated he parks one; he would prefer that it be secured in the back. Chair Smith stated there is a photo showing a truck with "Keyboard Carrier" on it; he asked the applicant if that was his truck. Mr. Swanson stated it was. Mr. Smith stated next to that truck is a gate similar to what he is proposing; he asked for the height of that gate. Mr. Swanson responded that the gate is over 8 feet in height. Mr. Green stated the 12 foot gate is further down the alley; there are photos of that property in the staff report. Mr. Swanson stated there was a variance granted for a similar gate. Mr . Green stated the property is 2874 South Sherman. Ms. O'Brien stated it isn't 13 feet high. Ms. Carlston stated she saw that property and it is a good example of what the applicant is proposing . 2 • Chair Smith asked the applicant if he would object to the Board imposing a restriction on barring any opaque material from the upper seven feet. Mr. Swanson stated his plan is just a track that the gate would ride and retract back into the fence. Chair Smith confirmed that he is not trying to hide the trucks. Mr. Swanson stated he is not; he has gone through over 12 tires which have been reported to the Englewood Police Department. He reiterated that he is a plumbing contractor; he has a lot of tools and materials in his truck. He needs to secure his truck and would like to park his truck behind his fence. He would also like to allow his tenant to have that same security with their vehicle. Chair Smith asked if two families are currently residing at the property. Mr. Swanson responded no; it will be rented by the first of the year. He had a nurse interested in renting the property, but she was concerned about the security of the neighborhood. Mr. Sprecace noted that one of the neighbors objected to the variance. Mr. Swanson stated the neighbor indicated to him that she doesn't like metal. With regard to that particular property, the upright post would be hitting behind her garage. If necessary, he could move the post so it wouldn't be visible from her property. Mr. Green asked if he investigated how the neighbor was able to build their metal fence and gate. Mr. Swanson stated he didn't'; however, the Building Department gave him a copy of the variance on South Cherokee which was granted under the same conditions as his. Ms . Carlston asked if that was 2987 South Cherokee. Mr. Swanson stated that was • correct; that owner wanted to screen their car and secure it from the public street. • Ms. O'Brien asked if he would be willing to have a 12 foot limitation. Mr. Swanson stated he would prefer 13 feet because his neighbor has an RV and indicated that he is limited to what he can put under that gate. The alley has all its utility wires and telephone posts up and down the alley. The track would blend in with the wiring. Twelve feet would limit him, but if that is what the Board grants him than he will work within that limitation. Mr. Bell stated the variance request was forwarded the 7 City departments. The only c0mments received were from the Engineering Division and Community Development Department. The other departments had no comments. The Engineering Division requested that if the variance was granted that the property lines be verified so that there is no encroachment into the alley. Community Development made recommendations related to the quality and workmanship of the gate system if the variance is granted. Mr. Bell reviewed the conditions listed in the staff report. Ms. Carlston asked if staff recommended that the applicant have a survey done to verify the rear property line. Mr. Bell stated there are a number of ways to satisfy Engineering's concern regarding the rear property line. A survey is always the best way; there is other data Mr. Swanson can use. A survey would be appropriate as a condition. Ms. Carlston stated she feels it might be appropriate to protect the applicant so he is placing it correctly. Ms. Carlston asked how tall the structure is at 2987 South Cherokee that has a variance . Mr. Bell responded that he did not measure it, but he recalls that it is 10 feet 6 inches. Ms. Carlston asked if other properties on the same block as the applicants received variances. 3 • • • Mr. Bell stated they did not; he checked on those addresses and they were not issued permits. Staff does not know when those fences were built. There were no other persons present to testify for or against the variance. Chair Smith incorporated the staff report and exhibits into the record and closed the public hearing. Mr. Sprecace moved; Mr. Green seconded: THAT CASE VAR2006-0006, 2836 SOUTH SHERMAN STREET, BE GRANTED A VARIANCE TO EXTEND SEVEN FEET ABOVE THE SIX FOOT FENCE HEIGHT LIMITATION TO CONSTRUCT AN OPEN AIR METAL STRUCTURE TO SUPPORT A MAXIMUM SIX FOOT CEDAR SECURITY GATE PROVIDED THE FOLLOWING CONDITIONS ARE MET: 1. THE OVERHEAD SUPPORT STRUCTURE AND GATE SHALL UTILIZE HIGH QUALITY, NEW MATERIALS THAT MEET THE CRITERIA IN SECTION 16-6-6:E OF THE UNIFIED DEVELOPMENT CODE. 2. THE OVERHEAD SUPPORT STRUCTURE AND GATE SHALL BE DESIGNED, CONSTRUCTED AND FINISHED IN A PROFESSIONAL MANNER THAT MEETS OR EXCEEDS INDUSTRY STANDARDS IN THE DENVER METRO AREA. 3. THE GATE SHALL NOT HAVE MORE THAN THREE SUPPORT COLUMNS AND NO PART OF THE STRUCTURE INCLUDING ANY FOOTINGS SHALL ENCROACH INTO THE ALLEY. THIS IS A VARIANCE TO TABLE 16-6-6.2 OF THE ENGLEWOOD MUNICIPAL CODE. Ms. O'Brien stated she believes 13 feet is too high, and doesn't meet criteria two and three. Ms. Carlston stated the City endorses having recreational vehicles hidden from view and µheed off the street. This plan encourages that even for temporary usage. Also, the topography of the location is rather bizarre; it is unfortunate that he has to park in such a tight spot in the alley. His plan actually adds to the safety of the neighborhood. Chair Smith stated in this particular neighborhood the garages are built right up to the setbacks in the alley. No matter what the height, he doesn't believe it would disturb the appearance . It also encourages off-street parking. Mr. Green stated the other side of the alley slopes uphill even more. Those houses are not obstructed by the fence . He believes the applicant should be able to build to cover his vehicles; one foot doesn't make a difference to him. The houses across the alley will be above it and will not obstruct their view. 4 • • • With no further discussion, the secretary polled the members' votes . Ms. Carlston stated she voted yes. It meets the first criterion in that the unique physical topography of the property is very peculiar and it affords the property owner space to park hehind his dwelling. His dwelling is very close to the alley. The second criterion is met in that it is consistent with the intent of the zone district regulations to secure public health, safety and welfare. Building the gate so that it rolls on a track system does afford that safety and allows the applicant to park safely off the alley. The third criterion is met in that it does not permanently impair the use or development of adjacent conforming properties or alter the essential character of the neighborhood. A number of properties on that block have the same type of structure. It meets the fourth criterion in that it is not a self-imposed hardship. The house 'v'v'.as built in 1949 and occupied by a different owner. The difficulty in obtaining secured off-street parking is not a self-imposed hardship. Mr. Gre e n stated he voted yes, concurring with Ms. Carlston . Mr. Spr ecace stated he voted yes concurring with Ms. Carlston. It meets all four criterion. There is a unique slope in the front of the house, and the alley slopes up in the back. It will reduce vandalism and theft. It will not permanently impair the use or development of adjacent properties or alter the essential character of the neighborhood. The fence will be on the rear of the property . Ms. O 'Br ien stated she voted no. It does not meet the second or third criterion due to the height of the proposed support structure. She would have voted yes if the height requested had been no higher than any structure currently on the block. Chair Smith stated he voted yes, concurring with Ms. Carlston and Mr. Sprecace. AYES: NAYS: Carlston, Green, Sprecace, Smith O'Brien ABSTAIN: None ABSENT: Cohn, Shotwell The Chair announced the motion was granted by a 4-1 vote. The Chair instructed the applicant to contact staff for any additional or necessary information Ill. MOTION TO RECONSIDER Ms. O'Brien moved; Mr. Sprecace seconded: TO RECONSIDER THE DECISION IN CASE VAR2006- 00005, 4857 SOUTH FOX STREET, FOR THE PURPOSE OF CLARIFYING THE BOARD 'S DECISION. Ms. Carlston stated for the record that she was absent for the August 9 public hearing, but sLe read the Minutes, Staff Report, and Exhibits. She feels comfortable voting on the Motion and entering into any discussion. 5 • Ms. Reid stated the Motion to Reconsider must be voted on first. If that passes, then the Board can discuss any other clarifying motions that the Board may wish to make. Chair Smith clarified that the Board can discuss the Motion to Reconsider first before voting. Ms. Reid stated that was correct. Ms. O'Brien stated her purpose of raising the Motion for Reconsideration is that she does nnt believe the Board's decision provided any direction to staff or the applicant. Perhaps the Board needs to explain what it wants to see in terms of a written order or decision. Further, the Board should explain why they voted to overturn the decision . Mr. Sprecace stated he believes a judge would find that the City is estopped from making its position the way it did. The property has been a nonconforming use for as long as Ms. Fowler owned the house . A judge would look at the case and determine that it was not equitable to uphold th e City's decision. That was why he voted to go against the City. Chair Smith asked if the object was to obtain more direction. Ms. O'Brien asked what direction has the Board given the applicant. The Board did not clarify how the property can be used. She feels a decision should be given that has some meaning and clarity for the applicant. Mr. Sprecace stated he believes the Board overturned the Director's decision, and the applicant can continue to use the property as she has been for the last nine or ten years. Ms. Carlston stated she does have concern as to the lack of clarity for the applicant; how is she to market her property and know how to use the second dwelling. Mr. Green • agreed. • Discussion ensued. Chair Smith stated from what he recalls the property owner testified that she returned one or two cards stating she used the property as she always had over the ten year period. He doesn't necessarily agree with Mr. Sprecace in the estoppel arguments because the applicant has to do something. It is similar to adverse possession; the applicant has to do something positively to reinforce the use to protect it . On the other hand, the City didn't present any proposed options for the use of the property. He agrees that it was an unsatisfying result, and he would like to see it fixed somehow. Perhaps a new hearing should be held and the City and the applicant should bring forth new options. Ms. O'Brien stated she is open to what Chair Smith suggests if there is a mechanism in which to accomplish it. Chair Smith stated it might be by granting the Motion to Reconsider pending action by either the applicant or the City to request a hearing. Ms. Reid stated the Board cannot receive new evidence under the Motion to Reconsider. One of the possibilities is the Board can remand the case back to staff for clarification for further action consistent with the Board's decision at last month's meeting. The Board's decision was that the applicant could have two houses. The Chair stated the Board's decision was the Director's decision was wrong. The Chair stated the Board should be able to pass the Motion to Reconsider and consider a second motion to reopen the public hearing if requested by either the applicant or by staff. 6 • • • Ms. O 'Brien asked if there could be a Motion for Rehearing . Ms. Reid stated a Motion for Rehearing would be needed to accept new testimony. Ms . Carlston stated new evidence would be needed for a rehearing. Chair Smith stated there should be a way to reopen or rehear the case . Ms. Carlston asked if the procedures were outlined in the Board's handbook. Ms. Reid reviewed the procedures for a rehearing. Discussion ensued. Ms. Reid suggested the Board continue the Motion to Reconsider until the next meeting. At that time the Board can make a determination as to whether or not staff or the applicant has filed a Motion for Rehearing, a settlement has been reached, or if the Board wants to reconsider the case. Chair Smith agreed with Ms. Reid's suggestion. Ms. O'Brien moved; Mr. Green seconded: TO TABLE THE MOTION TO RECONSIDER THE DECISION IN CASE VAR2006-00005, 4857 SOUTH FOX STREET UNTIL OCTOBER 11 , 2006 . Ms. O'Brien stated this provides the parties time to reach a decision . Chair Smith stated if no one files anything within the next month, he will not vote for the Motion to Reconsider and he will urge the rest of Board to vote against it as well. If one of the parties files something with the Board, it will be considered. He wants to hear from the interested parties . AYES: NAYS: ABSTAIN: ABSENT: Carlston, Green, O'Brien, Sprecace, Smith None None Cohn, Shotwell The Chair announced the motion granted by a 5-0 vote. IV. APPROVAL OF MINUTES Mr. Sprecace moved; Ms. O'Brien seconded: TO APPROVE THE AUGUST 9, 2006 MINUTES. AYES: NAYS: ABSTAIN: ABSENT: Green, O'Brien, Smith, Sprecace None Carlston Cohn, Shotwell Motion carried . The Chair announced the motion approved by a 4-0 vote . 7 • v . STAFF ADVISOR'S CHOICE Mr. Bell stated there will be a variance case at the October meeting. VI. CITY ATTORNEY'S CHOICE Ms. Reid stated per the Board 's request, City Council discussed the Board's alternate member voting under two different scenarios. The first was if the alternate was ne eded for a quorum; the second was if there was a Board member absent. After discussion, Council decided in both cases their procedures were sufficient. There are procedures in place to remove a Board member who has attendance issues. They believe the purpose for an alternate is to lea rn and step in when a permanent vacancy occurs. Ms. O'Brien stated she does not understand how absences become exc us ed. Ms. Reid stated she believes an excused absence is when the Board membe r calls the recording secretary prior to the meeting and lets her know he /she will not be able to attend the meeting. Ms. Fenton stated there is an atte nd an ce policy es t ab lish ed by City Council, and she will provide th e m embers with a copy. VII. BOARD MEMBER'S CHOICE Ms. Carlston thanked the City for sponsoring the Board/Commission Appreciation eve nt on • August 28. • There was no further business brought before the Board. The regular meeting was declared adjourned at 8: 10 p.m . 8