HomeMy WebLinkAbout2006-11-08 BAA MINUTES•
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MINUTES
BOARD OF ADJUSTMENT AND APPEALS
November 8, 2006
I. CALL TO ORDER
The regular meeting of the Englewood Board of Adjustment and Appeals was called to
order at 7:00 p.m. in the Englewood City Council Chambers, Chair Smith presiding.
Members present: Carlston, Cohn, Green, O'Brien, Smith, Sprecace
Members absent: Shotwell (Excused)
Staff present: Brook Bell, Planner
Nancy Reid, Assistant City Attorney
Chair Smith stated there were six members present; therefore, five affirmative votes are
required to grant a variance or appeal.
Chair Smith stated that the Board of Adjustment and Appeals is empowered to grant or
deny variances by Part 111, Section 60 of the Englewood City Charter. Variances granted
by the Board are subject to a 30-day appeal period. Variances 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 Smith 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. Staff will give a preliminary overview of the variance before testimony is taken.
II. CASE #VAR2006-00008
Neighborhood Professionals
11 64 East Bates Parkway
Chair Smith stated he had proof of publication. He introduced the case by stating it is a
variance to encroach 2 feet into the required 5 foot side setback. This is a variance to
Table 16-6-1.2 of the Englewood Municipal Code
Brook Bell, Planner was sworn. Mr. Bell provided a brief PowerPoint presentation. The
property which is the subject of the variance is located at 1164 East Bates Parkway in the
northeastern portion of the city. The site is 50 feet by 120 feet, and is zoned R 1 A for large
lot single unit residential. The surrounding properties are also zoned R 1 A. The property
to the west is 1150 East Bates Parkway; the owners of this property submitted a neighbor's
statement. The dwelling unit on the property is approximately 975 square feet, and the
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garage that was constructed is approximately 400 square feet. Mr. Bell showed a photo of
the constructed garage at 1164 East Bates and a photo of a garage at 11 50 East Bates. The
garage at 1164 East Bates Parkway is approximately 3 -3.5 feet from the property line, as
is the garage to the west. The approved site plan clearly indicates there needs to be a 5
foot setback from the property line; however, the garage was built 3 feet from the property
line.
Jerry Krizek, representing Neighborhood Professionals, 2870 North Speer Boulevard, was
sworn in. Julie Saad, 1164 East Bates Parkway, the property owner, was also sworn in.
Mr. Krizek stated he was there on behalf of Michelle Smith who was very ill and had a
statement from her authorizing him to speak on behalf of Neighborhood Professionals.
Chair Smith asked if the property was posted for at least 15 consecutive days prior to the
hearing. Mr. Krizek stated he posted the sign two days before it was required, but it
doesn't remember the date. The sign has remained posted since that time; he did not take
a photograph of the sign because he thought Ms . Smith was going take the photograph.
Mr. Krizek testified that when the site plan was submitted, the drawing indicated a 3 foot
setback. Staff then corrected the drawing showing a 5 foot setback. The contractor who
poured the concrete for Ms. Smith did a similar job in Englewood, which had a 3 foot
setback, and he did not pick up the 5 foot setback on these drawings. He poured the
concrete for this job at 3 feet. The inspectors inspected the footings, and the garage was
then framed. When the final inspection was made, the inspector then informed him that
the garage was supposed to be built 5 feet from the property line. It was at that point it
was brought to everyone's attention that the garage was built in the wrong location;
however, the garage is complete. Again it was not until the final inspection that it was
determined the garage was built in the wrong location. It was a mistake made by the
contractor; it should have been caught by the crew when the concrete was poured . The
inspector didn't catch it either. As a garage builder for 20 years in the metro area, he does
know that Englewood has 3 and 5 foot setbacks that fluctuate depending on the
neighborhood. Usually when staff redlines the drawings, they would have crossed out the
3 feet. The concrete crew should have caught the change. The bottom line is there is a
built garage waiting for a final and it is built 3 feet rather than 5 feet from the property line.
It is a mistake that was made and we are asking for the Board's indulgence to leave it. It is
a difficult process to move the garage.
Ms. Carlston stated Ms. Smith states in the Board's documents that she had to leave the
country on an emergency; and she did not communicate the changes to the contractor.
Mr. Krizek stated that was correct. Ms. Carlston stated Ms. Smith was, therefore, admitting
some fault. Mr. Krizek stated that was correct; her daughter moved to Russia so Ms. Smith
was going back and forth to assist her daughter. Ms. Smith realizes it is her mistake;
however, she has been sick the last few days so she asked him to represent her.
Ms. O'Brien stated she is troubled by his presentation; she confirmed that he is not
suggesting that the City had some responsibility. In fact, the City noted on the plans that it
was a 5 foot setback. Mr. Krizek stated he recognizes that; he is not suggesting that it is the
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City's fault. As a contractor, it would have been nice if the inspector had noticed the error
at the footing inspection rather than at the final. He is not saying the inspector is at fault,
but in the future it would be nice for the inspector to check the setbacks at the footing
inspection. Ms. O'Brien stated staff already noted the setback on the plans. Mr. Krizek
stated she was correct; it isn 't the City's fault.
Mr. Cohn stated the garage is placed as a mirror reflection of the garage at 11 50 East Bates
Parkway. They both have the same side setbacks and rear setbacks. He stated he can see
were the construction crew might have gotten confused. Mr. Krizek stated he wouldn't
know what more to say even if it were his job other than he is sorry that it happened .
Ms. Carlston confirmed that in the submitted documentation, the company admits that it is
a self-imposed hardship. Mr. Krizek stated that is correct; there is no hardship. If the
Building Department requires it, they could install a 5/8" firewall on the wall closest to the
side property line.
Mr. Smith asked if it would be a hardship to move the garage. Mr. Krizek stated it would
be very difficult to move the garage. It is on a monolithic slab; it is not on a foundation. It
would be a hardship to move the garage. It would take some time and cost some money.
Mr. Bell stated the history on the permit is detailed in the staff report. The variance request
was forwarded to six other City departments; those departments did not object to the
variance. Mr. Bell reviewed the pros and cons of the variance request:
• The structure is existing; however, there are no other unique conditions to the lot.
• The Fire and Building Divisions had no safety concerns with the variance request. In
a R 1 B or R 1 C zone district, the side setback for a garage is 3 feet rather than 5 feet; the
5 feet is associated with the R 1 A zone district because those lots typically have larger
lots.
• The 5 foot setback was clearly conveyed to the applicant verbally, on the approved
site plan, and on the plan review history.
• The surrounding properties are already developed; however, the purpose of the
Zoning Code is that new development complies with the current Code.
• The applicant was made aware of the 5 foot requirement.
Chair Smith asked if the garage at 1150 East Bates Parkway was also located 3.5 feet from
the side. Mr. Bell stated that was correct. Chair Smith asked if they obtained variance. Mr.
Bell stated he could not find a permit for that garage so he could not ascertain when that
garage was built.
Mr. Cohn stated there are also two other garages to the west that appear to have been
built with the same side and alley setbacks .
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Ms. Carlston asked who spoke with Ms. Smith about the 5 feet, and that Ms. Smith
acknowledged the 5 foot setback. Mr. Bell stated Ms. Langon spoke with her, and it was
documented on the plan review history.
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. Cohn moved;
Ms. O'Brien seconded: THAT CASE VAR2006-0008, 1164 EAST BATES PARKWAY, BE
GRANTED A VARIANCE TO ENCROACH 2 FEET INTO THE
REQUIRED 5 FOOT SIDE SETBACK ALLOWING THE
GARAGE BUILT UNDER PERMIT #BLDG2006-00178 TO
REMAIN.
THIS IS A VARIANCE TO TABLE 16-6-1.2 OF THE
ENGLEWOOD MUNICIPAL CODE.
Ms. O 'Brien stated she was having difficulty with the fourth criterion. Chair Smith stated it
was not the fault of the homeowner. Ms. Carlston stated she has difficulty with the
applicant acknowledging the 5 foot setback and then building it at 3 feet because of an
internal miscommunication .
Mr. Sprecace asked if the Board had a precedent in that they heard a similar case a couple
of months ago. Ms . O 'Brien stated the Board did hear a similar case but the difference was
that case involved a 6 foot setback from the alley and a neighbor across the alley objected
to the variance. Chair Smith stated the Board is not bound by precedent; the Board is to
determine each case on its merits.
Chair Smith stated the only way to get around the self-imposed hardship issue is that the
owner didn't construct the garage herself. The other side is the economic waste; does it
make sense to spend a lot of money to move the garage two feet. Ms. Carlston stated that
really isn't part of the criteria.
Mr. Green asked if it is ever an option for the Board to penalize the applicant. Chair Smith
stated unfortunately it is not.
Ms. Carlston stated she questions the procedure; it was redlined on the site plan; it was
acknowledged by the contractor; and it was acknowledged during the hearing that it was
their mistake that the garage was built in the wrong place. The Board needs to give
credibility to staff for making the remarks on the site plan; we should expect people to
adhere to the comments.
Discussion ensued .
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Mr. Cohn asked Ms. Carlston if she could understand how the mistake happened due to
the miscommunication between the company and the contractor; the 3 feet not being
crossed out on the site plan, and the contractor seeing the garage next door being built as
close to the side setback. Ms. Carlston stated she doesn't speculate what the contractor
thought. Mr. Cohn stated his point has to do with the 3 feet not being crossed out. Ms.
Carlston stated Ms. Smith did not do her job in clearly communicating the job before she
left. If there was any question on the contractor's part, than he should have brought it to
the attention of someone within the company rather than making his own determination. If
he makes his own decision, then he is an employee of that garage company.
Mr. Sprecace stated there were plans that stated where things were to be built, regardless
of where the other garage was built. Contractors don't "eyeball."
Ms. Carlston stated she is in construction; if the contractor makes errors, they pay the price
for it.
With no further discussion, the secretary polled the members' votes.
Ms. O 'Brien stated she voted yes. The unique physical circumstance is the existence of the
garage structure at the approximately same distance from the property line as the garage
immediately adjacent to it. It secures public hea lth, safety and welfare and does not
jeopardize it. The adjacent property is not conforming; therefore, the variance will not
permanently impair its use or development. It will not alter the essential character of the
neighborhood. The fourth criterion is addressed by doing substantial justice.
Mr. Cohn stated he voted yes, concurring with Ms. O'Brien.
Mr. Sprecace stated he voted no. It does not meet the fourth criterion. The Unified
Development Code was approved to uphold standards. Companies have insurance
policies for these reasons.
Mr. Green stated he voted yes, concurring with Ms. O'Brien. The garage exists and is not
out character with the other garage in the neighborhood. He cannot justify tearing the
garage down.
Ms. Carlston stated she voted no. It does not meet the fourth criterion. It is a self-imposed
hardship as testified by the applicant.
Chair Smith stated he voted yes, concurring with Ms. O 'Brien.
AYES:
NAYS:
ABSTAIN:
ABSENT:
Cohn, Green, O'Brien, Smith
Carlston , Sprecace
None
None
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The Chair ann ou n ced the m otion denied by a 4-2 vote sin ce 5 affirm at iv e votes were
required. Th e Chair inst ructed the app li ca nt to contact staff for any add iti ona l or necessary
in fo rm at io n .
Mr. Kr iz ek stated the City ha s a respo n sibility to have someone measure the setback before
the final inspection. Chair Smith ins tr ucted Mr. Krizek to address h is concerns w ith staff
tomorrow during bus in ess ho ur s. Mr. Krizek continu ed to pe rso nally address the Board.
Chair Smith in st ru cted Mr. Krizek to leave the co urtroom as hi s hearing was e nd ed or h e
wo uld be found in contempt of this body.
Ill. APPROVAL OF MINUTES
Mr. Green m oved;
Mr. Sprecace seconded: TO APPROVE THE SEPTEMBER 13, 2006 MINUTES.
AYES:
NAYS:
ABSTAIN:
ABSENT:
Carlston, Cohn, Green, O'Brien, Smith, Sprecace
None
None
Shotwell
M otio n ca rri ed. The Chair announced the m otion approved by a 6-0 vote .
IV. STAFF ADVISOR'S CHOICE
Mr. Bell sta ted there is a variance case to co nstruct a ga rage 3 .5 feet into the side setback
schedu led for the December m eet in g.
V. CITY ATTORNEY'S CHOICE
M s. Reid stated she and Mr. Bell will m ee t to invest iga te the neighbor's ga rage. If the
neighbor is found to be in violation, the C i ty w ill p ur sue it.
Regarding in spections, concrete in spectio n s are a b ui lding code in spectio n. The cost is
includ ed in th e bu ildin g permit fees. It is not the requirement of the building insp ecto r to
inspect zoning issues. To p roperly inspect for all zon in g issues and any other possible
issues, we wo uld need an Ordinance requiring an in spectio n by zoning staff wh ich would
in crease the permit fee s. The costs of the fees would then be prohibitive. From City policy,
whoever pulls the permit is responsible fo r comply in g with the submitted and approved
drawing. Th at is one of the reaso n s for the Development Review Team.
Cha ir Smith stated he und ersta nd s there is an in spect io n fo r building code compliance, not
zoning code comp li ance . H owever, a City staff m ember we nt o ut at some point and fo und
out that it didn't com ply with the setback. Chair Smith asked if that was so m ethin g t h e City
did as a matter of co ur se fo r every b uildin g permit. Mr. Bell responded tha t zo nin g staff
does not go out on eve ry bu ilding permit; there are some bu il d in g permits that do not
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involve zoning such as a re-roofing. Zoning final inspections look at setbacks, height, etc.
Mr. Bell stated in 2005 the City conducted approximate ly 80 zoning i n spect io n s.
Mr. Cohn asked when the final in spect ion occ urred . Mr. Bell stated it i s the last in spect io n.
Ms. Reid stated it is a protect ion for the City. Cha ir Sm ith isn't suggest in g t he City should
change its policies.
VI. BOARD MEMBER'S CHOICE
Mr. Green stated there is a 12 foot high fence with a gate approx im ate ly a half block from
where he li ves that appears to have been bu il t without a permit. It was refe rr ed to during
the hearing a coup le a months ago. Ms. Reid stated she and Mr. Bell will look into it.
There was no further business broug ht before the Board. Th e regu lar meeting was decla red
adjourned at 7:45 p.m .
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