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HomeMy WebLinkAbout2006-05-10 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS May 10, 2006 I. CALL TO ORDER The regular meeting of the Eng lewood Board of Adjustment and Appeals was ca ll ed to order at 7:30 p.m. in the Englewood City Council Chambers, Chair Smith presiding. Members present: Members absent: Staff present: Carlston, Cohn, O 'Brien, Shotwell, Smith, Sprecace Green (Excused) Brook Bell, Planner Tricia Langon, Senior Planner Dan Brotzman, City Attorney Chair Smith stated there were six members present; therefore, five affirmativ e votes are required to grant a variance or appeal. Chair Smith stated that the Board of Adjustment and Appea ls is empowered to grant or deny variances by Part 111 , Section 60 of the Englew oo d 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 assoc iated with an approved variance will not be issued until the appea l 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 sho uld be granted; proponents will be given an opportunity to speak; opponents will address the Board; and then staff will address the Board. II. CASE #VAR2006-00002 Preferred Garages 2924 South Ogden Street Chair Smith declared the Public Hearing open, stating he had proof of publication and posting. He introduced the case by stating it is a va rian ce to encroach 3 feet into the required 6 foot rear setback. This is a varianc e to Table 16-6-1.2 of the Englewood Municipal Code. Gr eg Moss of Preferred Garages, 17383 East Pondlilly Drive and Stephany Schmidt, 2924 South Ogden Street were sworn in. Mr. Moss t es tified that a garage was built that encroaches into the rear setback. The City requir es a 6 foot rear setback; it was built at 3 feet. His company took the measurements for the prope rty; the side property lines were • • • measured based off the existing fences which turned out to be inaccurate. There was a fence that appeared to be the owner's property line, which he thought was the alley's edge. It is an unpaved alley, with a jagged surface, and it is hard to determine where the property lin es are. They based it off that the alley line and didn't realize the measurement was inaccurate until there was an inspection after the garage was built. Mr. Moss stated he realizes it was their fault in not verifying the property lines and setbacks from the alley. Mr. Moss continued; there are a few other projects in the neighborhood that have the same setbacks as this garage. There are some code issues that state if the overhead door is not on the alley line, than the garage can be built closer to the property line. He stated he believes the main issue is accessibility and turning radius from the alley. The owner has no problem getting in and out of her vehicles; there are no site problems down the alley from any of the neighbors. It does not block any views; there are other garages next to this garage that are the same distance from the all ey. The "bottomline" is they mess ed up la ying out the property assuming the property lin e was the alley edge. Mr. Cohn stated the other garages which are that close to the alley have side entrances; he asked if the entrance for this garage could be changed to a side entrance. Mr. Moss responded that the subject property has extreme topog raphical difficulties. There is approx imately a 24 inch retaining wall around the perimeter of the garage; the garage floor is sunk down to alley grade. The owner also doesn't have the turning radius on her property; she wouldn't have enough room to ge t the car in between the fence and the garage to turn it into the building. Mr. Cohn stated it appears the slab can be within three feet of the alley; only the building can't be that close. He asked if th e building could be moved back three feet. Mr. Moss responded that the monolithic foundation is designed somewhat lik e a bridge so it can move as one piece. Attaching a three foot slab onto the back could cause problems and he didn't know if an engineer would even sign off on the structure. Mr. Sprecace asked if the concrete slab encroaches into the alley. Mr. Moss stated it does. Ms. Schmidt stated the concrete encroaches 2 feet into the alley; they have been asked to eithe r remove the concrete or sign an ag reement that they wouldn't hold the City responsible if it got damaged. She stated they are willing to sign the Encroachment Agreement. Ms. Shotwell confirmed that the concrete slab encroache s 2 feet into the alley; she stated that from the photograph it appears that there is a significant drop from the slab to the alley. Mr. Moss stated that it is a few inches. Ms. Schmidt stated it slopes down to the alley because the garage had to be dug out 2 feet. The concrete slab actually slopes down to the alley, but there is actually only a 2 inch drop between the top of the concrete lip to the actual dirt of the alley. Ms. Shotwell stated it looked as if there was a step. Ms. Schmidt stated it is a piece of board for her to get her scoote r into the garage . 2 • • • Mr. Moss stated that the alley on the far side of the photograph is more level. The alley from north to south also has a slope; the alley at the south side of the garage is about 6 inches higher than on the north side. Ms . Shotwell asked if the slab could be half of its current length. Mr. Moss stated it was what was charged in the contract, a 6-foot apron poured to the alley. A lot of the alleys, such as in Denver, are being paved and then the concrete butts right into the paved alley and makes for a nice clean edge from the property line. Ms. Shotwell stated that if two feet is cut off, it would no longer encroach. Mr. Moss stated that was correct. Ms. Shotwell asked if that would impair its use. Mr. Moss stated it would not; it was what the owner paid for. Ms. Shotwell asked for the price of 2 feet of concrete. Mr. Moss state it was approximately $200. He reiterated that they didn't realize that it encroached until after the garage was built, finaled by the City and the garage was being used by the homeowner. Ms. Shotwell asked how much would be involved in trimming the 2 feet of concrete. Mr. Moss stated it would involve cutting the concrete; the only problem is it would leave a raw edge which would continue to flake . He would prefer that be the last resort; the homeowner signed a waiver that if the encroaching concrete was damaged by any vehicles she would accept responsibility. Mr. Cohn confirmed that the garage encroaches 3 feet into the setback and the concrete apron is an addition 2 feet, Mr. Moss stated that was correct. The garage encroaches because it is an alley entrance rather than a side entrance. If the door were on a different wall, there wouldn't be an issue. Ms. Shotwell stated the garage encroaches 3 feet. Mr. Moss stated the letter he received from the City stated approximately 2.2 feet; he rounded it to 3 feet. Ms. Shotwell stated that in additional to that encroachment, the concrete apron encroaches an additional 2 feet beyond that 3 feet, which makes it actually a 5 foot encroachment. Mr. Moss stated it is all included in the 3 feet. Mr. Smith stated the Board is not concerned with the 2 feet of concrete. The Board is only concerned with the structure encroaching into the setback requirements. Ms. Shotwell stated she wants to be clear that the structure encroaches 3 feet and the concrete is included in the 3 feet. Mr. Moss stated the actual property line is roughly 2 feet 2 inches from the edge of the driveway. The actual setback from the alley to the garage is approximately 3 feet 10 inches. He rounded it to 3 feet. Mr. Smith stated a variance is not needed for the concrete apron. Ms. O 'Brien confirmed the garage is located at 2924 South Ogden. Mr. Moss stated that was correct. Ms. O'Brien stated the address of the individual directly across the alley is 2909 South Corona. Mr. Moss stated that was also correct. Ms. O'Brien asked if that was the individual who has objected to the variance. Ms. Schmidt stated that was correct. Tricia Langon, Senior Planner · was sworn in. Ms. Langon clarified that the structure encroaches 3 feet into the rear setback; the apron encroaches 2 feet into the public right-of- way. The issue before the Board is the encroachment of the structure. Regarding the 3 • • • encroachment of the apron into the right-of-way, the Public Works Department has given the property owner an option to either execute an Encroachment Agreement or to remove that section of concrete which encroaches into the public right-of-way. Ms. Carlston asked Ms. Langon if the City leaves it up to the property owner and/or co ntractor to make the accurate measurements for placement of the structure. Ms. Langon stated that was correct. Ms. Carlston asked if the City went out periodically while the structure is being built to check setbacks. Ms. Langon responded because the City does not require a survey for any building permits; it does not have any accurate surveys. In this particular case, the alley is a dirt alley; ther e is no eve n line and no real measurement. Unless someone has had a survey done, it is up to the applicant to identify property lines and build their structure on what they believe to be accurate property lines. Ms. O'Brien asked how the issue came to light. Ms. Langon stated it came to light when she went out to do the final inspection; she imm ediate ly noted that the garage was the same distance as the garage next door which has the door facing to the side. Ms. Langon continued; typical alleys are 16 feet. Half of the alley would be 8 feet to property line and then 6 more feet would be the req uired distance the structure would ne ed to be from the property line. When she m easured from the garage 14 feet back into the alley, she was almost to the other side of th e alley. It was then she made comments in her inspection report that it appeared that the ga rage was encroaching into the setback . She gave the property owner the option of surveying and coming up with an accurate m eas urement to prove the City was wrong or applying for the variance. A survey is $1,200- $1,800 which is probably why the homeowner opted for the variance. Based on the standard method the City measures, it appeared the garage did encroach into the setback. Ms . O 'Brien asked if Preferred Garages was a lic e ns ed contractor in the City. Ms. Lan go n responded that anyone who does work within the City would have to be licensed . Mr. Smith asked if they were licensed. Mr. Moss respond ed that he is licensed in the City. Mr. Cohn stated that on page 2 of the staff repo rt, Community Development notes that: "On December 7 5, 2005 the Building Division condu cted a monolithic slab insp ectio n . This inspection was for the construction of the ga rage slab and footings; however, Community Development was not contacted to verify required setbacks. 11 Mr. Cohn asked why the inspector didn't notice the slab was too close to th e property line. Ms. Langon respond ed that the building inspector is looking at how th e slab is poured, if the r eba r is in the correct location, if the footings are built correctly, etc. Those a re the types of things the Building Division is looking for. Because it is a construction site with an open hole and an un even alley, it is difficult to know where to draw th e lin es. Mr. Smith confirmed that no one surveyed the lo cat ion of the garage on the lot. Ms. Langon stated that was correct. Mr. Smith stated that no one really knows whether or not it encroaches. Ms. Langon stated that based on the City's standard for determining the center of the alley and based on the other garages that are 3 feet off the alley, this garage does encroach. She also asked Ms. Schmidt to m eas ure from the center of alley to th e 4 • • • property line and the garage is within the thre e feet. Mr. Smith reiterated that everyone really is guessing because there isn't a survey. Ms . O 'Brien confirmed it would be the applicant's expensive to obtain the survey. Ms. Langon stated that is correct. Ms. O'Brien summarized that the applicant has admitted the ga rage encroaches and is requesting a variance to allow that encroachment. Ms. Shotwell asked staff if at the time the permit is pulled, if anyone explains to the contractor or homeowner how to measure from the ce nter of the alley to the setback. M s. Lan go n stated the assumption is that the applicant would know where the property lines are located. It is the applicant's responsibility to locate those property lines whether it is by the City's method, through a survey, or through a location improvement certificate. Ms. Shotwell again asked if the City provides any guidance. Ms. Langon responded every situation is different, and staff provides guidance if the y are asked. Ms. Carlston asked for clarification on the cost of a survey. Ms. Langon stated the cost runs from $1,200 -$1,800 . Mr. Smith stated he had a question for th e City Attorney. The application before the Board states the applicant is Preferred Garages and the property owners are Coral and Stephany Schmidt. The criteria for granting a variance includ e th at it not be a self-imposed difficulty or hardship. Mr. Smith asked if the self-imposed difficulty refers to the applicant or the property owners. If it refers to the applicant, it seems to be a "slam dunk" that it was self- created. If it refers to the owners, it may not be as clear. Mr. Brotzman stated since the variance runs with th e lan d, it would refer to the prop e rty owners not the applicant in this case. Mr. Smith confir med that it relates back to the owners. Mr. Brotzman stated that was correct. There were no other persons present to testify for or against the variance. Chair Smith incorporated the staff report and exhibits into the reco rd and closed the public hearing. Ms. O 'Brien moved; Ms . Carlston seconded: THAT CASE #VAR2006-00002, 2924 SOUTH OGDEN STREET, BE GRANTED A VARIANCE TO ENCROACH 3 FEET INTO THE REQUIRED 6 FOOT REAR SETBACK ALLOWING THE GARAGE BUILT UNDER PERMIT #BLD2005-0031 S TO REMAIN PROVIDED ONE OF THE FOLLOWING CONDITIONS IS MET: 1. THE PROPERTY OWNERS SHALL COMPLETE AN ENCROACHMENT AGREEMENT FOR THE CONCRETE DRIVEWAY ENCROACHING 2 FEET INTO THE RIGHT OF WAY, WITH THE ENCORACHMENT AGREEMENT CONTAINING LANGUAGE REGARDING DAMAGE TO DRIVEWAY BY MAINTENANCE OPERATIONS; OR s • • • 2. THE ENROACHING 2 FEET OF THE CONRETE DRIVEWAY MUST BE SAW CUT, REMOVED, AND THE RIGHT OF WAY RESTORED TO ITS ORIGINAL CONDITION. THIS IS A VARIANCE TO TABLE 16-6-1.2 OF THE ENGLEWOOD MUNICIPAL CODE. Mr. Smith asked why the 2 feet was in the suggested motion if the Board wasn't to consider it. Ms. Langon responded that it was a requirement by the Public Works Department that they have one or the other situation handled. Mr. Smith stated the Board can't grant a variance to that 2 feet which encroaches into a re co rd ed easement or right-of-way. The Board can grant the variance for the structure and it is up to the City to solve the concrete apron issue. Ms. Langon stated Public Works is asking that one of the conditions be addressed if the variance is granted. Mr. Smith stated he doesn't believe it should be part of the Board's action. Ms. O 'Brien asked for a legal opinion. Mr. Brotzman stated it makes sense to remove the conditions from the motion. Ms . O'Brien amended her motion by striking th e conditions. Ms. Carlston agreed to the friendly amendment. Ms. O 'B rien stated she is troubled by the obj ec tion from the prop e rty owner across the alley. Ms. Carlston stated she is troubled that there isn 't any clear point of reference based on City criteria as far as whether this needs a variance. There is no hard evidence to suggest that this is in violation, unless a survey is don e. Ms. O 'Brien asked if the City should bear the cost of a survey. Ms. Carlston responded she thought they should. Ms. Shotwell stated she believes the garage was built in good faith; it is now a built structure. It appears to be a failure of guidance on the part of the City; the City should provide applicants with better guidance or go o ut before the structure is actually built. At this point it is too late . The structure was built in good faith, and they abided by th e guidance they were given . Ms. O 'Brien stated that licensed contractors are re quired to understand the Codes they are building under in a City. There is nothing to prohibit the applicant from doing a survey to guarantee the structure didn't encroach. Mr. Sprecace stated he doesn't believe the requ es t m ee ts either the first or fourth criteria. Ms. O 'Brien stated the Board can't grant a variance based on economic hardship, which mak es this case even more difficult. Chair Smith stated he also has difficulty with criteria one and four . It is not the City's responsibility to tell the applicant wher e to build it, but if it is built without a survey, th ey should have erred on the side of caution. 6 • • Ms. Carlston stated there is a garage located at 2949 South Corona that appea rs to hav e an all ey entrance and the proper setback. Ms. Carlston further stated th e difference is evid ent for safe ty reasons why the garage is setback fa rth e r. Ms. Shotwell stated it is troubling t ha t the n ei ghbor objecte d, but then didn't show up for the hearing. Chair Smith stated he agreed. Discussion ensued. With no further discussion, the secretary polled th e members' votes. Ms. Carlston stated she voted no. The requ est does not meet the intent of the zoning district regulations to secure public health, safety and we lfare. She furth er stated it does n ot meet the fourth criteria; she believes it is a se lf-imp osed difficulty. Mr. Sprecace stated he voted no. It do es n ot meet th e first and fourth c rit eria. It is a ni ce looking garage; however, the Board is c harged with gra ntin g varia n ces based on fou r cr ite ri a which this request does not meet. Ms. O'Brien stated she voted no. Th e request does not meet any of the four criteria. She believes it will permanently impair th e us e of the rear ya rd across the alley in t er ms of where they could build a fence which would make the turning radius eve n shorter. Ms. Shotwell stated she voted yes. A uniqu e physica l condi tion ex ists because the structure is alr eady built. She believes it meets the second cr ite ria. It would hav e been helpful if the person who had objected had shown up to the hearing. She does not believe ther e isn't sufficient evidence to show that it will permanently impair the use of the adjacent properties particularly since the properties are already developed. She stated the build er and property owner acted in good faith and did not intend to fall out of compliance with the zoning ordinances. Mr. Cohn stated he v oted yes, concurring with Ms. Shotwell. C hair Smith stated he voted no, concurring with Ms. Carlston, Ms. O 'Brien, and Mr. Sprecace . H e further believes it is a self-imposed hardship. AYES: NAYS: ABSTAIN: ABSENT: Cohn, Shotwell Carlston, O 'B ri en, Smith, Sprecace None Gree n The Chair announced th e motion denied by a 2-4 vote. • The Chair instructed the applicant to contact st aff for any additional or neces sary information. 7 • • • 111. APPROVAL OF E-MAIL POLL Chair Smith asked for consideration of the telephone poll conducted on April 13 , 2006 . Ms. O'Brien moved; Ms. Carlston seconded: TO RATIFY THE E-MAIL POLL CONDUCTED ON APRIL 13, 2006. AYES: NAYS: ABSTAIN: ABSENT: Carlston, Cohn, O'Brien, Shotwell, Smith, Sprecace None None Green Motion carried. The Chair announced the motion approved by a 6-0 vote. IV. STAFF ADVISOR'S CHOICE Ms. Langon introduced Brook Bell to the Board; Brook is a new Planner in Community Development. He will be working with the Board for future cases. Mr. Bell stated he is excited to be with the City and to be working with the Board . There is a case scheduled for June which is an appeal to a fence permit. The property is lo cated at 2756 South Pearl Street; the appealing property is located at 644 East Yale Place . Ms. Langon asked if at the next meeting the Board would like to discuss any changes to packet materials and staff presentations. Chair Smith stated he would like to have staff make a brief presentation to start the public hearing, which would show the subject property, the physical issues of the variance, and then discuss the section of the Ordinance which deals with the variance. The applicant can then comme nt on the merits of the case. Staff can then make additional comments following the applicant's presentation. Ms. Shotwell stated some cases are so simple. In those cases it might just be best to have the site plan or a photo on the screen and l et the app licant describe the issue. If staff disagrees for any reason, they can then make comments. Otherwise, the Board co uld end up spending a lot of time on something that is very simple. The packet contains all the material; the additional presentation could be helpful but she doesn't believe it is necessary. Ms. Carlston stated the aerial view of the property would be helpful, especially for those in the audience who don't have the packet. Chair Smith stated he foresees staff's presentation being no longer than five minutes. Mr. Bell suggested trying it for a few months. The Board agreed . 8 • • • v. CITY ATTORNEY'S CHOICE Mr. Brotzman stated there was a memo from Ms. Reid that was included in the Board's packet regarding alternate member voting. Mr. Brotzman asked if that was something the Board wished to pursue with City Council. Chair Smith stated he would like to do so; he had asked Ms. Reid to research the issue. The Board is created by Charter and it seems that it giv es City Council some latitude on whether or not an alternate can vote. It does indicate that the Board has seven members with overlapping terms. He would like permission from the other Board members to have the C ity Attorney pursue the issue with City Council on whether or not alternate members can vote on the case of an absent Board member at a meeting or in the case of a resignation until the slot is filled by Council. This would assist the Board with more present members at a meeting and it would also provide the alternate member with more experience until he /she becomes a full member. Ms . O'Brien moved; Ms. Shotwell seconded: TO ASK CITY COUNCIL TO PERMIT THE ALTERNATE MEMBER APPOINTED TO THE BOARD OF ADJUSTMENT AND APPEALS TO VOTE ON CASES IN THE CASE OF AN ABSENT BOARD MEMBER OR VACANCY. AYES: NAYS: Carlston, Cohn, O'Brien, Shotwell, Smith, Sprecace None ABSTAIN: None ABSENT: Green Motion carried. VI. BOARD MEMBER'S CHOICE The Board had nothing further. There was no further business brought before the Board. The regular meeting was declared adjo urn ed at 8:25 p .m. J /, 9