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HomeMy WebLinkAbout2006-06-14 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS June 14, 2006 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 Smith presiding. Members present: Carlston, Cohn, Green, O'Brien, Shotwell, Smith, Sprecace Hembers absent: Purdy, Alternate Member Staff present: Brook Bell, Planner Tricia Langon, Senior Planner Nancy Reid, Assistant City Attorney Chair Smith stated there were seven 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 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 appeal should be granted; proponents will be given an opportunity to speak; opponents will address the Board; and then staff will address the Board. Chair Smith stated the Board would be acting in the capacity as the Board of Appeals for the public hearing schedu led. II. CASE #VAR2006-00004 Lawrence T. and Marjorie L. Becker 2756 South Pearl Street Chair Smith declared the Public Hearing open, stating he had proof of publication. He introdu ced the case by stating it is an appeal to approve Accessory Permit #ACC2006- 00152 for a six foot fence, pursuant to Table 16-6-6 .2 : Fence Standards for Residential Districts of the Englewood Municipal Code . • • • Brook Bell , Planner, was sworn in. Mr. Bell stated he received a request from a Board member to distribute Minutes from the December 7, 2004 Planning and Zoning Commission meetings. The Minutes were distributed and entere d into the record. Mr. Bell stated the two properties involved in the case are located in north Englewood, approximately six blocks east of Broadway and one block south of Yale Avenue . The subject property is 2756 South Pearl Street; the property owner is Joy Raspanti and was the applicant for the fence permit. The appealing property is 644 East Yale Place and is owned by Lawrence and Marjorie Becker. Mr. Bell showed an aerial view of the properties; 2756 South Pearl Street fronts onto Pearl Street. Its side lot line is parallel with East Yale Place and its rear lot line abuts 644 East Yale Place which is owned by Mr. and Mrs. Becker. The front property line of 644 East Yale Place abuts Yale Place; its side property line abuts the rear property line of 2756 South Pearl Street. On May 1, Joy Raspanti applied for an accessory permit to construct a six-foot high fence along the property line facing East Yale Place, which is the side lot line as well as the rear lot line that abuts 644 East Yale Place. The application was for a six-foot cedar fence . Staff reviewed the application with respect to 16-6-6 of the Municipal Code and found that it r:1~t all the provisions of that section. Those provisions included: the sight plan requirements, sight distance triangles, fence material, and most importantly, the fence standards for residential districts. Table 16-6-6.2 allows six foot fences in the side lot lines as well as the rear lot lines of the subject property . The permit was approved on May 8. On May 4, an appeal was filed by Mr. and Mrs. Becker to appeal the decision to approve a six-foot fence where the rear lot line of the subject property abuts the first 25 feet of the side lot line of the Becker property. The appeal deals primarily with where the rear lot line of the subject property abuts the first 25 feet of the side lot line of appealing property. The appeal also involves the fence along the side lot line of the subject property. The Planning and Zoning Commission Minutes before the Board are from a meeting wherein the Commission discussed corner lot regulations in detail. Mr. Green asked if there were any recent changes to the Unified Development Code (UDC). Mr. Bell responded there have not been any revisions since Mr. Green received a copy. Chair Smith stated staff would testify later in the hearing; Mr. Bell is only giving a brief introduction and overview. Marjorie Becker, 644 East Yale Place, was sworn in. Mrs. Becker provided a brief PowerPoint presentation. Mrs. Becker thanked the Board for listening to the appeal. Mrs. Becker showed a photograph of the fence as it currently exists . A photograph showed a 42 inch tall fence which allows her and her husband to see the street, which is important to them. The six-foot fence constructed by Ms. Raspanti obstructs their view. There is a significant loss of light now that the six-foot fence has been built. 2 • • • Mrs. Becker asked how a permit could be approved when an appeal had been filed. In the December 7, 2005 Minutes, the Commission discusses fences for properties just like theirs. Mrs. Becker stated she was on Planning Commission in 1984 and discussed that very issue regarding properties with a rear yard abutting another property's front yard. At that time, it was determined that the fence should be no taller than 42 inches. The regulation, as explained by Ms. Langon, was designed to provide some sense of openness for the interior lot. Mrs. Becker stated her property is the interior lot; the sense of openness is gone now t:nt the six-foot fence has been constructed. If the people on the other side of their property want to build a six-foot fence, their property will be completed boxed in. This is one of the reasons they are asking for the fence to be reduced to 42 inches. It would provide them with a sense of openness. In the 2004 Minutes, the Commission also discusses that only 280 corner lots exist in Englewood, less than 3% of the properties. It does not say that it is 560 properties or residences that are set at odds. It is unfortunate that the Commission and Council disregarded the potential problems. She talked with Mr. Tomasso and former Mayor Bradshaw; each of them indicated to her that although Council had directed Planning Commission to review the corner lot regulations, when the issue came back to them there was no discussion about the difficulties. Both council members indicated that they were not aware of the potential problems . Chair Smith stated the Board is restricted by the Ordinance. The Board cannot overturn City Council's decisions. Mrs. Becker stated she is only providing background. Chair Smith stated her case needs to be based on where the City violated the Zoning Ordinance . Mrs. Becker stated the Board needs to determine whether or not their appeal is worthy based on her discussions with the Police Department. Chair Smith stated she doesn 't need to explain to the Board how the Ordinance is wrong, but rather why City staff was wrong in approving the fence permit based on the regulations contained in the Ordinance. Mrs. Becker stated she could not do that because she does not know why staff allowed it to go forth. Chair Smith asked for the basis of the appeal. Mrs. Becker responded that the built fence removes any opportunity for her and her husband to see the street which is a safety issue. Chair Smith asked if there is any part of the Ordinance that the fence violates. Mrs. Becker responded, "not to her knowledge." Chair Smith stated if the fence does not violate the Ordinance, it is his opinion that there is no basis for an appeal. The only reason an applicant can appeal is if City staff has done something that violates the Ordinance. City staff has determined that the fence does not violate the Ordinance; therefore, the fence can be built. Ms. O'Brien stated the Chair is asking the her to explain to the Board what provision of the Ordinance the fence violates; otherwise the Board has no basis to overturn the decision of staff. Mrs. Becker stated she understands; however, she hopes the Board hears their 3 • • • cc!icerns about the building of the fence whether or not it meets Code. She asked what rights they had as homeowners to ask for a safety issue to be resolved . Chair Smith stated that is an argument to be made to City Council. City Council passed the Ordinance as written. Mrs. Becker stated that regardless of the Board's decision, she will proceed to City Council. She does not want other people to be put in the same adversarial position. Chair Smith stated if there is no basis in the Ordinance or in any governmental statute that is violated by the fence, then the Board is powerless to overturn staff's decision. Mrs . Becker stated she is concerned about the advice she received from Community Development staff, which was she could file an appeal. Chair Smith stated anyone can file an appeal; whether or not there are grounds is a different matter. Being unhappy with the fence is not grounds for an appeal. Mrs . Becker stated she understood, but she wanted the Board to hear that the fence is a concern for her and her husband. Even though Community Development found the fence was in compliance with Code, they felt compelled to go to the next step . Mrs. Becker asked that if the Board finds the appeal not just, that no more material be added to the fence. This would provide them with a little bit of light since the fence is open slat construction. Lawrence Becker, 644 East Yale Place, was sworn in. Mr. Becker stated if he filed a permit to build such a fence for his property he would be denied; he could not build such a fence. He could only build a 42 inch fence. which is a conflict in the Code. It is discriminatory to him that he cannot build a six foot fence and his neighbor can. Ms. O'Brien confirmed that he has a large backyard and it is fenced. Mr. Becker stated that was correct. Ms. O'Brien confirmed that the backyard is completely fenced in . Mr. Becker responded that was correct. Joy Raspanti, 2756 South Pearl Street, was sworn in. Ms. Raspanti stated there is three inLhes between the slats above the 42 inches. She wanted to make sure there was light coming through for the Beckers. She did not build the fence to six feet; she also put two- by-two's in between so the Beckers would have even more light. She stated she wanted to build a "kind neighbor" fence. Ms . Raspanti continued; she has a very big dog, and she wants the dog safe and other people safe. She stated she wanted to make sure Mrs. Becker had as make light as possible for her garden. She stated from her backyard she can see the Beckers' entire yard. There is not much light that is obstructed. Ms. Raspanti stated it is a little more private for her, but it does make it safer for her dog. Her dog's head does still go over the fence. She stated she does not intend to build anymore onto the fence. She also built the fence onto her property, rather than directly on the property line . Ms. Carlston asked if the fence was complete. Ms. Raspanti responded that it is complete; she is contemplating some cosmetic touches along the front such capping it off, but if that 4 • • • is a problem with the Beckers she will leave it alone. On the Yale side, she was thinking of sliadowing it, because her dog can stick his nose out and she doesn't want that to become a problem. She will not place anything above the 4 feet. Philip Smith, Ms . Raspanti's attorney, asked her to comment on the final inspection. Ms . Raspanti stated that the final inspection was finalized today and it passed. Chair Smith noted for the record that Mr. Smith's statements were not testimony, but rather statement of counsel. Mr. Sprecace confirmed with staff that the applicant can build a six foot fence on Yale as well as the backyard. Mr. Bell stated that was correct; property owners are permitted to build a six foot fence on the rear lot line and the side lot line, except the first 25 feet. 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. Ms . O'Brien moved; Ms. Carlston seconded: THAT THE APPEAL OF THE DECISION TO APPROVE ACCESSORY PERMIT #ACC2006-01152 FOR A 6 FOOT FENCE, PURSUANT TO TABLE 16-6-6.2: FENCE STANDARDS FOR RESIDENTIAL DISTRICTS OF THE ENGLEWOOD MUNICIPAL CODE BE GRANTED . Mr. Cohn asked for clarification on the motion. Chair Smith stated the motion is that the appeal be granted. A "yes" vote would require the fence to be removed; a "no" vote supports the City's decision. Ms. Carlston stated she drove by the property and it appears that the openness of the slats makes it "a iry". She was able to see in. Chair Smith stated it does not appear the Board has much "wiggle room" in the case. He does not see any violation of the Ordinance. Mr. Cohn stated he asked for the Minutes from the Planning Commission meeting to determine their thought process. Chair Smith stated in variances the Board has criteria in which to vary the Code; in an appeal they don't'. Mr. Cohn stated the Board can hear appeals. Ms. O'Brien stated that is correct; however, there is a difference between filing an appeal and the Board having grounds to grant an appeal. The Board has to find that City staff was wrong in approving th e permit based on the Ordinance. Discussion ensued . Nancy Reid stated the Board has the power to review appeals. The Board looks at the presented facts. The Board reviews the Ordinance a nd staff's decision. Staff was either right, wrong, or partially right and partially wrong. In this case, the Board needs to 5 • • • determine, based on the Unified Development Code, whether or not staff was correct in issuing the fence permit. Any interpretation of whether or not the Planning Commission should have written that section of the Ordinance is not the Board 's issue; it is a Council issue. V\.ith no further discussion, the secretary polled the members' votes. Ms. Carlston stated she voted no . The accessory permit meets all the provisions of Section 16-6-6.2 of the UDC; therefore, there are no grounds to grant an appeal. Mr. Green, Mr. Sprecace, Ms. O 'Brien, Ms. Shotwell, Mr. Cohn, and Chair Smith stated they voted no, concurring with Ms. Carlston. AYES: NAYS: ABSTAIN: ABSENT: None Carlston, Cohn, Green, O 'Brien, Shotwell, Smith, Sprecace None None The Chair announced the motion was denied by a 0-7 vote; the decision of City staff is upheld. The Chair instructed the applicant to contact staff for any additional or necessary information. m. APPROVAL OF MINUTES Ms. O'Brien moved; Mr. Cohn seconded : TO APPROVE THE MAY 10, 2006 MINUTES. AYES: NAYS: ABSTAIN: AGSENT: Carlston, Cohn, Green, O'Brien, Shotwell, Smith, Sprecace None None None Motion carried . The Chair announced the motion approved by a 7-0 vote. IV. APPROVAL OF FINDINGS OF FACT Mr. Sprecace moved; Ms. Shotwell seconded: THE FINDINGS OF FACT IN CASE #VAR 2006-00002, 2924 SOUTH OGDEN STREET, BE APPROVED AS WRITIEN. AYES: Nl\YS: ABSTAIN: ABSENT: Carlston, Cohn, Green, O'Brien, Shotwell, Smith, Sprecace None None None 6 • • Motion carried. The Chair announced the motion approved by a 7-0 vote. V. STAFF ADVISOR'S CHOICE Mr. Bell stated there are no cases for the July meeting. The Board decided not to meet in July. Mr. Bell asked for feedback on the PowerPoint presentation/introduction. Chair Smith reminded the Board that it is not a time to ask staff questions; it is only a brief presentation. Mr. Sprecace asked if there would be photos of the property. Mr. Bell stated there were photos of the property included in the Board's packet; he didn't show those photos during the introduction. He decided to show them if the Board had questions. More information can be included if the Board wants it. Chair Smith agreed that information is appropriate laler in the meeting when the Board has questions or staff has additional information it wants to present. Ms. O'Brien stated she appreciates the minimalist approach; just give a brief overview of the photo and move on. Mr. Green asked if the photos were provided by the applicant. Mr. Bell responded that the photos were taken by staff. VI. CITY ATIORNEY'S CHOICE Ms. Reid stated the issue regarding the Board's alternate member voting is scheduled for a Council study session on July 10. Ms. Reid briefly discussed the differences between a variance and an appeal. She noted that under State statute, which the Board is obliged to follow, it does state: 1'An appeal stays all proceedings and furtherance of the action appealed unless an officer certifies to the Board of Adjustment, after the notice of appeal has been filed with him, that by reason of facts stated in the certificate, a stay would in his opinion cause imminent parallel to life and property. 11 This permit wasn't stayed, which should be watched in the future and should be discussed. VII. BOARD MEMBER'S CHOICE Mr. Cohn thanked Ms. Reid for sending out the e-mail regarding appeals. Mr. Cohn asked why Planning Commission made the decision to allow six foot fences on interior lots; it doesn't make sense to him. Ms. Langon stated she would be happy to talk to him after the meeting regarding the Planning Commission's process. Mr. Sprecace suggested the Board start meeting at 6:30 or 6:45 p.m. Chair Smith stated 6:30 is a little early for him; 7:00 would work. • Dicussion ensued. 7 • • • Mr. Sprecace moved; Mr. Cohn second: TO CHANGE THE BOARD'S MEETING TIME FROM 7:30 P.M . TO 7:00 P.M. AYES: NAYS: ABSTAIN: ABSENT: Carlston, Cohn, O'Brien, Shotwell, Smith, Sprecace Green None None Motion passed. Ms. Reid directed the recording secretary to notify Council of the change. There was no further bus in ess brought before th e Board. The regular meeting was declared adjourned at 8:25 p.m . 8