HomeMy WebLinkAbout2006-08-09 BAA MINUTES•
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BOARD OF ADJUSTMENT AND APPEALS
August 9, 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:
Members absent:
Staff present:
Cohn, Green, O'Brien, Smith , Sprecace
Carlston, Shotwell, Excused
Purdy, Alternate Member
Brook Bell, Planner
Harold Stitt, Community Development Manager
Nancy Reid, Assistant City Attorney
Chair Smith stated there were five members present; therefore, four affirmative votes are
required to grant a variance or appeal.
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 w ill 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 scheduled.
II. CASE #VAR2006-00005
Katherine Fowler
4857 South Fox Street
Chair Smith declared the Public Hearing open, stating he had proof of publication . He
introduced the case by stating it is an appeal to the decision of the Community
Development Director to prohibit the continued use of a second dwelling unit in an R-1 -A
zone district based on the lapsing of conditions attached to Variance Case #51-79.
Brook Bell , Planner, was sworn in. Mr. Bell provided a brief PowerPoint presentation
showing an overview of the property. The property is located at 4857 South Fox Street
which is located in the southern portion of Englewood. It is located between Layton and
Chenango. The property is 7 5 feet wide and approximately 148 feet deep. It is zoned R 1 A,
single-unit residential. A single dwelling exists on the front of the property which is
approximately 880 square feet; towards the rear of the property is an additional unit which
is approximately 530 square feet. The block does not have an alley. The appeal is to the
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Director's decision not to allow. the continued use of the rear unit as a second dwelling
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Mr. Bell showed a photograph of the main house from the street, and another photograph
showing the rear unit which is addressed as 4857 1/i South Fox.
Harvey Curtis, 8310 South Valley Highway, Suite 230, was sworn in. Mr. Curtis stated he
discussed the protocol with Ms. Reid. He submitted exhibits to the Board. He stated he
will be soliciting testimony from Ms. Fowler.
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When did you purchase the property?
September 1998.
Where you aware of any use limitations on the property at that time?
No.
Did you prepare an application for this appeal and file it with the City?
Yes .
In Exhibit 1 you set forth a chronology of the events preceding and
surrounding the purchase of your property and until the appeal. Is that
correct?
Yes.
Did you examine the variance for the property when you purchased it in
1985?
No; I was not aware of a variance.
Were you aware as _to whether or not the City claimed the variance had
lapsed in 1985 when the property was transferred to Marian Snyder and
Susan Alcock?
I never knew about the variance lapsing in 1985.
Is the Deed for that transfer Exhibit 4?
Yes; that is the Deed.
When you look at Exhibit 4, is there any mention of the variance in that Deed
between Marian Snyder and Susan Alcock?
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No, there is no mention of it.
With regard to Mrs. Snyder, are you aware that she passed away?
Yes.
With regard to Exhibit 5, is that the death certificate of Mrs. Snyder?
Yes.
Does it state the date of her death?
Yes, she died November 16, 1997.
When was the death certificate recorded?
February 6, 1998.
Are you aware of whether the City claimed the variance had lap sed upon the
death of Marian Snyder?
No, I wasn't aware of that.
Has the City ever informed you that the variance lapsed when you acquired
the property in 1998?
There was never any mention of a variance.
Did you buy the property based upon two useable residential units on the
property?
Yes I did .
Was that an important factor in your decision to purchase the property?
It was one of the main reasons I bought the property. It had two separate
structures.
How did you plan to utilize the two structures?
I used it as short-term rental and used it as part of my living space .
Did you borrow money to purchase the property in 1998?
Yes .
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Did you borrow approximately $123,000?
Yes .
Was that loan granted based on two residences on the property?
Yes it was.
Was the property appraised at that time for the loan based on two
residences?
Yes.
Have you used the second house as a guest house and short-term rental
since 1998?
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Did you refinance the property on June 6, 2003?
Yes .
At that time, did you borrow $12 7,000?
Yes .
Is Exhibit 7 the Deed of Trust for the property when you refinanced it in
2003?
Yes that is the Deed.
Was that loan based on an appraisal for two residential units on the property?
Yes, it was all based on two separate units.
Is this loan still on the property?
Yes .
If only one residence is allowed to continue on the property, how will that
affect the collateral you have for this loan?
It makes it that the house is not worth nearly as much as I borrowed on it.
will loose all the collateral that I have .
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I understand. Did the City allow Susan Alcock to register the guest house on
the property as a nonconforming use prior to your purchase?
Yes, it has been registered nonconforming by Susan Alcock from 1985 until I
bought it in 1998.
Since 1998, has the City sent you notices each year beginning in 1998?
Yes, when I bought the house I got the notice; changed the formal
ownership; and every year mailed back the registration.
Looking at Exhibit 6, is this the first notice you received from the City and is it
dated August 1, 1998?
Yes, this is the letter that was with the house when I bought. It was with the
registration that told me to change the name and to send the form in. Every
year after that I got another letter to send in the form to register it as
nonconforming. ·
And you sent it in every year?
I sent it in every year.
Does the second page of Exhibit 6 include the Ordinance requirements?
Yes, if I didn't send it in I would lose the nonconforming status .
You sent it in so you would keep that status. Is that correct?
Yes.
Have you sent it in every year since?
Yes.
Looking at Exhibit 8, is this the most recent letter you received from the City?
Yes, this is the one I got last fall.
Is there a date on that?
October 14, 2005.
Does it include the same paragraph that was on Exhibit 6 regarding the
registration?
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Yes on the bottom that I have to send it in or I will lose my status.
Attached to that is a copy of the nonconforming use registration that you
sent in.
That is the form that I send in every year.
Is it stamped received by the City?
Yes, on September 12, 2005.
On the last page of Exhibit 8 is there a note from the City's file?
Yes , this was faxed to my realtor when this question came up . It indicates
that the property was registered last year and was stays registered until
the next letter came out.
Have you relied on these registrations every year?
Yes I have.
In what way have you relied on it?
The value of my home is based on being able to continue to have it as a
nonconforming status. I have relied on the fact that they have been sent to
me to tell me that the house was nonconforming as two separate structures.
Based on that, that is how I got the loan for the house .
If one of the units is lost, will that endanger you of foreclosure of your loan?
Yes , it loses one-third of the living space and one of the bedrooms. The
house would no longer have three bedrooms; it would be two. It would be a
third less living area.
Have you paid taxes on the property?
Yes.
For every year since 1998?
Yes I have.
Is that based on two residential units?
Yes.
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Looking at Exhibit
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record as of July 2006?
Yes it is.
Does it list Building 1 on page one?
There is Building 1 on page one and the second structure, Building 2 on
page two.
On the last page, is the valuation based on both structures?
Yes.
As residential units?
Yes , two separate units .
Building one is listed as sin gle famil y residential and Building 2 is listed as
single family residential.
Yes .
You bought the house based on two single family residential?
Yes.
And y ou borrowed money on the house based on two single family
residential.
Yes .
And you paid taxes based on two famil y residential.
Yes.
Would you say you were blindsided by this recent decision?
Yes , and I wasn 't informed of it until after I had a buyer when I tried to sell
the house .
You had a contract?
I had a contract; we negotiated; and we were in the final stages . All of this
was within two weeks of getting the house on the market.
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Looking at Exhibit' 9, is that the contract you had?
Yes
Is that dated May 20, 2006 on page one?
Yes, May 20.
What is the price you agreed upon?
$224,750.
What is the price you think you would get if you didn 't have the second
residential unit?
Significantly less . It would probably be less than what I owe on the house .
Is this your retirement?
Yes, this is everything that I have worked for.
In your opinion, is the property unsellable?
Yes, I can 't get a contract on it. With the market the way it is , I can 't sell this
house unless it is a two structure like the way I bought it.
At this time, Mr. Curtis entered into record two neighbors' statements.
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Did you discuss this hearing/appeal with your neighbors?
Yes, I have.
Who are Kevin and Stacy?
Kevin and Stacy live just to the south of where I live.
They gave you a consent which is Exhibit 11 dated July 23, 2006.
Yes , I stopped by and talked to them. They were fine with it staying the way
it has always been.
The second page of that exhibit is a consent by another neighbor.
That is Eric Bilger, and he lives at 4853 on the north side. He had no
objection either.
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And he gave you his consent?
Yes, this evening. We had discussed it earlier and he forgot to mail it.
His consent is dated August 9, 2006?
Yes.
Are you asking this Board to allow the nonconforming use to continue?
Yes. This is how the house has been since; this is how it was when I bought
it. I was never told about a variance; I was told by everyone in registering the
property that it was two separate units, nonconforming. Everything I have is
tied up in this house.
Are you willing to continue the annual registration?
As long as you register annually, it should be continued as two separate
structures.
And this is by you and anyone that buys the property?
Yes , this house has been there since the SO's. This is how it has always been;
there have been no structural changes to it.
Both houses have been there since the SO's.
Yes.
To your knowledge, the City never claimed a lapse based on the 1985 sale?
They have never said a thing about it.
They never claimed lapsed based on Mrs. Snyder's death in 1997?
Never.
They never claimed it lapsed based on the sale to you in 1998?
Nope. Every year I send in the registration.
When did they claim a lapse?
In May when the realtors called to verify and to do the due diligence, they
were told it was two separate structures, nonconforming. It was not until the
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end of May, whicb was when they received the fax from Brook saying it was
' two separate structures, after we had gone through all the negotiations that
she was made aware of any variance.
Where you ever given a ruling in writing?
No.
You are asking the Board to allow the two houses to continue as single family
residences?
Yes.
To your knowledge, no one has appeared to oppose this?
There have never been any complaints about the house; there have never
been any problems with it being two separate structures on this property.
Do you have anything to add?
No .
Thank you Ms. Fowler
Mr. Curtis stated he had some arguments he wished to make as to why the variance should
be allowed to continue without lapsing. This is an appeal by Katherine Fowler regarding
her property.
Chair Smith stated for the record that there is no one else in the audience, except the City
staff. He presumed no one wished to speak against the position of the applicant. To that
extent, Mr. Curtis can make whatever statements he wants either now or after the City
presents their case. Mr. Curtis asked for the protocol. Chair Smith stated typically the
hearing follows similar to a trial. The applicant presents, followed by City staff, and then the
applicant can rebut.
Chair Smith asked the City to present its case. Mr. Bell stated there were some errors made
in terms of full disclosure by the previous property owner, perhaps by the title company,
and the City. Last May when the Community Development Director received knowledge
of the expired variance, he made a decision to enforce the conditions of the variance and
not to allow the continued use of the second dwelling unit. The Director does not have the
authority to overturn or ignore the previous 1979 Board of Adjustment's decision;
therefore, he made the decision to enforce the variance and its expiration. The property
owner was given some other compliance options and those are detailed in the staff report.
Chair Smith instructed Mr. Curtis that he may continue with his argument if he wished, but
at some point the Board will have an opportunity to question Ms. Fowler. Mr. Curtis stated
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he would prefer to wait until the Board is finished . Chair Smith asked if the Board had any
questions for Ms. Fowler. 1
Mr. Cohn asked to see the aerial photograph of the neighborhood. Mr. Cohn asked if
there were other nonconforming uses in the neighborhood that had two structures on their
lots. Mr. Bell responded that he wasn 't sure if that is the case or not; he doesn't have that
knowledge either way. Chair Smith stated there are certainly some accessory structures.
When he drove through the neighborhood, it appeared that they were sheds.
Mr. Green asked for clarification on Exhibit 2. Chair Smith stated that document is what the
City records to base the variance of record on the property records at the County. Mr.
Green clarified that it was not given to Ms. Fowler when she purchased the property; it
references the 1979 document that states the variance is only for the current owner. Ms.
Fowler stated she received the document in July when she met with Mr. Bell to determine
what she needed to do to get the zoning corrected. She found out May and in July she
learned about the appeal process. She met with Mr . Bell to find out what she needed to fill
out and that is when he gave her the chronology of the ownership of what happened to the
land. That is the first time to saw the variance and some of the documents.
Mr. Cohn clarified that during the time she owned the house she has used it for short-term
rental and for extra living space. He asked if she has relied on the income from the extra
space to help pay the mortgage. Ms. Fowler responded no; short-term rentals were people
that she knew that stayed with her -guests, people that she worked with, etc. She paid
the mortgage through her employment. There was in c ome from the second unit, but she
didn't rely on that income to pay the mortgage.
Chair Smith asked how long the unit has not been used as a rental unit. Ms . Fowler stated
she has not used it as solid rental property since she bought it in 1998. Prior to her owning
it, she is not sure when Susan Alcock rented it; it is her understanding from talking to the
neighbors and from talking to Susan when she bought it was that she rented it fairl y
consistently while she owned it through the 1980's. In the 8 years that she has owned the
house, she has had people tell her that they have lived there or that their friends have
rented it and asked whether she wanted a renter. Chair Smith stated his point is that it has
not been used as a rental property. Ms. Fowler stated that is correct.
Ms . O 'Brien asked if she ever received a stop order from the City. Ms. Fowler responded
that she didn 't know what that was and that she had not. Ms. O 'Brien clarified ; did she
ever receive anything from the City telling her not to use the second structure as a rental.
Ms. Fowler responded no.
Mr . Green asked whether or not it was the title company's responsibility to identify
variances. Chair Smith stated that are what courts are for. Ms. Fowler stated she never
heard of this variance until the end of May; she never knew it existed; she never knew to
look for the variance .
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Ms . O 'Brien asked if it was her .position that the City had some sort of a duty to tell her
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about the existence of the variance; and if so, when did that duty come into play? Ms.
Fowler stated she spoke with Tricia Langon regarding that in May when she learned of the
variance. Ms. Langon told her when she sent in the registration the first year she owned
the property in 1998 and marked "new owner", the City should have sent her a different
form on the registration . The department made a mistake in continuing to send her the
registration form. Ms. O'Brien clarified that at that time she had already purchased the
home. Ms. Fowler stated that at that time, she had already lived in the home for 8 years.
This conversation took place in May 2006. Ms . O'Brien stated that Ms . Langon indicated
that the City should have told her in 1998 when she returned the registration form. Ms.
Fowler stated that was correct. Ms. O'Brien further clarified that the variance didn't come
up when she purchased the house, but it did when she tried to sell the house. Ms. Fowler
responded that was also correct.
Mr. Green asked if at the time she purchased the property whether she was aware the
property was zoned single family. Ms. Fowler stated she didn 't think about it. Mr. Green
asked what was the main proof to her that made her comfortable thinking it was two
separate houses. Ms. Fowler stated it was that it had two separate houses; it has two
separate addresses; it has two electric meters; and all the paperwork she received indicates
two separate units.
Chair Smith asked if she received a title policy when she purchased the property and did
she read it. Ms. Fowler stated she believed she did. Chair Smith asked if it mentioned the
variance. Ms . Fowler stated she didn't see it. Chair Smith clarified that it is not an
exception on the title policy. Ms. Fowler stated she is not aware of it. Chair Smith stated if
it is not there, you could look to the title policy for damages . Ms. Fowler stated she
probably could. Her concern is when she talked to Ms. Langon she was told that the City
made a mistake in the zoning and the issue came up when she tried to sell the house .
Chair Smith stated he doesn't see a restriction on the Deed of Trust that the second unit
must be a rental unit. He asked if there is something that will revoke the mortgage if the
appeal is not granted . Ms . Fowler stated she didn't understand. Chair Smith asked if the
loan would be called if the appeal wasn 't granted. Ms. Fowler stated she didn 't know.
Chair Smith asked if she knew of any specific provision in the Deed of Trust which states
the unit must be a rental. Ms . Fowler stated she did not. Chair Smith stated he noticed that
when she took position of the property it was by a Quit Claim Deed. He asked if she
understood what that means. Mr. Curtis stated that is the Deed from the Snyders to Marian
Snyder and Susan Alcock.
Mr. Green asked for clarification; when she received the first nonconforming registration
form did it look like the form submitted in the exhibits where she had to check new owner.
If so, he asked if she completed the form as a new owner. Ms. Fowler stated she did
complete the form and checked it as a new owner. Mr. Green confirmed that she informed
the City that she was the new owner of the property. Ms. Fowler stated that was correct.
Mr. Green asked staff if there was a copy of that form. Chair Smith stated the City has
presented its case.
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Chair Smith stated the form states it is used as two separate units. According to her
testimony, the second unit was not used as a separate unit; it was used as an adjunct to
her living space, seldom rented, and used as an extra bedroom for guests or temporary
transient people for her purposes. Ms. Fowler stated she used it as living space. When she
spoke to City staff as to what options she had now, they told her that it was a non-
inhabitable space and could be used as a storage unit. She used it as two separate units in
which she lived. From what the City was telling her, she cannot use it as a bedroom; she
can use it as a storage room. Chair Smith stated the Board 's concern is whether or not to
allow her to have a "mother-in-law" apartment; a separate unit that can be rented and have
habitable, 12-months, 365 days, 24/7 because that is what the original variance was.
Mr. Curtis stated this is an appeal by Katherine Fowler regarding her property at two
addresses, 485 7 South Fox and 485 7 1/2 South Fox Street to a determination which is not in
writing but was by the Community Development Director that a second dwelling unit,
which has existed since prior to 1952, can no longer be used as a second dwelling unit. As
pointed out by Ms. Fowler's testimony, the following are the facts:
1. She bought the property in 1998 and · was not aware of any use limitations on
occupying the two residences on the property. Her chronology regarding is in
Exhibit 1.
2. To her knowledge, and nothing has been shown to the contrary, the City never
claimed that the variance lapsed in 1985 when the property was deeded to Marian
Snyder and her daughter, Susan Alcock. That 1985 Deed is Exhibit 4 .
3. Further, the City never claimed the variance lapsed upon the death of Marian Snyder
on November 16, 1997. The Death Certificate was recorded in Arapahoe County
on February 6, 1998 and is Exhibit 5.
4. When Ms. Fowler first registered the property in 1998, the City never informed her
that the variance had lapsed. She bought the property based on two useable
residential units on the property.
5 . She used the second unit for her own living space, as a short-term rental, and also as
a guest house. It has always been used as a residential unit.
6 . She borrowed money based on the usability of the second unit in 1998 in the
amount of $123,000.
7. The property was appraised for a loan upon that amount and based on two
residences.
8. She refinanced the property in 2003, again relying upon the usability of the second
unit and the appraisal of both residential units on the property. That loan document
is Exhibit 7.
9. To her knowledge, the City allowed Susan Alcock to register the "mother-in-law"
house or guest house as a non-conforming use from 1985 to 1998.
10. After Ms . Fowler purchased the property in 1998, she again registered the property
and gave notice that she was the new owner in 1998. She has continued to do that
every year since 1998, including 2005 which is Exhibit 8 .
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11 . The present loan amount relies upon the two residential units. Limiting the use to
one residential until wi(I impair the collateral for the loan and may precipitate
foreclosure.
12. Ms. Fowler has paid taxes since 1998 based on the two residential units on the
property as shown by the Assessor 's records which is Exhibit 10. The Assessor bases
the taxes on two residential units on the property.
13. She was scheduled to close on the property on June 11 but the determination by
the Community Development Director caused the buyer to back out of the sale.
That contract is Exhibit 9.
14. The property is her main financial holding, and she is very emotionally involved in
the loss that is happening to her as a result of the ruling by the Community
Development Director.
15. Her neighbors have consented and have no objection to the variance continuing in
the future.
16. Her proposal would be that the annual registration continue as it has as long as the
annual registrations occur.
17. The fact that there was non-enforcement upon Mrs. Snyder 's death in 198 7 and in
1998 upon the sale, there is some evidence that there was a waiver of the City's
right to discontinue the variance . ·
18. She is asking that y ou allow the two houses to exist as they both have since 195 2.
19. The August 2, 2006 memo with the history of the property by Mr. Bell indicates that
the smaller house existed in 1948, which is prior to annexation of the property into
the City in 1952.
20 . At the time of annexation, the second and larger house was partially built and was
completed after annexation .
2 1. The memo shows that no zoning was established for this property until 1955, which
was three years after both houses had been completed when it was zoned R 1 B.
22 . According to Mr. Bell , the property was first zoned R 1 A in 1966 which was 14 years
after those houses existed.
23. Mr. Bell 's summary shows that in 1979 the variance was granted to allow the
continued use of the existing house on the rear property as a dwelling unit. The
approval stated the variance will run with the existing applicants and not with the
land . The variance will be registered so there will be an annual certification of the
nonconforming use . The Building Department will record the variance with the
County Clerk and Recorder.
24. As shown by Mr. Bell 's memorandum, the registration, which is Exhibit 2, was
recorded on June 27, 1980.
25 . A Board of Adjustment action memo was recorded three years later in 1983 which
is Exhibit 3.
26. When the property was transferred to Marian Snyder and Susan Alcock in 1985, the
City did not determine the variance had lapsed. It can only be assumed that the
nonconforming use certificate indicated the new ownership and no determination
was made that it lapsed .
27. Similarly, upon the death of Marian Snyder in 1997, the City did not determine the
variance had lapsed .
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28. When the property was conveyed to Ms. Fowler, in 1998 and the notice filed, the
City did not determine the variance had lapsed.
29. Both Ms. Fowler and Mrs. Alcock relied on the variance to utilize the second house
as a dwelling unit which has not caused anyone harm for 50 years.
30. Only in June of 2006 did this matter come to a new turning point when the
Community Development Director determined that the variance had lapsed at some
undetermined point in time.
We believe it is inequitable and unfair that the variance has been determined to have
lapsed this late and this many years later. We ask that the Director's decision be modified
to state that the variance has not lapsed but that the annual registration has been filed each
year and in the future to continue the variance for this nonconforming use as said
registrations have been filed in the past. The neighbors have consented to the continuation
of the variance. It is right and equitable that it continue. The facts show that this dwelling
unit, the one under attack, has existed, for almost 60 years. The two houses have existed
on the property for over 50 years.
Mr. Curtis stated that he looked for some legal authority to allow the Board to grant Ms.
Fowler's request. The Court of Appeals determined in the Town of Lyons v. Bashor, 867
P.2d 159 (Colo. App. 1993), that the right to continue a nonconforming use, once
established and not abandoned, is not confined to any individual or corporation. This case,
which is Colorado law, cites the American Law of Zoning for the proposition that:
"The right to continue a nonconforming us e does not depend upon ownership or
tenancy of the land on which the use is situated. The right attaches to the land itself
It is not personal to the c urr e nt owner or tenant Accordingly, a c hange in the
ownership or tenancy of a nonconforming business or str ucture does not affect the
right to continue the nonconforming use. 11
The Court of Appeals concluded that:
"The m e re transfer of the land neither terminates the right to continu e the
nonc onforming use nor constitutes an unlawful extension of the use."
Perhaps this rule of law explains why the City has never determined the variance lapsed
upon the sale of the property in 1985 or since. The original condition in the 1979 variance
limiting the nonconforming use to the owners would have been unacceptable under Lyons
v. Bashor because the Court determined the law does not tie the nonconforming use to any
particular owner. The City could not limit the variance to the land owner, and the City did
not because it continued to register it as a nonconforming use after the 1985 transfer after
Mrs. Snyder's death and after the 1998 sale to Ms. Fowler.
Another case the Board can use to determine the variance has not lapsed and can continue
as long as the annual registration occurs can be found in the case of Kohn v. City of
Boulder, 919 P.2d 822 (Colo. App. 1995). In that case the court found that the doctrine of
equitable estoppel can be applied against a municipality whenever necessary to prevent
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• manifest injustice. We believe manifest injustice is occurring to Ms. Fowler in this case .
That doctrine, the Court determined, can bar:
11
••• a municipality from refusing to satisfy an obligation by taking a position contrary
to the previous representation reasonably re lied upon by the party dealing with th e
city to the party's d e trim e nt."
That representation in this case can be the fact that the annual registration was sent to Ms.
Fowler and her reliance has been to continue to own the property, to borrow money on
the property, and to have appreciation of the property until recently when she realized
depreciation of the property.
The facts show the City properly and annually sent Ms. Fowler notices of the renewal of the
registration of the variance, and notices were sent to Ms. Alcock prior to 1998. The
evidence shows that Ms. Fowler submitted those registrations every year. Accordingly, we
think Ms. Fowler reasonably relied upon the prior acts of the City allowing a second
dwelling on the property when she purchased the property, when she financed the
purchase, when she refinanced the purchase using the property as collateral, and when she
occupied the property in 1998 and continued tc:i occupy the property.
It has been suggested she might have had a claim in 1998 against the title company or
against the previous owner because of this variance; however, the facts show this was not
• an issue until 2006 when this last sale was brought before the City.
•
We believe it is unjust, inequitable, and unfair that the City can now lapse the
nonconforming use. We urge the Board to allow the nonconforming use to continue as it
has in the past as long as the annual registrations are submitted.
Chair Smith asked if the City had anything further . Mr. Bell stated he had nothing further.
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;
Mr. Sprecace seconded: THE BOARD UPHOLD THE DIRECTOR 'S DECISION .
Chair Smith stated he is not too impressed by City staff because he does not have the
Director's decision. He has some word of mouth that Ms. Fowler cannot use the dwelling
unit anymore, but she can use it for one of three things. He suggested that the Board
ignore the second part of that because he doesn 't believe it is part of the decision. He
believes the Director's decision was the nonconforming use, i.e. a separate dwelling, is the
limit of what the Board should be dealing with. The staff report indicates the applicant has
three options of what to do with the property. Chair Smith stated he doesn 't believe those
options are part of the Director's decision that the Board is reviewing. The only part of
the decision the Board should review or can review at this point is the determination that it
cannot be used as a separate dwelling unit. Whether it can be used as a bedroom or
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whether it can be used to sleep. in occasionally or to have a barbeque, he doesn 't know,
' but he doesn't believe the Board should get into what it can be used for. Unless there is a
more detailed decision from the Director as to the use, he doesn't think the Board should
"go there." He believes the motion should be limited, and would suggest a change, to a
determination that the second unit cannot be used as a dwelling unit, which would uphold
the Director's decision .
Mr. Cohn asked for clarification on a "no" vote. Chair Smith stated a "no" vote would
return the case to City staff and they decide what they are going to do with it. The Board
cannot grant a use variance. Mr. Cohn stated that in 1952 the Board granted a variance.
Chair Smith stated that is correct; they granted a use variance, which at the time they had
the power to do. This current Board does not have the power to grant a use variance. That
power was taken away in the Unified Development Code (UDC).
Mr. Sprecace clarified that the current Board cannot undo the current variance. Chair
Smith stated the Board cannot grant the same variance that was granted in 1952, because
the Board can no longer hear and/or grant use variances. If someone wants to use their
home as a beauty pallor, they cannot because it would be a use variance. There is no
mechanism within the City for citizens to appeal to, which may be good, bad, or indifferent.
It is an authority City Council has removed from the Board. All the Board can do is
determine what the Director did; it throws them into a terrible quandary if the Board
determines the Director was wrong because he doesn't know what staff would do .
Ms. Reid asked for clarification as to whether Chair Smith was making a friendly
amendment to Mr . Cohn's motion . Chair Smith stated he wasn 't sure it was an
amendment, but rather a clarification of what the decision is the Board is voting on. He
stated he will leave to Ms. Reid as legal counsel if it is an amendment.
Mr . Green stated he didn 't understand the motion. Ms. Reid asked the other Board
members if they agreed with the Chair's assessment. Chair Smith asked that the motion be
clarified; he suggested that the motion be to uphold the decision of the Community
Development Director that the second unit cannot be used as a separate dwelling unit.
Ms. O'Brien stated that was the request. Chair Smith stated the request is the continued
use based on the lapsing of conditions related to Variance Case #51-79. He does not want
to go back to the other previous variance because the Board cannot do that.
Chair Smith asked if that was reasonable. Mr. Cohn stated he didn't think it was reasonable.
Ms. Reid asked if it was the motion or the whole thing. Mr. Cohn responded, "the whole
thing." Ms. Reid suggested working on the motion, and then make arguments why it
should go for or against. Ms. Reid asked Mr . Smith if he was making an amendment to the
motion. Mr. Smith stated he would put forth a friendly amendment that the motion be to
approve the decision of the Community Development Director that the second unit cannot
be used as a separate dwelling unit. Ms. Reid asked Messrs. Cohn and Sprecace if they
accepted the friendly amendment. Both gentlemen agreed to the amendment. Ms. Reid
restated the motion:
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THAT THE BOARD UPHOLD THE DIRECTOR'S DECISION THAT THE SECOND
UNIT CANNOT BE USED AS A SEPARATE DWELLING UNIT .
Chair Smith stated he is attempting to exclude the Board from determining what the
applicant can use it for. He does not necessarily agree with the three options the City
proposed. It is not necessarily the Board's job anyway.
Mr . Green asked the Chair if he felt that was the best the Board can do. Based on the
Board's current power, can it allow the applicant to continue to use the property as two
units? Chair Smith responded he is not sure they can . Mr. Cohn stated he believes the
Board can grant the variance; the Board has had that power for 50 years. In 2004 when
the UDC was adopted that power was removed.
Ms. O'Brien asked Mr. Cohn if the City Attorney has the power to overturn a decision by
the Board . Mr. Cohn stated he does not. She asked if City Council has the power to
overturn a decision by the Board . He stated he didn't know. Ms . O'Brien asked if he knew
who had that power. He responded that he did not. Mr. Sprecace stated district court.
Ms . O 'Brien stated that what would happen is that people would appeal the Board to
district court. What he is proposing is that the Board do something that it knows it doesn 't
have the power to do and see if anybody wants to dispute it.
Chair Smith stated that is not the motion on the table, and he would not encourage that
since it would put City staff in an impossible position. They will have enough trouble if the
Board votes the motion down as it is. Doing something the Board doesn't have the power
to do will get the Board appealed by someone. His thoughts on the motion are that it was
a variance; the variance lapsed on its own terms. Had it been a nonconforming use it
lapsed because it was not used as the nonconforming use anymore. It wasn't used as a
rental unit for the entire time. In spite of the letters signed that nothing had changed -the
ownership hasn 't changed, this hasn 't changed -in fact it did change; the use changed . It
was no longer used as a rental unit. He is not accusing Ms. Fowler or her predecessors of
trying to lie to the City, but on the other hand , there was a change of use . That change of
use would have terminated the nonconforming use. The variance terminated by itself and
by its own terms . He agrees that variances typically run with the land and not with the
people, but this one is very specific and runs with the people.
Mr. Cohn asked Chair Smith if he had an opinion on the Lyons case cited by Mr. Curtis
wherein the court decided the variance could not be restricted to the person. Chair Smith
stated the case does not say it "could not"; it says they typically "are not." Chair Smith
stated that is correct; they are not and the Board does it on very rare occasions given
variances that have been restricted to a specific owner.
Mr. Green stated in the 19 79 case it was for the same reason. They bought the house
without the knowledge that it wasn 't allowed to be two units .
Chair Smith asked the Board if they felt the City should be estopped. Mr. Cohn stated he
believes Ms . Fowler relied on a "whole long string" of information from the City. The
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property has been bought and sold as two units even with the 1952 variance. It has been
<
used that way for 50 years. He is surprised that the title company in 1985 did not discover
it. Chair Smith stated the Board does not know that; the title policy is not in evidence. The
Board does not know whether or not the variance is on the title policy; it could well be.
Mr. Cohn stated that as a citizen, not an attorney, he will concede the point. He is looking
at it from the view point of a citizen; he doesn 't spend a lot of time looking for small pieces
of evidence to build a case. He is looking at a fairness issue ; it seems as if Ms. Fowler relied
on a stream of information for the last eight years , and he will vote no on the motion.
Chair Smith pointed out that what Mr. Cohn calls a "stream of information " is an annual
registration policy. No one in the City told the applicant anything over all those years.
When it finally came to the City's attention, at that point she was informed that it couldn 't
be used that way . The passive sending of a card once a year does not seem to him to be a
solid affirmance of the city that the applicant could keep using the property as two units.
To him it is just sending a notice. Mr. Cohn stated that as a citizen if he receives a notice in
the mail that tells him to "send the card in or else ", he sends the card in because he is not
that inquisitive. He relies on it and believes he can keep the property as a rental if he sends
the card in . By sending the card back, he is doing'what is required to keep the place as a
rental.
Ms. O 'Brien stated the key to her is not when the husband dropped off the deed; that is not
persuasive. It is not persuasive when the wife died because the City is not expected to pull
death certificates. If there were a triggering event, it would be the one annual registration
return that was the first one after the sale where Ms. Fowler is indicating she is a new
owner. Mr. Green stated he would like to see a copy of that. Ms. O 'Brien stated the Board
doesn 't have it from either the applicant or the City. Every other time there is no change in
ownership because she was the owner.
Mr. Cohn stated this is a house with a mother-in-law place in the ba c kyard which is a
possible extra income stream which was one of the attractions to the property. Chair Smith
stated that should have put her on notice to inquire as to whether y ou can use it; that is
pretty unusual. Mr. Cohn stated the realtors do the due diligence and come back to her
and tell her since 1955 people have used it as two residences. Ms. O'Brien stated it
doesn 't appear the realtors did the right due diligence. Mr. Cohn stated he doesn 't know,
but someone didn 't. Ms. O 'Brien stated the variance showed up this time around, and she
has no reason to doubt the applicant that it didn 't show up the previous time. It indicates
to her that someone didn 't do enough research and that isn't the City. The only evidence
the Board has is the applicant testifying she sent in the card indicating a change in
ownership. Assuming that to be true, which she has no reason to doubt, the City didn 't
pick that up. It all comes apart when everybody asks questions for the next sale , because
the realtors didn 't do their proper due diligence. The Board doesn 't know what the title
policy has on it. The Chair is absolutely right. The y should have found the variance.
Mr. Green clarified that it doesn 't matter about the registration card because it is post her
opportunity for due diligence when she bought it. Ms. O 'Brien stated it is problematic for
her. Ms. O 'Brien stated the applicant relied on the title company. Ms. O 'Brien stated for
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her it comes down to Kohn v. ·City of Boulder, and should the doctrine of equitable
(
estoppel be applied against the City to a void a manifest of injustice.
Mr. Cohn asked for a definition of equitable estoppel and how it applies in the current case.
Chair Smith stated equitable estoppel is an old term used to enforce a contract that did not
exist. If you promise someone y ou would do something and that person went out, and
based on that promise bought a house, and you then denied you had made that promise
the Court is going say y ou can't deny the promise because in fact y ou made that promise.
The Court will then make a contract between the two parties so you have to do what you
promised to do. It ty pically doesn't apply to governments for a lot of reasons because it
imposes obligations on taxpayers that are unknown. Cities, lik e other bodies, can only act
through their agents. Cities are even more restrictive because they have to have City
Councils . You don't want to have the dog catcher or the police officer committing the city
to pay ing money by some fashion outside the knowledge of Council. In a nutshell that is
equitable estoppel.
Ms . Reid stated she a g rees; she note d that there is an Ordinan c e referring to mistakes by
City staff. Ms . O 'Brien stated it is 16-10-1 :B Stop Order under Enforcement and Penalties .
It states :
"No oversight or d er eliction or error on th e part of the City or any employee o f City
shall l egaliz e, authorize, or exc use th e violation of any of th e provision s of this Titl e."
Ms . O 'Brien stated "this Title " is the Unified Development Code. Mr . Green clarified that it
puts the responsibility back on the person . Mr. Sprecace stated the UDC was passed in
2004, and this all occurre d before then . Mr . Cohn stated the rules changed after Ms .
Fowler purchased the property. Chair Smith stated the only rule that changed was the
Board cannot grant a use variance, and the variance had already lapsed by 2004.
Ms. O 'Brien clarified Chair Smith's point that the applicant hadn 't used the second unit as a
rental. Chair Smith stated that was correct; if it was a nonconforming use that wasn 't used
as the nonconforming use and if you stop a nonconforming use, you cannot revive it. If
she was rel y ing on the variance, the variance died whenever the original grantees of the
variance passed away. The section of the Ordinance quoted by Ms. O 'Brien is a
restatement of general common law principals of equitable estoppel.
Mr. Green needed clarification as to what happens if he votes "no" on the motion . Chair
Smith stated he didn 't know; the Community Development Director will have to make
some decision as to what to do with the property. Ms. Reid stated it cannot be used as a
separate dwelling unit. The motion is to uphold the Director's decision that the second unit
cannot be used as a separate dwelling unit. Ms . O 'Brien stated that a "no" vote would be
that the unit could be used as a second unit. Chair Smith stated that motion would fail with
a "no" vote. Ms. Reid stated that would indicate what it could be used for. Ms. O 'Brien
stated that is correct. Mr . Green stated that is what he is asking; what would a "no " vote
do . Ms. Reid states the Bo a rd has the authority under 16-2 -1, in deciding on appeals :
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"The Board may reverse.,· affirm, wholly or partly, or modify any notice, order,
requirement decision, or determination ... and to make such order, requirement,
decision or determination as in its opinion ought to be made and ... shall have all the
powers of the enforcing agent."
This means that the Board can also remand it back to the Director. Mr. Green asked Ms.
Reid if she agrees with everything that has been said regarding the Board not having the
power to continue the variance. Ms. Reid stated her opinion is in the record in a memo
she wrote to Community Development. Mr. Green stated he did read that. Ms. Reid
stated the use variance was removed from the Board's power in the recodification of the
UDC. Mr. Green asked if Ms. Reid could give an opinion on any other options the Board
might have. Ms. Reid stated she could not.
Ms. O'Brien stated the idea of continuing the annual registration notice makes no sense to
her. The point of that was to learn when there was a change in ownership. Chair Smith
stated that didn't have anything to do with the variance and got lost in the wrong file.
Mr. Cohn clarified; a "yes" vote supports the Director's decision ; and a "no" vote sends the
case back to the Director. Chair Smith stated that is correct. He further stated findings are
not necessary in an appeal.
With no further discussion, the secretary polled the members' votes .
Mr. Green stated he voted no.
Mr. Sprecace stated he voted no. He has a problem with the equitable estoppel. It is not
usually applied to government entities, but in this case, he believes it could be .
Ms. O'Brien stated she voted yes. It is a lapsed nonconforming use . She believes any error
does not raise to the level of needing to be a manifest injustice, although she finds it
troubling.
Mr. Cohn stated he voted no.
Chair Smith stated he voted yes to uphold the decision. He voted yes because he believes
it expired in one of two ways and should have been caught by the title company at some
point. In spite of Ms. Fowler's protestations that it will result in all kinds of evil, he is not
convinced that it will happen.
AYES:
NAYS:
ABSTAIN:
ABSENT:
O'Brien, Smith
Cohn, Green, Sprecace
None
Carlston, Shotwell
• The Chair announced the motion was denied by a 2-3 vote.
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He stated the City Attorney and .staff will now need to sort out what happens .
111. APPROVAL OF MINUTES
Mr. Cohn moved;
Mr. Green seconded:
'
TO APPROVE THE JUNE 14, 2006 MINUTES.
AYES:
NAYS:
Cohn, Green, O'Brien, Smith, Sprecace
None
ABSTAIN: None
ABSENT: Carlston, Shotwell
Motion carried. The Chair announced the motion approved by a 5-0 vote.
IV. STAFF ADVISOR'S CHOICE
Mr. Bell stated a case is scheduled for the September meeting. The property is located at
2836 South Sherman.
V. CITY ATTORNEY'S CHOICE
Ms. Reid stated she had nothing further.
VI. BOARD MEMBER'S CHOICE
Mr. Sprecace clarified the Board meeting time . The recording secretary stated it is 7 p.m.,
and all documents have been changed.
Mr. Cohn invited the Board to the Englewood Days car show on Saturday, September 9.
There was no further business brought before the Board. The regular meeting was declared
adjourned at 9:00 p .m .
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