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HomeMy WebLinkAbout2007-08-08 BAA MINUTES• • • MINUTES BOARD OF ADJUSTMENT AND APPEALS August 8, 2007 I. CALL TO ORDER The re gular meeting of th e Englewood Board of Adjustment and Appeals was called to order at 7:00 p.m. in the En glewood City Council Chambers, Chair Smith presiding. Members present: Members absent: Staff present: Cohn, Green, O'Brien, Smith, Sprecace Carlston (Excused) Shotwell (Unexcused) Brook Bell , Planner 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 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 appea l period. Variances are effective at the end of the appeal period. Buildin g permits for construction associated with an approved variance will not be issu ed 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 th e h ea ring : 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 tak e n. 11. CASE #VAR2007-002 Dusty Rhodes 2048 West Wesley Avenue Chair Smith stated he had proof of publication and posting. He introduced the case by stating it is a variance to red uce th e minimum distance requir ement between a small group living facility and a school from 750 feet to 336 feet. This is a variance to Table 16-S- 2:A.1.b(1) of the Englewood Municipal Code. Brook Bell , Planner was sworn. Mr. Bell provided a brief PowerPoint presentation of the project. The zoning is R-2-A , Low Density for Single and Multi-Dwelling Units. Properties east of Tejon are zoned 1-1 , Light Industrial. • • • Dusty Rhodes, 2048 West Wesley Avenue, was sworn in. Mr. Rhodes stated he is requesting the variance to open an assisted living facility. His girlfriend and he will operate the facility together; she is a nurse . The building would be a good use for an assisted living facility because it could be added on to and because of its location. It also would be a good addition to the neighborhood and Englewood. The facility would accommodate eight people which will provide better one-on-one care. A full-time nurse will be on site. Mr. Cohn confirmed that the facility would be for senior citizens only. Mr. Rhodes stated that was correct. Mr. Cohn asked the Board if the variance would be tied to seniors only and would not allow any other type of group home residents. Chair Smith stated it would depend on the motion. Mr. Brook stated Mr. Rhodes or the business would be applying for a specific license with the State. In this particular case it is a personal care boarding home for an assisted living residence. It is tied to a specific license. If the license changed, the City would be notified. Mr. Sprecace asked what was located in the neighborhood. Mr. Rhodes responded there are residential homes. The only issue he is aware of is the school being 336 feet from the property. Ms. O 'Brien asked the applicant for his understanding of the m1n1mum distance requirement between a small group living facility and a school. Mr. Rhodes responded that h e was unaware of why that regulation was in place . Ms. O 'Brien stated she needed his assistance in justifying the Board 's criteria for granting the variance. Ms. O'Brien read the first criterion and stated City staff identified no supporting facts. Mr. Rhodes stated he would not be required to ask for the variance if the school were not located so close to the property. If he were putting up a fence, he could better answer the question, but the shape of property doesn't affect this request. At one time there was another assisted living facility in Denver across the street on Wesley within 750 feet. Ms. O 'Brien read the second criterion and again stated that City staff identified no supporting facts. Mr. Rhodes responded that the current zoning, R-2-A , is a permissible zoning for what he is requesting. There will be 24-hour supervision at the facility . The property will be completely fenced. No one will be wandering off the property. Ms. O'Brien asked the applicant for his background in running an assisted living facility. He responded that he does not have any experience; he is in construction contracting. His girlfriend has been a nurse for 25 years and works for Centura Health. He will provide the construction knowledge. There are no requirements needed for running an assisted living center. It is a 911 facility. Mr. Green asked if he attempted to contact the neighboring properties that didn't return a notification statement. Mr. Rhodes stated he made several attempts, but he was unable to make contact. 2 • • • Mr. Green asked Ms. Reid the reasoning behind the 750 distancing requirement. Ms. Reid stated it was for the quality of parks, schools, and residential areas due to traffic and other such impacts. Mr. Bell added that there are a number of categories under group homes: small group homes, large group homes, and small treatment centers. The Code treats them all the same. There is a distancing requirement for all of them. The Code does not distinguish between some that perhaps have more impacts than others. Mr. Cohn stated he was surprised there isn't a distinction between the people within the group homes -senior citizens and sex offenders. It seems there should be a major distinction between the categories of people within the group homes. Mr. Bell clarified that the City of Denver had an assisted living facility within the 750 feet. Mr. Rhodes stated that was correct; however, the facility is no longer open as an assisted living facility. He would need a variance in Denver as well. Mr. Bell stated the variance request was forwarded to seven City departments and there were no other objections to the request. If the variance is requested, the applicant will need to obtain the license from the State and supply a copy to the City. The license must be resubmitted to the City before December 15 of each year. The City keeps a record of all group living facilities. 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. Smith seconded: THAT CASE VAR2007-002, 2048 WEST WESLEY AVENUE BE GRANTED A VARIANCE TO REDUCE THE MINIMUM DISTANCE REQUIREMENT BETWEEN A SMALL GROUP LIVING FACILITY AND A SCHOOL FROM 750 FEET TO 336 FEET. THIS IS A VARIANCE TO 16-5-2:A.1 .b(1) OF THE ENGLEWOOD MUNICIPAL CODE. Ms. O'Brien asked if the request could be limited to an assisted living facility only, and not a small group home which could potentially turn into a half-way house sometime in the future a short distance from an alternative school. Mr. Green stated he had the same concerns and would prefer limiting the request to elderly non-sex offenders and elderly non-parolees. He believes it requires a zoning change that makes it more specific to the license. Chair Smith cautioned the Board to remember that there is the American with Disabilities Act to consider. Chair Smith read the definition of a small group facility . Discussion ensued regarding the criterion. 3 • • • Mr. Cohn offered a friendly amendment to the motion: THE VARIANCE BE GRANTED FOR THE EXPRESS USE OF A STATE LICENSED ASSISTED LIVING RESIDENCE FOR SENIORS ONLY PURSUANT TO 25-27-101 C.R.S, AS AMENDED. THE VARIANCE WOULD CONTINUE ONLY AS LONG AS SUCH LICENSE IS IN EFFECT. Mr. Smith accepted the friendly amendment. Mr. Green asked if prohibiting sex offenders could be added. Ms. Reid responded that sex offenders do not fit under that particular category. The City has a separate Ordinance which addressed sex offenders which is more restrictive. A sex offender cannot live within certain locations. She stated she would provide the Board a copy of that Ordinance in their next packet. With no further discussion, the secretary polled the members' votes. Mr. Green voted no. It does not meet the first criterion. There is nothing unique about the situation to overrule the Ordinance. He did not find that the request was consistent with the intent of the zone district regulations to secure public health, safety and welfare. He stated he wasn't clear whether or not the 750 feet is to protect the occupants of the facility or the neighborhood. To qualify the rules would need to be more granular and change. It meets the third criterion. It is a self-imposed hardship because it is not necessary to turn the home into a group home . Mr. Sprecace voted no. It does not meet the first, second or fourth criterion . It would set a bad precedent. Ms. O'Brien voted no. It does not meets the first, second or fourth criterion. She concurred with Mr. Green and Mr. Sprecace. Mr. Cohn voted yes. It meets the first criterion. Within the permitted uses it is an unintended consequence of the passing of the Unified Development Code that a big net was cast that caught the tuna as well as the fish it was after. It does not appear to be inconsistent with the zone district regulations because it is a permitted use within the Code. The other two criteria are self-explanatory. Chair Smith voted no. City Council decided through the Ordinance that they do not want group homes within 750 feet of parks and schools. AYES: NAYS: ABSTAIN: ABSENT: Cohn Green, O'Brien, Smith, Sprecace None Carlston, Shotwell The Chair announced the motion denied by a 1-4 vote since 4 affirmative votes were required. The Chair instructed the applicant to contact staff for any additional or necessary information. 4 • • • Ill. CASE #VAR2007-003 Bruce and Angie Meyer 3008 South Logan Street Chair Smith stated he had proof of publication and posting. He introduced the case by stating it is a variance to exceed the 3 foot maximum fence height by three feet within the 25 foot front setback. This is a variance to Table 16-6-6.2 of the Englewood Municipal Code. Brook Bell, Planner was sworn. Mr. Bell prov id ed a brief PowerPoint presentation of the project. The house was built in 1952 and is approximately 1,200 square feet. The City d itch runs alon g the northern property line alon g Cornell. The ditch has a 25 foot easement. The house faces Cornell, but the frontage is along Logan Street. The house is approximately 2 7 feet back from the property line. Bruce Meyer, 3008 South Logan Street, was sworn in . Mr. Meyer testified that the house is positioned very uniquely on the lot. The front door faces Cornell Avenue. A great deal of the space available is consumed by the ditch, but the usable yard is restricted. On the east side of the house is a small yard that backs up to the retaining wa ll. The grandchildren are restricted in p lay in g in the c urr ent avai lab le yard space. The c urrent unfenced yard would be a conduit to connect both of the fenced yards to make it safe and secure; it w ill also make it comfortable usable space . Ms. O 'Brien asked why a 4 foot, 50 percent open fence wasn't satisfactory. Mr. Meyer responded they were looking for privacy since they are on Logan Street with a lot of traffic and road noise. Mr. Sprecace asked which neighbor objected. Mr. Meyer responded it was the neighbor on the other side of the retaining wall. Referring to a photograph, Ms. O'Brien asked the applicant if he was going to put up an old fence. Mr. Meyer responded that he removed an old fence from the east side of the property when he expanded the garage. He would lik e to recycle those materials to begin the co nstruction of the fence, if permitted. Mr. Green asked if he sought notifications from other neighbors. Mr. Meyer responded that he did; specifically the neighbors across Cornell had no objection. A neighbor on Logan also had no objection, but staff decided to withhold that statement because it was not the property owner. Mr. Green asked if there were any photographs that showed a perspect ive from the objecting neighbor's driveway. Mr. Bell responded that there is such a photograph but it is not in the PowerPoint presentation. Mr. Green asked the applicant if he felt the neighbor's concern of the fence blocking her view when backing out of her driveway was le gitimate. Mr. Meyer responded that he didn't; when h e positioned one of the fence panels on his property to determine if it wou ld impair vision, he didn 't believe it did . The City Traffic Division didn't note a problem within the staff report. 5 • • • Ms. O 'B rien stated she didn't understand why he wasn't using new materials. Mr. Meyer stated if the materials were an issue, new materials can be used . His thoughts were to recycle a perfectly good fence. She stated the other houses on the block face onto Logan. His house will be the only house with a 6-foot fence on Logan. Mr. Meyer stated there are other lots that do not face Logan , but he does not know if they have 6-foot fences. There may be one on the corner of Dartmouth, but he is not certain. Mr. Bell confirmed that the Traffic Division reviewed the plans and do not have any comments in terms of site distance. Where driveways meet the street, there is a 10 foot site triangle that fences must stay out of. The fence would not be within that site triangle if the variance is granted; the fence would comply with the Code in every other aspect except the height. Chair Smith asked about the corner lot exception. Mr. Bell stated the depth is 125 feet and the frontage is 100 feet. Corner lot exception comes in when the depth is less than the width and when all the other homes face Logan . Chair Smith asked if it would be considered a side yard if the house were addressed on Cornell. Mr. Bell responded it would not. There was an interpretation from the Planning and Zoning Commission recently on that issue. Chair Smith asked if a variance would be needed if it were a side yard. Mr. Bell stated a 6-foot fence would be permitted on the side yard. Chair Smith asked if the fence would come to the sidewalk. Mr. Bell stated the fence would need to be approximately a foot back from the sidewalk. Referring to a photograph, Ms. O 'Brien asked if the fence would be along the small retaining wall. Mr. Bell stated the fence would enclose the two trees. Mr. Meyers explained that the small retaining wall would need to be removed to meet Code and the fence would be constructed on the same line. Due to the fall off, the inside of the fence would be 6-8 inches lower than 6 feet. Mr. Sprecace clarified that measuring from the grass the fence would be 5.5 feet. Mr. Meyers stated that would be about right. Chair Smith asked if a 6 foot chain link fence could be constructed. Mr. Bell stated it could not. Within the front setback, the applicant would be allowed a 3-foot solid fence or a 4- foot, 50 percent or greater open fence. The applicant could do a 4-foot picket or chain link fence or a 3 foot solid wood fence. Mr. Cohn asked for th e frontage of 3012 South Logan . Mr. Bell stated it is hard to tell; a typical Englewood lot is 50 feet wide. Mr. Cohn stated it appears to be a little wider. 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. Mr. Sprecace moved; Mr. Cohn seconded: THAT CASE VAR2007-003, 3008 SOUTH LOGAN STREET BE GRANTED A VARIANCE TO EXTEND 3 FOOT ABOVE THE 3 FOOT FENCE HEIGHT LIMITATION WITHIN THE 25 FOOT FRONT SETBACK . 6 • • • THIS IS A VARIANCE TO 16-6-6.2 OF THE ENGLEWOOD MUNICIPAL CODE. With no further discussion, th e secretary polled the members' votes. Mr. Green voted y es. He found that the request met the first criterion. The City ditch is on the property and the house orientation on the lot limits the use of space . It is consist with the intent of the zone district regulations . The traffic division did not identify any site distance conflicts. Even though the neighbor objected, h e r driveway is on the other side of her house. It does not permanently impair the use or development of adjacent conforming properties. It is not self-imposed due to the City ditch and the placement of the house . Mr. Sprecace voted yes , concurring with Mr. Green. Ms. O 'Brien voted no. It does not meet the third criterion. It will alter the essential character of the neighborhood if a 6 foot fence is built along Logan Street. A 4-foot high, SO p er c ent open fence would b e more compatible with the neighboring properties and also comply with the Unified Dev elopment Code. An additional factor is the neighbor's objection. Mr. Cohn voted y es, concurring with Mr. Carson Chair Smith voted no. It is not consist with the intent of the zone district. A 6-foot fence along Logan is too much. It alters the essential character of the neighborhood. He concurred with Ms. O 'Brien. AYES: NAYS: ABSTAIN: ABSENT: Cohn, Green, Sprecace O 'Brien , Smith None Carlston, Shotwell Th e Chair announced the motion denied by a 3-2 vote since 4 affirmative votes were required. The Chair instructed the applicant to contact staff for any additional or necessary information. IV. APPROVAL OF EMAIL POLL Mr. Sprecace moved; Mr. Green seconded: TO APPROVE THE JULY 18, 2007 EMAIL POLL. AYES: NAYS: ABSTAIN: ABSENT: Cohn, Green, O 'Brien , Smith, Sprecace None None Carlston, Shotwell Motion carried. The Chair announced the motion approved by a 5-0 vote. 7 • • • v. STAFF ADVISOR'S CHOICE Mr. Bell stated there is not a case for September. On August 1 7, there will be a reception in the City Council Conference from 2-4 pm to welcome Alan Wh ite, the new Community Development Director. August 25 is the Board/Commission Appreciation evening at Pirate's Cove. There is swimming from 5-6:30 pm. Presentations to the boards/commissions will begin at 6:30 pm, with ice cream following. Ms. O'Brien stated she preferred the summer barbeque. Ms. Fenton stated the Board would be seeing a change in their Minutes in the next 3-4 months. A new recording system would be installed and the Board will be transitioning to Action Minutes. If a Board Member wishes more detail, she can provide that Board member with a CD to listen to on his /her computer, or she can email the Board member the agenda with the audio file attached so he/she can click on a particular file attached to the agenda and listen to that portion of the meeting. At this point, City Council Minutes will still be verbatim. VI. CITY ATTORNEY'S CHOICE Ms. Reid stated she had nothing further. VII. BOARD MEMBER'S CHOICE Ms. O 'Brien asked about Ms. Shotwell's attendance record. The less Board members present, the higher the vote must be for the variance to prevail. Ms. Fenton stated Ms. Shotwell indicated she would be in attendance at tonight's meeting. Chair Smith asked the recording secretary to revise the attendance record to mark the meetings that were cancelled due to no quorum as "No meeting due to lack of quorum." Chair Smith asked that the 2006 and 2007 attendance records be emailed to the Board. Discussion ensued regarding Ms . Shotwell's attendance. Ms. Reid stated Board appointments are in February, but the Board has an alternate who attends meetings. Mr. Cohn announced the car show on September 8. There was no further business brought before the Board. The regular meeting was declared adjourned at 8:05 p.m . 8