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HomeMy WebLinkAbout2008-07-09 BAA MINUTES• • • 1. Call to Order CITY OF ENGLEWOOD BOARD OF ADJUSTMENT AND APPEALS MINUTES JULY 9, 2008 The regular meeting of the Englewood Board of Adjustment and Appeals was called to order at 7:00 p.m. in the Englewood City Council Chambers, Chair Smith presiding. l?ll 2. Roll Call Present: John Smith Ill , Marcia O'Brien, Douglas Cohn, Carson Green, Su e Purdy, David Sprecace, Staff-Assistant City Attorney Nancy Reid (Not voting), Planner Brook Bell (Not voting) . Absent/Excused: Miodrag Budisa. Chair Smith stated there were six members present; therefore, five affirmative votes are required to grant a variance or appeal. Chair Smith stated that the Board of Adjustment and Appeals is empowered to grant or deny variances by Part Ill, 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 appea l period. Building permits for construction associated with an approved variance will not be issued until the appeal period is ended . Building permits must be obtained and constr u ction begun within 180 days of the variance's effectiv e date . Chair Smith set forth parameters for the hearing: The case will be introdu ced; applicants will present their requ est and reasons the variance should be granted; proponents wi ll be given an opportunity to speak; opponents will address the Board; and th e n staff will add ress the Board. Staff will giv e a preliminary overview of the variance befor e testimony is taken . • • • 3 . Public Hearing: Case #VAR2008-0004 Michael Helmut, Ultimate Motion, Inc. 2866 South Broadway Chair Smith reopened the public hearing for Case VAR2008-004 which was continued from June 11, 2008. Chair Smith stated he had proof of posting. He introduced the case by stating the applicant is requesting a variance to exceed the six foot permitted maximum fence height by two feet. This is a variance to Table 16-6-6.3 of the Engl ewood Municipal Code . Brook Bell, Planner, was sworn in . Mr. Bell presented a PowerPoint presentation and reviewed the subject property and surrounding properties. Eight neighbors surrounding the property signed statements stating they did not object to the variance . !?] Mark Bryant, 5299 OTC Boulevard, was sworn in. Mr. Bryant stated he is the applicant's attorney and is representing him pro bono. Mr. Helmut's business was in Denver for several years. He recently moved to Englewood because he felt it was a better area for his business and family. Mr. Helmut's primary concern is the health, safety, and welfare of the community and his business. He is concerned about vandalism, theft, and injury. The unique physical condition is that the adjacent lot has a bus stop . He has visited 2866 South Broadway and both the bus stop and the alley creates a significant amount of foot traffic. Mr. Helmut's motorcycles come from different manufacturers and vary from $50,000 -$100,000 in value. They attract a lot of attention. There is also an open parking lot which makes the business very visible, which is good and bad. His prior business location in Denver was subject to a lot of vandalism, which he was hoping to avoid in Englewood . The intent of the zone district is a six foot fence; however, while the applicant has an eight foot fence it is more transparent than other things in the area. It is meant to be aesthetically pleasing and serves its purpose. One of the photographs included in the packet was a six foot man standing next to a fence. They felt the eight foot fence would be a larger deterrent than a six foot fence. The third criterion was it would not impair the use of adjacent properties. Th e re ar e other fences in the area that are permitted; the existing eight foot fence was constructed for safety of the applicant's inventory and to deter vandalism . 2 • • • The fourth criterion was there was no self-imposed hardship. Mr. Helmut is a member of a long-standing business community concerned about the people around him. He obtained the neighbor notifications and asked if they had any concerns regarding the fence. He felt he was helping the other businesses by deterring vandalism which could bleed onto other properties from his business drawing attention. None of the neighbors he approached object to the variance. This is a first-class business, which is run with class and respect for the community and the people around it. Mr. Bryant requested the Board favorably consider the variance request to assist Mr. Helmut with his objectives. Mr. Cohn stated the Code allows a six foot fence. He asked if Mr. Helmut talked to the City about erecting the fence. Mr. Cohn also stated the photo with the fence appears to be six feet but then posts appear to extend higher. He asked Mr. Helmut to clarify the fence height. Michael Helmut, 1414 Amherst Avenue, was sworn in. He testified he was unaware a permit was needed or of height restrictions. Mr. Helmut took responsibility for his na·i"vete and apologized. He and a friend started construction of the fence and where asked to stop by the City. Mr. Helmut stated the fence is actually eight feet tall and posts are actually higher because the construction work was stopped before they could be cut down. The posts need to be cutoff and made shorter. Mr. Bryant stated Mr. Helmut's property in Denver was vandalized on several occasions and the fence is an attempt to deter that. Mr. Helmut stated part of his over zealousness of protection was three years ago his fenced area at his last place of business was broken into and there was a $93,000 theft loss. Part of his pro activeness with the current fence goes back to that theft; it almost put him out of business. Chair Smith asked for clarification on the photo with the young man standing next to the fence. Mr. Helmut responded that fence is on the property to the north; it is a car lot. He took that photo as a reference. Chair Smith confirmed that it is not the applicant's fence; Mr. Helmut responded it was not. Chair Smith asked Mr. Helmut if his fence would have barbed wire. Mr. Helmut responded it would not.; he took the photo as a reference of what other fences were in the area. Chair Smith stated barbed wire concerns him. Mr. Helmut reiterated that he does not have barbed wire on his fence, nor does he intend to place barbed wire on the fence. Once he received the stop work order from the City, all work on the fence ceased. The posts need to be cut down and the final height of the fence will be eight feet if the variance is granted. ~ Mr. Cohn stated there appears to be an eight foot fence on a neighboring property. Mr. Helmut stated it is a six foot fence with approximately 2.5 feet of barbed wire. 3 • • • Mr. Green asked what it would take to remove two feet from the fence. Mr. Helmut responded that the gates are welded and would need to be rebuilt. Prior to moving his business, he spent time paying attention to the activity in the parking lot. He had apprehension of leasing the building after he witnessed what occurred in that parking lot, which had a lot to do with neighboring businesses and because it is a congregating area for yo ung kids. Since he moved in , most neighbors agree the parking lot is much cleaner because it is cleaned every morning, and they have welcomed him into the community and offered their assistance. Chair Smith confirmed it is the only structure on that lot. Mr. Helmut stated the fence is the only thing on the lot; there was a building on the lot previously but it was demolished before he leased the property. Mr. Bell stated the variance request was distributed to seven departments and none of the departments had any objections. In addition to the Community Development comments, there were also comments from the Engineering Services with respect to the fence being located in an area of probable flooding. That is a very standard comment regardless of the material or height of the fence . There was also a comment from Traffic that nothing would be placed on or n ea r the fence that would obstruct the view of drivers at alley exit. Mr. Bell stated that if the fence were constructed of solid cedar, then Traffic would have an objection. Chair Smith asked if a steel building could be constructed on the lot. Mr. Bell stated th ere would be no issue with height; a 20 foot garage could be built on the lot. ~ 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 th e public hearin g. Ms. O 'Brien questioned how the fourth criterion was met. Chair Smith offered that security cannot be provided with a six foot fence, and the applicant did not create the society that does not respect property rights . Chair Smith stated he does not have a problem with the height, but he does not want it to be a permanent variance. If the variance is granted he would like it to be allowed only for the current tenant and that he doesn't construct other buildings. If other buildings are built, than the variance is revoked. Chair Smith asked if the City had any objections. Mr. Bell stated he did not. He stated Mr. Helmut is the tenant and the property owner is Jon Cook. Chair Smith stated if Mr. Helmut's business leaves, he wants the fence removed . 4 • • • Motion: THAT CASE VAR2008-004 FOR 2866 SOUTH BROADWAY BE GRANTED A VARIANCE TO EXCEED THE SIX FOOT PERMITIED MAXIMUM FENCE HEIGHT BY TWO FEET. THE VARIANCE IS IN EFFECT ONLY AS LONG AS THE CURRENT TENANT OCCUPIES THE BUILDING AND NO OTHER STRUCTURE IS BUILT ON THE PROPERTY. Moved by Marcia O'Brien, Seconded by Douglas Cohn. Mr. Green agreed that the business looks good, and agrees the business ne ed s se curity . There is a lot of foot traffic in the area and graffiti. Mr. Helmut's presence in th e community has cleaned up the neighborhood. Chair Smith stated the entire north end is cleaning up very nicely. With no further discussion, the secretary polled the members' votes. t?ll Mr. Green voted yes . The unique conditions are the large amount of foot traffic and pedestrian visibility of the rear of the property due to the bus stop and the alley. It is consistent with the zone district regulations, securing public health, safety and welfar e. The primary safety issue is deterring crime. It will not impair the use or development of adjacent properties. It is not self-imposed because there is still crime in the neighborhood and a lot of foot traffic. Mr. Sprecace voted yes , concurring with Mr. Green. Also, the entire lot is exposed . It is not the same lot as when a structure was on the lot. The variance is consistent with the intent of the zone district regulations to secure public health, safety and welfare. The variance is needed for the type of business , which is attractive to the use and others who would cause property damage. The fence does not impair the use or development of adjacent conforming properties or alter the essential character of the neighborhood. It is a transparent fence; it does not alter the character of the neighborhood and it is on the rear of the lot. The fence is not a self-imposed difficulty or hardship. The difficulty or hardship is that there is a certain level of crime in that area which needs to be guarded against. Ms. O 'Brien, Mr. Cohn, Ms. Purdy, and Chair Smith voted yes concurring with Mr. Green and Mr. Sprecace. Vote: Motion carried by unanimous roll call vote (summary: Yes= 6). Yes: john Smith 111, Marcia O'Brien, Douglas Cohn, Carson Green, Sue Purdy, David Sprecace. Absent: Miodrag Budisa. Chair Smith instructed the applicant to contact staff for any additional or necessary information . 5 • • • Assistant City Attorney Reid clarified that the variance that was just granted is only for th e fence. The variance is not for storage of vehicles or recreational vehicles on the zone district. She directed the applicant to discuss that issue with City staff to understand the regulations regarding storage of recreational vehicles which are not permitted in that zon e district. [?] 4 . Public Forum Matthew Casebolt stated he is attorney for Bill Curnow and Doug Lillibrige. He presented the Board with a letter. He wished to open a brief dialogue. He beli eves the May 14 Board meeting became a rallying call for an entire neighborhood to persuade the Board to do something that in the light of reason , and with due recollection, perhaps the Board ought to reconsider. His request is that the Board, through the applicable Englewood Municipal Code cited in his letter, reconsider their decision. Mr. Curnow and Mr. Lillibrige stand to loose a lot of money, and he does not think that is what the Board intended to do. When the Board sends a message, it speaks for publi c policy purposes in many different areas. He believes the message the Board sent to th e community was they were not able to uphold the City's decision because the public has risen . People got nervous; they got upset; and they came to the wrong decision. Mr. Casebolt reminded the Board that the City granted a subdivision and then required his client to destroy a house worth $140,000. They granted the subdivision ; one half of th e parcel was then conveyed to the Borchardt family. He received a letter from th e Borchardt's attorney informing him that his clients are going to be sued. Currently there is a lot on South Ogden Street that has nothing on it. The people in th e community think it is a huge eye sore, and nothing can be done about it. He has tried diligently with his discussions with the City to reach some type of compromise. After la y in g out all the reasonable facts, he is being stonewalled. No one wants to work with him to resolve the matter. The important thing to do is ask for the Motion to Reconsider so the matter can be looked at again before litigation ensues . Chair Smith asked Mr. Casebolt if he was going to present anything that could not hav e been presented at the public hearing. Mr. Casebolt stated he would like to review those sections of the Englewood Municipal Code dealing with the review criteria for a City decision. Chair Smith stated it is not a public hearing. The public hearing was held, and a decision was made. Mr. Casebolt stated the matter is still not out of the Board's hands. The Board is in the best position to make the determinations on the matter. The Board has heard all the public comment and it would be better if the Board reconsidered the matter. 6 • Chair Smith stated it is up to the Board and its internal procedures as to wh eth e r or not it makes such a Motion. The public hearing has been closed, and he is unsure wheth e r it is proper for the Board to listen to him or any other input lacking notice to the public of a public hearing. Mr. Casebolt stated that a Motion to Reconsider at a later date, where the public would then be on notice, may solve that particular issue. Mr. Sprecace stated the Board decided it did not have the authority to grant what Mr. Curnow and Mr. Lillibrige wanted to do. Mr. Casebolt stated the Board is empowered to review the City's decisions based on the same criteria. He doesn't believe that is what th e Board did. He believes the Board decided that it would pass on making a decision on th e legality of what City Council should and could delegate. After reading th e Municipal Code, it is his professional opinion that the Board did not have that authority. Th e Board was restricted to reviewing the decision based on the same criteria used as the department. Ms. O 'Brien stated that what he is basically saying is that he disagre es with th e Board 's decision . Mr. Casebolt responded that the Board seized an authority, a procedural mechanism, that it did not have the right to seize . • Chair Smith asked Mr. Casebolt if it was his position that the Board could hav e approv ed an illegal subdivision . Mr. Casebolt stated he did not believe it was within the Board 's purview to decide. Chair Smith asked him to answer his question . Mr. Casebolt responded that th e power to subdivide is specifically granted to the Community Development Department. This Board has the statutory authority to approve. . . Chair Smith stated the Board does not have the authority to approve lot variances or variances in lot lines. • Mr. Casebolt stated that perhaps the remedy is to refer the matter to the correct authority. Chair Smith stated that would be City Council. Mr. Casebolt countered perhap s it should be the zoning board. Chair Smith stated the Board put forth its decision in writing and if a Board member wants to make a Motion to Reconsider, it will be considered under the appropriate rules and regulations. Chair Smith stated he is prepared to shut the public forum off because it is approaching a public hearing, and it is an improper reopening of a public hearing. H e informed Mr. Casebolt that he and his clients have their remedies . Mr. Casebolt thanked the Board for the opportunity to speak . 7 • • • 5. Approval of Minutes I~ Motion: THAT THE MINUTES OF JUNE 11, 2008 BE APPROVED AS WRITIEN. Action: Approve, Moved by Carson Green, Seconded by Douglas Cohn Vote: Motion passed (summary: Yes= 4, No= 0, Abstain= 2) Yes: Carson Green, Douglas Cohn, John Smith Ill, Sue Purdy . Abstain: David Sprecace, Marcia O'Brien Absent: Miodrag Budisa. 6. Approval of Findings of Fact !?] Motion: THAT THE FINDING OF FACTS FOR CASE #VAR2008-003,5460 SOUTH BROADWAY, BE APPROVED AS WRITIEN., Action: Approve, Moved by Carson Green, Seconded by Douglas Cohn . Vote: Motion passed (summary: Yes= 4, No= 0, Abstain= 2). Yes: John Smith 111, Douglas Cohn, Carson Green, Sue Purdy. Abstain: David Sprecace, Marcia O'Brien Absent: Miodrag Budisa. 7. Staff's Choice Mr. Bell stated there are no cases for August. Mr. Bell reminded the Board of the Board/Commission Appreciation evening at Pirate's Cove on Monday, August 11 at 6:30 pm. 8. Attorney's Choice Ms. Reid noted that she emailed the Board a memo regarding procedures on Motions to Reconsider. She has hard copies available if needed. A Motion to Reconsider must be made by a Board member who voted on the winning side; it must be made within a limited period of time, which normally would be the first meeting after the final decision. No new evidence or information can be entered, only discussion between the Board can be held . It is for the purpose of reconsidering a vote that is ill-advised or erroneous. Chair Smith clarified that if a Motion to Reconsider was approved, the Board could reopen the public hearing . Ms. Reid stated that was incorrect. The procedure would ne ed to be started over. The public hearing cannot be reopened once the final decision has been made. Further, a rehearing cannot be held for an appeal as it can for a variance. She noted that Mr. Casebolt served the City today with a Notice of Claim under the 8 • • • Governmental Immunities Act; therefore, Mr. Casebolt does have other venues in which to argue his case which he is pursuing. Ms. Reid provided an overview of a Commerce City case which Chair Smith sent her . Ms. Reid stated she would provide copies to those interested. ~ 9. Board Member's Choice Mr. Cohn stated it is too bad that the developers of the Ogden property cannot get together with the neighbors and determine what can be done. If the residents agreed to allow them to build two houses on the lot, would the City allow them to do that? Ms. Reid stated the staff would now say "no." Further discussion ensued on the matter. 10. Adjourn There was no further business brought before the Board. The regular meeting was declared adjourned at 8:05 p.m . 9