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HomeMy WebLinkAbout2008-10-08 BAA MINUTES• • • 1. Call to Order E1 2. Roll Call CITY OF ENGLEWOOD BOARD OF ADJUSTMENT AND APPEALS MINUTES OCTOBER 8, 2008 Present: John Smith Ill, Marcia O'Brien, Douglas Cohn, Carson Green, Sue Purdy, David Sprecace, Miodrag Budisa, Assistant City Attorney Nancy Reid {Not voting), Planner Brook Bell {Not voting), two Englewood uniformed police officers {Not voting) 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 appeals by Part 111, Section 60 of the Englewood City Charter. The decision of the Board shall be final, subject only to judicial review. The Board is also 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 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 the hearing : The case will be introduced; applicants will present their request and reasons the appeal or 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 case before testimony is taken. With regard to the appeal , Chair Smith stated the Board is only concerned with the Ordinances of the City and whether or not they were violated in granting the permit. 3. Attorney's Choice Ms. Reid passed . 1 • • • 4. Public Hearings: Case #VAR2008-008 Bill and Laura Bartnick 3009 South Pearl Street Mr. Cohn recused himself from the case since he has been involved with the parties on other issues. Mr. Cohn stepped down from the dais and left Council Chambers. Chair Smith stated he had proof of publication. He introduced the case by stating it is an appeal to the Community Development Department's decision to approve Accessory Permit #ACC2008-00243 for a fence, pursuant to Section 16-6-6:Fences and Retaining Walls, of the Englewood Municipal Code. Brook Bell, Senior Planner, was sworn in. Mr. Bell reviewed the attachments included in the staff report. Laura Bartnick, 3029 South Pearl Street was sworn in. Ms. Bartnick submitted photographs to the Board . Ms. Bartnick read pre-written information into the record, a copy which was presented to the Board . Chair Smith asked Ms . Bartnick if she was going to read the information verbatim. Ms. Bartnick responded, yes. Chair Smith stated the Board can read the information for themselves . Ms. Bartnick stated she understood, but she wants to present the information . She continued reading . Ms. Bartnick submitted a letter to the Board from Miguel and Anne Drake which was undated. Ms. Bartnick submitted a letter to the Board dated July 29, 2008 written from she and her husband to the Drakes. She continued reading . Ms. Bartnick submitted a police report to the Board dated August 4, 2008. Chair Smith stopped Ms. Bartnick and stated that her presentation had nothing to do with the fence and the Ordinance. Ms. Bartnick responded that it does. Chair Smith reiterated that the Board can read the material and instructed her to only present additional material that is not in the information the Board already has . Ms. Bartnick countered that she has citations at the end, but she must first present the facts. Chair Smith stated she has presented the facts, and the Board can read the material. He again encouraged her to move on to facts pertaining to the Ordinance. Ms . Bartnick stated she believes she has the freedom to finish her presentation. Chair Smith and Ms. Bartnick discussed her method of presentation. Chair Smith stated she could discuss the legal citations, but he did not want her to read them to the Board. Mr. Sprecace stated the Board has very limited jurisdiction . The Board can only consider whether or not the fence violates the Code. Any information regarding criminal action, threats, harassment, or the boundary line cannot be considered by the Board . 2 • • • Ms. Bartnick read Englewood Municipal Code 16-6-6:A into the record . Chair Smith asked if the fence was at a street intersection . Ms. Bartnick responded that it at is an alley and a garage; it is an intersection . Chair Smith stated an intersection involves either two streets or an alley and a street. It does not appear to be an intersection. Ms. Bartnick stated Mr. Bell covered that in his presentation that it is an intersection. Ms. Bartnick read Englewood Municipal Code 16-6-6:0 into the record. The alley is used regularly. Community Development approved a three foot fence because of the sight distance triangle regulation . Secretary 's Note : Those portions of Ms. Bartnick 's presentation read into the record are attached hereto as Exhibit A Ms. Bartnick stated they are asking that the Drakes ' fence be removed on the side by their garage . They are requesting that their $125 appeal fee be refunded, as well as $75 for cutting down a 12 foot tall tree and a seven foot tall lilac. They are also requesting the Drakes ' remove their surveillance cameras . Referencing an email dated Sunday, July 27, 2008 to Brook Bell and Sam Watson, Ms . O 'Brien asked if the language in red were Ms. Bartnick's. Ms. Bartnick stated it was her verbiage; it does appear terse . She is not sure why the email was included in the packet, but after a year of fighting with the Drakes and having to defend themselves at every turn, perhaps the Board can understand. Miguel Drake, 3009 S. Pearl Street, was sworn in . Mr. Drake testified that he obtained a permit and built a fence on his property. The fence is a 6-foot, closed picket fence. He had a survey of his property done by a licensed surveyor, and the fence is no less than .25 feet inside his property line. The gates were installed according to the permit. There was a temporary 3-foot picket fence, which is now permanent. The permit matches the fence construction ; it is possible that is off by a few feet in the length. Trash cans are on his property. Mr. Sprecace asked for clarification on the height on the permit. Mr. Drake responded that the fence height on the permit is 6 feet. Mr. Sprecace asked if the cameras were installed on the utility poles . Mr. Drake stated the camera was installed on a private pole. There is one camera on the garage and another on the pole. The one on the pole isn't currently operating. He put it up during the construction of the fence because of the rancorous nature of the relationship between himself and the Bartnicks . He wanted a recording in case something happened. Mr. Sprecace confirmed that according to the survey, the fence is complete ly on his property. Mr. Drake stated that was correct. One of the reasons he did the offset of the fence was so he only removed the lilac bush that was on his property . 3 • • • Mr. Drake stated there are other issues involved; however, in this particular case he has gone out of his way to ensure he was appropriate. There is a permit; the fence is built appropriately; and appropriate materials were used . The fence was built to Code, which he understands is the purpose of the Board . Mr. Drake stated the fence doesn 't interfere with an intersection; it is off an alley. Mr. Drake asked the Board if they wished a copy of the survey; Chair Smith stated his testimony was sufficient to establish the fence was on his property. Mr. Bell stated the accessory permit application and zoning site plan were submitted and reviewed by the correct Unified Development Code (UDC) procedures. The permit application met all the requirements of the UDC. The application meets the three site distance triangle requirements, which are street to street; street to alley; driveway to street. There is no site distance triangle requirement from rear driveway to alley. In terms of the fence materials, both the cedar pickets and galvanized posts meet the material requirements of the UDC. It is considered a combination-type fence. Original permit application was for a 6-foot closed picket fence for the majority of the fence along the side property line . The rear portion of fencing was to be a 5-foot open picket. Currently, there is a 6-foot closed picket fence, which is allowed by the Code. The applicant changed their permit on September 23 to a 6-foot closed picket and added two gates. The permit was approved and complies with the maximum permitted height for fences. The subject property's fence meets all the provisions of the UDC. During the review of the permit, staff did not have any grounds to deny or delay the permit. Based on those facts, the Community Development Department staff approved the application for the fence at 3009 South Pearl Street. Mr. Green asked if there was grounds for an historic easement of access. Chair Smith stated that is a matter for a court to decide. Mr. Green confirmed there is no dispute of the property line . Mr. Bell stated that is his understanding; there does not appear to be any conflict. Chair Smith stated the only onus the Board has is whether the fence is in compliance with property line. There is no evidence that it is not. There were no other persons present to testify for or against the appeal. Chair Smith incorporated the staff report and exhibits into the record and closed the public hearing. Motion: TO UPHOLD THE DECISION TO APPROVE ACCESSORY PERMIT #ACC2008- 00243 IN CASE VAR2008-008. Moved by Marcia O'Brien, Seconded by Carson Green. Vote: Motion carried by unanimous roll call vote (Summary: Yes= 6 No= 0). Yes: John Smith Ill, Marcia O'Brien, Carson Green, Sue Purdy, David Sprecace, Miodrag Budisa. Absent: Douglas Cohn . 4 • • • Chair Smith declared a short recess at 7:50 pm The Board reconvened at 7:55 pm. All members were present, including Mr. Cohn . Chair Smith informed the police officers that they were free to go. Case #VAR2008-010 Michael Jones 4119 South Sherman Street Chair Smith introduced the case by stating it is a variance to encroach 14 feet into the required 20 foot rear setback and 2 feet into the required 5 foot side setback to construct an attached garage . These are variances to Table 16-6-1.1 of the Englewood Municipal Code. Brook Bell, Senior Planner, reviewed the attachments in the staff report and the variance request. Mr. Bell stated there is a typographical error in the public notice; it should read 14 feet rather than 16 feet. Michael Jones, 7850 West Portland Avenue, was sworn in . Mr. Jones is the project manager for the property owners, Daniel Maes and Sarah Jones. The house sits 6 feet off the alley. There is a small yard area where the two-car attached garage is being proposed. The option was building the garage in the front, but with speaking with the neighbors and in reviewing that option it was determined it would detract from the value of the property and neighborhood. Due to the position of the house and the footprint on the property, it does mean the garage would encroach into the setback . Mr. Sprecace asked if the garage would be constructed on the southside of the fence . Mr. Jones stated that photo shows the original house that was built prior to 1942. He is planning on extending the roofline and building the garage. The garage will not setback toward the alley any further than the house currently does. The old section of fence will come out. Mr. Cohn stated a detached garage would not require a variance . Mr. Jones stated that option was considered ; however, it would need to be a single-car garage. Mr. Bell stated that the original house was built in 1942 and the addition was constructed in 1954. The rear setback and side setbacks are more liberal for detached garages than attached garage. Chair Smith asked why the difference. Mr. Bell responded that it was probably due to constructing residential space above attached garages. Residential height is 32 feet; and detached garage height is 16 feet. 5 • • • 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 . Motion: THAT CASE VAR2008-010 BE GRANTED A VARIANCE TO ENCROACH 14 FEET INTO THE REQUIRED 20 FOOT REAR SETBACK AND 2 FEET INTO THE REQUIRED 5 FOOT SIDE SETBACK TO CONSTRUCT AN ATIACHED GARAGE WITH THE CONDITION THAT THE HEIGHT BE NO GREATER THAN 16 FEET . THESE ARE VARIANCES TO TABLE 16-6-1.1 OF THE ENGLEWOOD MUNICIPAL CODE . Moved by Carson Green, Seconded by David Sprecace. With no further discussion , the secretary polled the members' votes. Mr. Green voted yes . The property sits back on the property. When the house was constructed it was already towards the back of the lot. The property owners are restricted from constructing a two-car garage within the Code anywhere within the property, except the front which would be negative for the neighborhood. None of the City departments identified any safety issues . The proposed garage is the same distance from the alley as the house . There are no site issues with vehicles moving in and out; it will not be located on an intersection. By constructing the garage in the rear, it will not alter the character of the neighbor. The house has existed since 1942, prior to the current property owners owning the property. Ms. Purdy, Mr. Sprecace, Ms . O'Brien, Mr. Cohn, Mr. Budisa , and Chair Smith voted yes concurring with Mr. Green . Vote: Motion carried by unanimous roll call vote (summary: Yes= 7). Yes: Carson Green, David Sprecace, Douglas Cohn, John Smith 111 , Marcia O'Brien, Miodrag Budisa, Sue Purdy. 5. Approval of Minutes a. Case #VAR2008-005, 4367 South Logan Street Mr. Green stated he had a correction to the Minutes. Under Board's Choice, he stated "He enjoyed chillin' in the Lazy River with Mayor Woodward." Motion: TO APPROVE THE SEPTEMBER 10, 2008 MINUTES AS AMENDED . Moved by David Sprecace, Seconded by Marcia O'Brien. Vote: Motion carried by unanimous roll call vote (summary: Yes= 7) . 6 • Yes: Carson Green , David Sprecace, Douglas Cohn, John Smith 111, Marcia O'Brien , Miodrag Budisa, Sue Purdy. 6. Approval of Findings of Fact a. CASE #VAR2008-005, 4367 South Logan Street Motion: TO APPROVE THE FINDINGS OF FACT IN CASE #VAR2008-005, 4367 SOUTH LOGAN STREET. Moved by David Sprecace, Seconded by Marcia O'Brien. Vote: Motion carried by unanimous roll call vote (summary: Yes= 7). Yes: Carson Green, David Sprecace, Dou glas Cohn, John Smith Ill , Marcia O'Brien, Miodrag Budisa, Sue Purdy . 7. Staff's Choice Mr. Bell stated there are no cases for November. 8. Board Member's Choice Chair Smith stated his wife volunteered to make arrangements for the Board's holiday • dinner. Board members agreed on Wednesd ay, December 3. 9. Adjourn There was no further business to be brought before the Board. The meeting adjourned at 8:15 pm • 7 • • • Appeal of Drake's fence . Good Evening, Members of the Commission: We are Bill and Laura Bartnick who reside at 3029 S . Pearl Street in Englewood. 1. We are here tonight to appeal the permit and the fence which Miguel and Anne Drake have bu i lt, only as perta i ning to the 25 ft. section between our garage and theirs . 2 . There was no problem with the fence that previously separated our properties, that enclosed their back yard and ended at their garage. But , they deemed that some of the lilacs growing on our side of the fence belonged to them and so they adjusted their fence line to include some of the lilacs to be in their back ya rd. 3. We have no qualm with them adjusting their fence line, or sharing some of the lilacs. We are not really here to appeal their claim of boundary l ines or even to get reimbursed for our trees and lilacs which they cut down in order to put up their fence at the intersection of the old boundary line and the new one. We have heard from many people that there is some kind of six inch rule to someone putting up a fence that the adjoining property owner does not wa nt, but none of this matters to us when compared to the Drake's simple inability to live humanely in peace with us. Because they refuse to be reasonable , they have fallen into the criminal category of Englewood. The portion of the fence we appeal tonight, is just a means to state how much they enjoy making our lives miserable. Causing someone else's misery, bodily harm or property damage are not legitimate standards or lawful purposes for building a fence. 4. All the malicious harassment they have shown us since last October 2007 til now is illegal according to several criminal codes in Title 7 of the Englewood Municipal Code. So these are the facts as to that issue: 5. We originally had our trash cans behind our garage, and we accessed them by the bit of land between our garages. 6. We also used the alley to go to the park or to occasionally offioad our truck. · 7. The Drakes knew this , and they wanted to prevent us from accessing our alley and our trash by building the newest portion of their fence in addition to the old fence they were replacing on the South side of their back yard. 8. Their permit application drawing shows that that the new fence was granted right up to the alley, but only as a 3 ft . high closed picket fence . As you can see from the photographs, that is not what they built. But please also consider that as close as the boundary line is to our garage, even a 3 ft. tall fence prevents us from taking care of our garage by painting it or remov i ng snow between it and the base of their fence . 9. The Drakes have a 3 car garage. The farthest port they use only to rebuild an old car, and they have a camper blocking the sight distance triangle from that side. The two ports closest to us, that they routinely use for their • • • other vehicles , now cannot be safely used because of the sight triangle being obstructed by the 6 ft high fence they built. 10. Their little son cannot safely run out into the alley and across the street to the park, with all the visual blockages they have created on their own property, including the fence . 11. There is a utility pole closed off from the utilities by their new fence appendage which is no accident. They earlier this year sent us a letter stating that we had to take down our utility cables from the pole because it constituted aerial trespass , and that we would be required to get their permission to change them since the pole was technically on their property. They also claimed the pole was theirs. Well, we immediately contacted our utilities, set aside an appointment time for them to check out the Drake's claims, and the utility guys all said the Drakes were full of you know what because everyone has a four foot easement into other's yards in order to attach utilities to the pole, and that the pole does not belong to the Drakes, but to Public Utilities. Nevertheless, the Drakes have built a six foot fence around the pole. 12. The Drakes originally put metal rebar stakes in the ground along the boundary line at the 25' appendage, and then tied pre-tab sections of cheap wooden pickets with open spaces, not closed, to the metal stakes with wire. Bill and l disagree with Community Development that metal rebar stakes and wires tied to the pre-fab quarter inch pine pickets constitutes "decorative metal". There are plenty of decorative metal fences being sold, and l think we all know the difference between cheap temporary utility materials and permanent decorative fencing. 13. When we saw what they were doing, we wrote them a letter (Show Letter) asking them to live in peace and to consider the social and legal alternatives given their shenanigans. 14. Brook enclosed our initial e-mail to Community Development and Sam Watson. At first glance it may appear tersely worded, but we have been defending ourselves against the Drake's pecking all year long, and at this point seem to be more familiar with the Code than most of the employees in the City. 15. The Drakes then called Enforcement again on us, one of many times this year, and claimed we had cut the wires by which they had secured their so-called fence. 16. Then , instead of taking down the fence, or building it per the permit, they pulled up the short rebar stakes and put in six foot tall metal stakes and built a fence from the edge of the alley to the front of their house, cutting down some of our macs and trees, and putting their fence right through the middle of many of the lilacs, which of course, they needed to raise up from the ground so as not to kill the entire row. 17. But, the main part that we are appealing, is the part that interferes with our ability to paint our garage and access our alley, or remove snow from between our garage and the eleven inches between it and their fence . • • • 18. We enclosed four photographs with our appeal , showing the fence in proximity to our garage, of about a foot, and also the surveillance camera they put on the utility pole which was pointed at our home until the police made them move the direction . (POLICE REPORn and finally, the open end of the fence , showi ng that the new portion of the fence is not meant to keep intruders out, or in any way to provide safety to the Drakes. 19. The last weekend of September, they decided it was too obvious what they had done, and so they enclosed the end of their barrier at the back of their garage , but this is no gate, and neither is there a gate on the other end , and so it is a Dead Zone along thei r garage where they cannot even get into it themselves . Also, there is the finger of fence continuing out from the dead zone enclosure to the alley along our garage. 20 . They put their own trash cans along the fence, but thei r trash cans used to be kept on the other side of thei r driveway where they would not fall over due to the uneven, unpaved ground at the fence . 21. Because it speaks to intent, I have to briefly tell you that since last October, 2007, the Drakes have terrorized us continuously and caused nothing but hell in our lives, and now bring ing on pre-mature arthritis to me, and causing two students to leave us. We have students living in a couple of our spare bedrooms , and the first one who moved in was a S. Korean from Teikyo Loretto Heights. As soon as he moved in , their good . -. . . .. ~ • • • Also, EMC 16-6-6:A, 1 ~ 3 Fences and Retaining Walls, states: the following provisions establish Standards to regulate the design and location of fences and retaining walls in a manner that ensures the following: 1. An attractive environment of safe, desirable character; 2. Reduced potential for pedestrian or traffic conflicts; and 3. Protection and security for the owner and adjacent parcels. (emphasis added) ' We appeal this permit and fence portion for violation of all three of these standards because: 1. their 3 ft. picket fence failed to comply with the standard of being safe, or desirable, and that is the only height of fence that was permitted by Community Development. That aspect of the permit caused a hazard in itself and even at 3 ft., it prevented us from shoveling snow or caring for our garage. 2. We appeal because it also does not comply with purpose #2 in height of fence because it does· not reduce any pedestrian or traffic conflicts, but has in fact: a. created more conflicts, and b. being located illegally in the Sight Distance Triangle, is only asking for a vehicular accident from their garage, and c. that it actually provides a safety and sanitary hazard when we try to access our garbage cans with a bag of trash in hand, or access the alley for any other reason. 3. and it fails to comply with standard #3, in that standard three relates to them as well as to us as the adjacent parcel owner. a . there is no protection for our adjacent parcel in being able to clean up the snow or paint our garage with their fence being there, and b. There is also no added protection or security for the Drakes with their new appendage. · c . It causes a further_ impediment to pedestrian and vehicular traffic in the alley, and ·.· •• • • d. As to the Drake's safety, their old fence, and even their new fence sufficiently blocks off access to their back-yard when it turns and connects to the garage at the back of their yard. This 25 foot appendage is like a finger or peninsula between the two garages and noth i ng more. It is a six foot tall boundary line. e. If safety or protection was really what they were after, they would have chosen to seal off access to their North side yard where they keep scraps for rebuilding cars, and where their camper is located, which provides direct open access to their backyard . An example of this is that one day this past W inter scrappers tried to steal from the Drakes by going into their North side yard which is not sealed off by the fence at all , and accessed their back yard easily. When I was walking through the alley from the park with my dog, I saw the scrappers trying to load up Miguel's wheel hubs , and I ran up and stopped them by saying, "What are you doing? This is not your house!" They argued and said it was their property, and I said , "no it's not. I live right next door." They got scared and took the wheels. out of the trunk of their car and drove off.· If the Drakes need safety or protection, it is on the North side of their house, not between our properties. Reinforcing the above standards, the EMC 16-1-4: C.4 states a Specific Purpose and Intent. C. Specific Purposes. The regulations of this Title are intended to implement the Englewood Comprehensive Plan , as amended, and more specifically to : 4 . Promote development that preserves and enhances quality of life. In EMC 16-6-6: Fences and Retaining Walls, it describes: D . Visibility: Sight Distance Triangle. The City Traffic Engineer shall determine compliance with sight distance standards in connection with all permit applications. There is no evidence in this permit to show that the City Traffic Engineer has determined compliance for this fence. 1. Street/Street Intersection Sight Distance Triangle . No fence , visual obstruction or retaining wall over three feet (3') in height above the grade of the adjacent street shall be erected, placed , planted , or allowed to g row that obstructs the view of pedestrians on the sidewalk or obstructs the traffic vision at i ntersections. Their fence , again fails to comply with the definition and code restrictions for Sight Triangle, which in their instance is to protect residents, including their own young son, Ethan , or other vehicles in the alley, having the right of way, from the Drakes• vehicles coming out of their garage .