HomeMy WebLinkAbout2008-05-14 BAA MINUTES•
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CITY OF ENGLEWOOD
BOARD OF ADJUSTMENT AND APPEALS
MINUTES
MAY 14, 2008
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1. Call to Order
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.
2. Roll Call
Present: John Smith 111 , Marcia O'Brien, Douglas Cohn, Carson Green, Sue Purdy, David
Sprecace, Nancy Reid (Not voting), Brook Bell (Not voting).
Absent/Excused: Miodrag Budisa .
Chair Smith stated there were six 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 appeals by Part Ill, Section 60 of the Englewood City Charter. The decision of the
Board shall be final, subject only to judicial review.
Chair Smith set forth parameters for the hearing. The case will be introduced; applicants
will present their request and reasons the case 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.
3. Public Hearing
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Case #VAR2008-0002
Kathleen McGowan
2919Sou~OgdenStre~
Chair Smith stated he had proof of publication. He introduced the case by stating it is an
appeal to the decision of the Community Development Director to approve a property
subdivision (SUB2008-003) resulting in two properties, each with 48.23 feet of lot width in
an R-1-C zone district.
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Brook Bell, Planner was sworn in. Mr. Bell provided a brief summary of the property and
the zoning.
Kathleen McGowan, 2909 South Ogden Street, was sworn in. She is requesting the Board
to reverse the decision of the Community Development Director approving the subdivision
of 2919 South Ogden, resulting in two properties 48 feet in width. She represents 46
neighbors who submitted a letter of opposition, dated March 31, to the Community
Development Director and City Council.
The Unified Development Code (UDC) states that R-1-C lots should be 50 feet wide. R-1-C
is defined as small lots, single residential dwellings. Per Table 16-6-1.1 Summary of
Dimensional Requirements, the minimum lot for R-1-C is 6,000 square feet with a
minimum width of 50 feet. The UDC directs that all subdivisions meet the zone district
dimensional standards. Title16-2-11 :F3, 6 Minor Subdivision Criteria requires:
"Conformance with all applicable use, development and design standards set forth in
this Title.
The action may not create any nonconformity, or increase the degree of
nonconformity, of any existing structure, lot or use."
Title 16-8-4 directs that the standards should be upheld: "No subdivision shall be approved
unless it complies with all the following standards and criteria, including in Part 2
Compliance with Other Provisions of this Title :
All subdivisions shall comply with all other applicable zoning, design, and
development regulations set forth in this Title including ... the general applicable
development standards."
The standard, therefore, should be upheld .
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Community Development approved the subdivision based on a development policy dated
August 2006. It is her understanding that the Board is to base its decision pursuant to the
same criteria as used by the decision maker, based on Title 16-2-18:B. Ms. McGowan
continued by questioning the validity of the criteria used by Community Development. The
policy was based on a study session discussion . She asked if study session constituted
Code; have other subdivisions occurred under the development policy. She found no
reference to the development policy in the 300 pages of the UDC. She asked if the policy
was contained in the UDC. She found no amendments, exemptions, exceptions, or
addendums to the UDC containing the development policy. She asked if the policy was
ever codified. Alan White, Director of Community Development, told her that he would
have expected a Code change to follow such a study session; it never did. •
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Chair Smith clarified the Board's role. The Board is not empowered to overturn the policies
or the Ordinances. The Board must presume they are valid. If the case were being heard in
a court of law, it might be different. Again, the Board does not have the power to declare
something unconstitutional or illegal; they can only review the action of City staff.
Ms. McGowan questioned whether the Board could validate if criteria is part of Code.
Chair Smith responded they could not. Ms . McGowan stated she will continue and address
the other issues; however, she questions the legitimacy of the criteria.
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The development policy is in fact a loophole for developers, allowing a variance in lot
width, which sidesteps the process. This effectively removed the neighborhood posting and
notification process, exempting them from any input. The loophole allows developers to
create nonconforming, substandard lots. The development criteria used by Community
Development is flawed. It was a study session, not Code. The development policy lacks
legitimacy; and therefore, any decision based upon the policy should be invalid. While she
disputes the legitimacy of the development policy as Code, she will address the criteria
used to subdivide the property by Community Development.
The development policy decision states:
"R 1 zones may be subdivided into new lots provided that:
1. The width of any new lot is no more than S% less than the zone district minimum
lot width requirement; and
2. The new lots created in the subdivision shall be consistent with the 'average'
width of other lots on the same block-face. The Director of Community
Development shall determine the average lot width."
This criteria is the same whether the property is located in R-1-A, which requires 7S feet of
lot frontage, R-1-B, 60 feet, or R-1-C,SO feet. She asked if the policy was really intended for
"A" or "B" zones . The R-1-C-zone district already has the smallest lots; does it make sense
to make the lots smaller even if it is only by S%. This is relevant because of the impact the
narrowness of lot has upon the character of the neighborhood, especially regarding garages
protruding from the lot. The current property does meet the criteria for subdividing within
S%.
The second criteria requires that it be consistent with the lot average on the same block-
face. She does not believe it meets this requirement. The overview photo provided by City
staff shows how the lots are laid out.
o 2901 South Ogden, while shown offset, is SO feet wide, 14S feet in depth.
o 2909 South Ogden is SS feet wide, also 14S feet in depth.
o 2911 South Ogden is 60 feet wide
o 291 S South Ogden is SO feet wide
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o 2919 South Ogden (subject property) is 96 feet wide
o 2929 South Ogden is 145 feet wide
o 2975 South Ogden is 50 feet wide
o 2985 South Ogden is 50 feet wide
o 2995 South Ogden is 40 feet; however, in reality when it is measured out, it
is wider than 40 feet.
The staff report average, while true, was mathematically fabricated to justify the subdivision.
Only one lot on the block is less than 50 feet in width; the other 8 are not. Both criteria,
within 5% and an average width, must be met; not just the 5% rule.
The staff report states that as a result of the Land Development Application and the
Development Review Team (ORT) report several conditions were met by the applicant.
The first criteria was demolition. Ms. McGowan stated that the house would need to be
demolished; otherwise, the subdivision would include part of the house on each lot. She
questioned what other conditions were met. A subdivision is not final until it is approved
by the City Attorney and recorded with Arapahoe County.
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The staff report indicates that the property is 96 feet in width and is not typical. Many lots
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on the block and throughout Englewood are not in 25 foot increments. The minimum lot •
area needed in R-1-C is 6,000 square feet. The analysis states that the subdivision would
create two lots of 6,990 square feet each, the residential use would not change, and the
dimensional requirements still apply -setbacks and height restrictions. She questioned why
the lot minimum width wouldn 't apply. Staff also addresses that the development policy
creates a 5% reduction; this is in fact met by the subdivision. The policy also requires
consistency with lot average. The Director is able to determine the average; however, she
believes it should be based on sound mathematical principles . Only one existing lot on the
same block-face is less than 50 feet. She questioned how creating two more lots less than
50 feet be consistent with the average . To state that 90 % of the lots, including the
subdivision, are 40-60 feet, while true, serves only to skirt the issue. The Director's average
is only true after including the subdivided property. She believes the average should be
based on the existing lots. Perhaps the intention of the criteria was to allow subdivisions in
R-1-A where a 73 foot lot might be consistent with the block-face . It would be difficult to
find any block within the R-1-C zone district where the average width is less than 50 feet.
Ms. McGowan testified that she believes the true average on the block-face is 50-60 feet;
six lots meet that criteria. One lot has a width less than 50 feet, and the other two are 96
and 145 feet.
The last criteria in the staff report states that lots less than 50 feet wide do exist in R-1-C ;
this is true; but larger lot widths also exist. With R-1-C already having the smallest widths,
she questioned whether development should continue reducing the size of the lots. She
believes Community Development is trying to deal with an onslaught of development. She •
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does not oppose development; the neighborhood would be happy to have one new house
on the subject property. The UDC seeks to provide for development consistent with the
overall integrity and character of the neighborhood. To allow the subdivision only benefits
the developer; profit is the only motive to subdivide the lot. A subdivision will lead to two
large houses on small lots with garages protruding in front of the houses. This is also not
consistent with the UDC. Title 16-6-1 O:S(a) regarding garages and parking structures states :
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"The presence of open lawn and landscaped front yards throughout the City's
residential districts is a strong character-defining feature of these neighborhoods.
These front yards provide a soft-edged buffer between the street and the homes, and
their consistent appearance creates a uniform, inviting appearance along the street.
As reinvestment occurs, the open character of the front yard area should be
preserved. Paving and other hard materials, in excess, can detract from this
appearance and should be limited to the narrow driveways and walkways as
traditionally found."
In regard to garage placement, Title 16-6-10:6(a) states :
"Locating the garage to the rear or side of the home, as is typical in many parts of
the City's residential districts, allows the architectural details of the home and front
yard to define the character of the street. Recent residential development has
introduced designs where garages, and often driveways, dominate the public street.
To protect the established character in many residential neighborhoods, garage
placement and scale should be carefully considered to minimize the visual impacts
upon the street and surrounding development."
Ms. McGowan continued; the only way to put garages on these properties will be to have
large protruding garages in the front. She believes the character of the neighborhood is
being destroyed by these large protruding garages. She submitted photos of the
neighborhood. She stated the photos show large lawns and landscaping in the front;
protruding garages are not consistent with the neighborhood.
Regarding the letter from the Borchardts which was included in the packet, they indicate
they have already purchased the property. She holds nothing against them, wishes they
could be present, and would welcome them into the neighborhood if they were building
one house on the existing property.
The subdivision is not final until full approval and until it has been recorded with Arapahoe
County; therefore, she questions the validity and legality of having closed on a purchase.
She cannot imagine any title company would allowing the sale and closing until completion
of the subdivision process .
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One of the issues the Borchardts bring up is that the plans include a side-load garage. This
is still a large garage protruding in front of the house. The garage and driveway would leave
almost no lawn or landscaping, which is uncharacteristic of the neighborhood, and which is
shown on the submitted plans. The letter also addresses that the two new lots would be
48.23 feet in width, which is wider than 2995 South Ogden. That property is actually 45
feet, rather than 40 feet, and the only lot on the block less than 50 feet. It addresses that
the new lots would be approximately 6,900 square feet in area . The Borchardts indicate
that is larger than five lots on the block; Ms. McGowan does not believe this to be true.
Both 2901 and 2909 are larger. This is not the overriding criteria for division. To meet lot
area minimum does not nullify the minimum lot width requirement. The 48 feet frontage
would not be consistent with other lots .
In summary, Ms. McGowan testified that the Community Development Director should
have followed and applied the UDC. The UDC repeatedly directs compliance with
dimensional standards . The development policy is just a study session. There was no UDC
change; there are no exceptions, exemptions, or amendments. There is no reference to the
development policy in the UDC. The development policy is not legitimate; and therefore, a
decision based on it should be nullified. Ms. McGowan believes the policy is a loophole
that creates a variance without due process. If the Board accepts the development policy
standards, two criteria must be met. She does not believe the average lot width criteria was
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met. She asked the Board to reverse the subdivision. Forty-six people signed a letter in •
opposition. She believes the development policy has worked this process; granting a
variance without public notification. No sign was posted on the property. She believes the
process is backwards and upside down. She and the neighbors were forced to attend a
meeting to repeal the decision . Community Development is making the case for the
developer. She believes Mr. Curnow should be before the Board seeking a variance. The
neighbors have to bear the burden of proof in the case and convince the Board to reverse
the decision. She believes Community Development should be standing up for the UDC.
She asked someone on the Board , Community Development, or City Council to step up
and address the issue of the development policy. The Board stated it was not its place to
deal with the issue; she stated someone needs to deal with it. She reiterated her desire for
the Board to reverse the decision and that somebody deal with the development policy.
Marcia O'Brien stated she would go through a quick analysis and would then ask Ms.
McGowan whether or not she agrees. Then, she hopes to ask the decision maker if he
agrees; however, she didn't see him in the audience so hopefully someone will speak for
him . Ms. O 'Brien stated she would not address the validity of the policy; she is assuming it
is in full force and effect. The second point of the policy decision states:
"The new lots created in the subdivision shall be consistent with the 'average' width
of the other lots on the same block-face. "
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She agrees with the staff report, page 3 that the west side of the 2900 block of South
Ogden be used to calculate the lot average. Ms. O 'Brien characterized staff's math as
"voodoo math."
Chair Smith interjected that it seemed Ms. O'Brien was getting into argument or Board
discussion, rather than asking a question.
Ms. O'Brien proceeded; she added up the other lots on the block; she then divided it by
the number of other addresses on the block, which are 8 if the subject property is excluded .
Her figure for the average is 62.5 feet for the average width. Mr. Curnow is seeking 48.23
feet; her determination is based on whether or not that is consistent with an average of
62 .5 feet. Ms. O'Brien asked if Ms. McGowan disagreed with that analysis.
Ms. McGowan responded; she would call that "creative mathematics" to say that 48 feet is
consistent with 62.5 feet. Ms. O'Brien stated she didn't say whether or not it was
consistent. Ms. McGowan stated she does not believe 48.23 feet is consistent with 62.5
feet. Ms. O'Brien asked if she disagreed with her analysis of determining the average lot
width. Ms. McGowan stated there are many ways to produce an analysis, and doesn't
disagree that the analysis is correct.
John Smith asked how the subdivision impacted Ms. McGowan, other than the aesthetics.
Ms. McGowan responded that it is not consistent with the remainder of the homes on the
block. It will change the character of the neighborhood. The submitted photograph shows
large lots. Chair Smith stated one photograph was submitted which shows a vacant lot. He
drove down the street; there are a number of lots that are approximately 50 feet wide.
There are a couple of new houses being block on the next block. Chair Smith reiterated his
question: How does the subdivision impact her? He asked if it restricted any use of her
property. Ms. McGowan stated it does not.
Chair Smith asked if it impacted her property value. Ms. McGowan responded that it very
well might and it might drive her and others in the neighborhood, who have been invested
in the neighborhood for a very long time, out of the neighborhood. Chair Smith asked
whether two nice homes in the neighborhood might also increase her property value. Ms.
McGowan responded that she believes one nice house on one large lot would increase her
property value . The neighborhood would be faced with having their lots shaded by the
garages and two-story houses. Chair Smith asked Ms. McGowan if she thought a vacant lot
was consistent with the neighborhood and was helping her property value. Ms. McGowan
stated that the vacant lot is not helping. The vacant lot has been absolutely disastrous since
Mr. Curnow bought it, at which point he demolished the structure and dumped truckloads
of dirt on the property. Chair Smith stated that has nothing to do with the current case.
Ms. McGowan pointed out that he was the one who brought up the vacant lot. Chair
Smith responded that was in regard to property values. Chair Smith asked her if the
subdivision restricted any use of her property. Ms. McGowan stated it did not.
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Chair Smith stated the only way she is aggrieved is that there are two lots slightly smaller
than the other lots on the block. Chair Smith stated if he throws out the high and the low,
he arrives at approximately 54 feet. He doesn't necessarily know what "consistent" means
either, but it is not 66 feet on the average. One lot is 145 feet wide. Ms. McGowan stated
she doesn 't believe it is consistent to create two lots that are smaller than the average.
Chair Smith asked if there was any other way she was damaged. Ms. McGowan replied she
was not.
Ms. O 'Brien clarified the Board is to place themselves in the position of the decision maker.
Chair Smith stated that was correct.
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Stephanie Schmidt, 2924 South Ogden, was sworn in. Ms. Schmidt testified she lives
across the street from the proposed subdivision. She was in front of the Board
approximately two years ago seeking a variance. She built a garage on the rear of her
property and it was 3 feet too close to the alley. She was told when she met with City staff
that "No problem, done deal. The variance will be fine." She presented her case to the
Board and it was denied. She was shocked beyond belief. The builder had to move the
garage in 4 feet. She told the Board how happy she is with that decision. If her garage had
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stayed in place, she would not be able to back out of it and would hit the neighbor's fence . •
The Board made a good decision in that case.
She has lived in Englewood 15 years. For her variance case, she was required to place a
huge sign in her front yard, notifying all the neighbors that they had a right to come appeal
her request for a variance. Only one person objected to the variance. The Board indicated
at the hearing that the one objection was enough to make a decision because people
around her didn't agree with the variance and the Board had to stick to the zoning
restrictions. She asked the Board to do the same thing for the subdivision because it will
affect the neighborhood. The two houses that were built down the block are ugly; they are
not appealing; they will not increase the property values; and they will not do anything for
the neighborhood.
The neighborhood is very close. They get together socially and are invested in their
properties . Even though the builder, nor the property owner, didn't put up a sign , the
neighbors pay attention to what goes on in the neighborhood and are vested enough to
come and speak to the Board. She asked the Board to take everyone very seriously and
listen to what they have to say because they live in the neighborhood; the subdivision will
affect the neighborhood. The City has made zoning restrictions for a reason and it is
important to respect those.
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Jill Moore, 2911 South Ogden, was sworn in. Ms. Moore testified that she wants to make
sure everyone understands that Code is important and that policies should be followed.
The neighbors received conflicting information on the subdivision . As residents and
taxpayers of Englewood, they were in the dark the entire time. Some neighbors noticed
stakes in the ground after the house was demolished. They then understood that things
were happening on the subject property. They did not have an opportunity to even say
anything about it. That is why a number of neighbors have turned out to voice their
opinion and to make sure that Englewood does adhere to policy. As Ms. McGowan
testified, the policy that is supposedly in place was a discussion topic. The policy has not
been adopted, is "not written in stone", and has not been approved by the City Attorney.
Mr. Curnow has entered into an agreement, prematurely in her opinion, with people who
plan to build on the lot. They have been instructed by many people within Community
Development that it was written in stone in 2006. In 2007, Mr. Curnow had an interesting
discussion with a neighbor directly across from the property. Mr. Curnow denied that he
owned it, that it was owned by an LLC. He was attempting to cleanup weeds on the
property because Code Enforcement had been called repeatedly. He then went across the
street and handed the neighbor his business card and suggested that perhaps he not call
the City but call him instead to remove the weeds. Ms. Moore testified that she is not quite
sure was is happening to the subject property other than they want to ensure Code is
enforced . She did some remodeling and was strictly held to the Code and policies. She
asked why someone who doesn 't live in Englewood nor is an Englewood taxpayer can have
something totally reversed without opposition, and the neighbors cannot do simple
remodels or repairs to their homes without going through "hoops." Her opposition to the
policy is that it is not Code; it has not been amended by the City. It doesn't harm her in
anyway; it doesn't cost her money other than the application fee to be heard before the
Board . Mr. Curnow did not. She wants everything per City policy and to be consistent.
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David Westfall, 2960 South Ogden, was sworn in . Mr. Westfall testified that he has lived in
Englewood 32 years. Regarding 2995 South Ogden, he and his wife measured the
property from the fence to the grass on the inside of the sidewalk. The property measures
49 feet, not 40 feet. He is not sure of the legal description, but it doesn't match the width
in the Borchardts' letter.
On the day the weeds were being taken care of, he approached the gentleman cleaning the
weeds, asked what he was doing and what the plans were for the property. The gentleman
told him that he was going to build two houses on the lot. Mr. Westfall told the man he
thought that would detract from the neighborhood. He told Mr. Westfall that he didn't give
an "FK " about the neighborhood and there was absolutely nothing that could be done on
that property that would hurt that neighborhood because it was a "crap" neighborhood.
Anything that was done would be an improvement. Mr. Westfall stated he received pretty
good knowledge of the man's intentions for the property; a house that takes up most of the
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property, reaps the most profit -"take the money and run."
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Donna Nelson, 2989 South Corona, was sworn in. Ms. Nelson testified that she does not
live on the block where the subject property is located; however, she has friends who live
on the street. She read the 2003 Englewood Comprehensive Plan for development and
redevelopment in the area. In the Plan, she could see that everyone was proud of the
redevelopment done at the light rail station. In the Plan it states:
"As an asset of Englewood, many of the City's existing residential areas are stable,
well maintained neighborhoods with a strong sense of ownership and community
pride. These neighborhoods will continue to enjoy stability. Changes in these areas
will be primarily driven by private decisions to add a second floor to an existing
house or additional rooms to a ground floor."
Ms. Nelson testified that the neighborhood is very stable; there is a lot of community pride.
The lawns are well kept and the neighborhood is landscaped. Another portion of the
Comprehensive Plan states: "Civic pride is fostered when local designs are emulated in
new buildings." The new homes are not going to be emulating local design; they are going
to be massive structures on two small lots. It does not damage her monetarily, but
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emotionally it does damage her. Increased traffic also has to be considered . There is a 145 •
foot wide lot next door. If this variance is allowed, she asked what would stop someone
from buying that property and dividing it into 3 lots. Instead of 9 lots on the street, there
would be 12 lots and 5 large houses. This would cause an increase in traffic and reduction
in lawn space and landscaping. Those are the damages to the neighborhood. As a
community, they do converse with each other; they walk their dogs. The subdivision
would prevent that community spirit from continuing. It will also kill their civic pride in their
neighborhood. Allowing the subdivision, especially behind closed doors, is not fair. She is
not concerned as to its legality. Just because something is legal, doesn't make it right.
Kathy Robbins, 2929 S Ogden, was sworn in. Ms. Robbins testified her property is the 145
foot wide lot on the block, which will never be subdivided into three lots because there is a
City easement on the south portion of the property which precludes building. Chair Smith
asked a question whether there was any harm in the development. Ms. Robbins stated that
the structure that existed on the lot for the first 8 years she lived in the neighborhood was a
dump and a pit; the fact that it is gone is a huge improvement. Her concern is density.
When she first started driving into Denver on Logan Street, it was a neighborhood; now it is
not. It is nothing but one house on top of another. Houses with character scraped off and
monstrosities put in their place. That could happen on any lot in her neighborhood. The
proposed houses are not consistent with the character of the neighborhood. She has not
been able to have her windows open on the north side of her house for three years
because of the piles of dirt. She has called the City to determine if that was legal to make a
dump site next to her house; they informed her that as long as it wasn't visible from the •
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street and an eyesore there was nothing they could do. Building on the lot would be an
improvement, but she would like to be able to open her windows and have some privacy.
She would like to see a really nice single-family house utilizing the entire lot. Economics
may preclude that, but that would be the ideal situation.
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Maureen Dehne, 1177 East Amherst Avenue, was sworn in. Ms. Dehne testified that she
has a good friend who lives directly across from the lot. He asked her top voice his
concerns since he is out of town. She has lived in the neighborhood for 7 years. Part of the
reason she moved from Denver to Englewood was the neighborhood charm. She uses
Ogden to get to Dartmouth and it never ceases to amaze her when she drives down the
street. She is always looking at what people are doing with their yards. It adds to the
charm of the neighborhood. When she crosses Cornell and sees the new developments, it
looses a lot of its charm . She reiterated Ms. Robbins ' concerns about density. Even though
her lot cannot be divided into 3, it could still be divided into 2 lots. For Mr. Mills who lives
across the street, he would be looking at 4 homes rather than 2. The subdivision provides a
lot of value to the developers; however, one home nicely built on the lot would improve
property values much more.
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Gregg Nahm, 2951 South Emerson, was sworn in. Mr. Nahm testified he has lived at his
current location for 1 7 years. He read a letter on behalf of the neighbor directly across the
street from the subject property who couldn 't attend the meeting. The letter is addressed
to the Board and written by D. Christian Mills.
"Due to business travel I am unable to attend the meeting on Wednesday, May 14,
2008, concerning the proposed subdivision of the property at 2919 South Ogden
Street. I live directly across the street from this lot and I am firmly opposed to the
subdivision of this property. I have asked a neighbor to read this letter on my behalf
because I would like my voice to be heard about this proposal and the process that
was used to arrive at the decision that is being appealed.
Building two home on this property instead of one will dramatically affect the
character of the neighborhood and may substantially impact the value of the existing
homes on the blocks ."
(Comment by Mr. Nahm: None of us could predict that; we don't want to take the
chance.)
"The method by which the discussion and decision on August 23, 2006 that allowed
this subdivision took place was a flawed process."
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(Comment by Mr. Nahm: We are not happy about that; we are not delighted to point that
out. It is just the facts.)
"Because the proposed changes to the zoning requirements that would allow for
subdivision of smaller lots has the potential to significantly impact property values ,
affected homeowners should have notice and opportunity to comment on these
proposed changes. We were not given this opportunity.
Some of the information that I have received indicates to me that this decision is
geared toward development versus Englewood citizens.
• I received a message from Audra in Community Development on
March 14 (in response to my call on March 13) stating that the
property was already subdivided when the Board of Adjustment and
Appeals document dated May 14, 2008 states that the Directors of
Community Development and Public Works signed the document on
March 27, 2008.
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• Selling one half of the property to the Borchardt family prior to the
final decision is both an incredible disservice and potential legal hassle
for the Borchardts or an indication that this subdivision was already
assumed to be a final decision." •
(Comment by Mr. Nahm: That was a slap in the neighbors' faces.)
• "The administrative Development Policy dated August 23, 2008, was
not presented to the residents of this block even though it may
substantially impact the value of our homes and the homes in the
surrounding blocks.
In addition to the objective criteria stated above, I ask you to consider what we have had to
put up with since Mr. Curnow purchased the property in 2005.
Records from Code Enforcement will show the type of neighbor Mr. Curnow has been. He
regularly let weeds overrun the property until he was forced by the City to cut them down.
When I approached him about this in person, he asked that I call him the next time the
weeds got to the point they needed to be cut down. The first time I called him he
responded by poisoning the grass and weeds, turning the entire property brown for well
over a year."
(Comment by Mr. Nahm: Where's Al Gore when you need him?" That doesn't help
property value.)
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Chair Smith asked Mr. Nahm if he was reading the letter or if he was also commenting. Mr.
Nahm stated he was also commenting; he is a neighbor. Chair Smith indicated that he is
reading a letter that may or may not come into evidence; the Board can take the letter but
to some extent it is hearsay. The Board appreciates Mr. Nahm's comments and as a citizen
is entitled to make those. Chair Smith stated he is having difficulty knowing the difference
between what the neighbor has written and Mr. Nahm's comments. Ms. O'Brien suggested
Mr. Nahm read the letter first and then make his comments. Chair Smith agreed.
Mr. Nahm continued reading the letter.
"Mr. Curnow used the lot as a dumping ground for his other construction projects
and allowed the original house to attract rodents and other wildlife. I assert that Mr.
Curnow does not have the best interests of the neighborhood in mind when he
requested the subdivision of the property.
In conclusion, I am asking that the Board of Adjustment and Appeals examine the
facts surrounding how the decision to grant this subdivision was made, consider the
lack of notice regarding the Development Policy, and to take into account the
impact that it will have on the neighborhood .
Thank you for your consideration.
Sincerely,
D. Christian Mills
2952 South Ogden Street
Englewood, CO 80113"
Chair Smith asked Mr. Nahm if he wanted the letter to become part of the record. Mr.
Nahm's presented the letter to the recording secretary.
Chair Smith asked City staff to present their case. Mr. Bell asked if there were people
signed up to speak in favor of the City's decision. Chair Smith stated there were 3 people;
the City is present to defend its position and needs to present first.
El
Mr. Bell stated he wanted to respond to one of the issues that was eluded to in terms of lot
sizes. He understood that are at least 3 lots, 2901, 2909, and 2995 South Ogden, that
have been referred to as being larger than 145 feet long or 40 feet wide. Lot lines and
property lines do not necessarily, and most often do not, go to the back of the sidewalk. In
reality the back of the sidewalk is just the back of the sidewalk and often City right of way
lines go much further into people's front and side yards. That may explain why there is
13
some confusion . Visually it is difficult to know where the property lines are located. The
widths are correct unless a survey would show otherwise.
Addressing Ms. O 'Brien 's question on the averaging, Mr. Bell testified there are many
different methods to look at the average number and the policy does not stipulate the
methodology nor can he speak to the Director's exact methodology that he used in making
his decision . In previous discussions, the average was determined by removing the subject
property. In this case that leaves 8 properties, 5 properties are 50 feet or under (4 are
exactly 50 feet); 3 are 55 feet or over. It is a range: 40 feet, 55 feet, 60 feet, and 145 feet.
In terms of looking at an average to verify the percent from the most common number, it
would appear to be right at 50 feet. Using the methodology of adding up the widths and
dividing by 8 to arrive at 62.5 feet, that would not be consistent or the 48.23 feet would
not be consistent with 62 .5 feet. That would be over a 5 percent difference.
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Chair Smith stated he didn 't understand the Director's math either; averages can be figured
however a person wants . To grant the variance under the policy, it would be variance to lot
width not the policy. Chair Smith clarified that 62 feet had nothing to do with it. Ms.
O 'Brien asked if Chair Smith was presenting the case, or was he going to ask questions and
argue. Chair Smith withdrew the question . Mr. Bell summarized by stating the Curnow
subdivision meets all the UDC requirements for a minor subdivision in the R-1-C zone
district, with the exception of the requirement for the 50 feet of lot width. In response to •
Council 's direction from the 2006 study se ssion , staff prepared a development policy that
would permit the subdivision of parcels in the R-1 zone districts provided the newly created
lots are within 5 percent of the zone district minimum lot width. The lot width minimum in
this case is 50 feet; 5 percent is 47.5 feet. The lots created by the subdivision are 48.23
feet.
e
Ms. O 'Brien stated that is not a complete statement of the policy. Mr. Brook responded in
addition to the average lot widths we were talking about. In conclusion, Mr. Brook stated
that it was under that policy that the subdi v ision plat for the property was prepared,
submitted, reviewed, and approved by the Community Development Director.
Ms. O 'Brien stated that if she understood Mr. Bell's testimony correctly, he is not the
Director of Community Development. Mr. Bell stated that was correct. Ms. O'Brien
confirmed that the Director was not in attendance to explain his methodology. Mr. Bell
responded that was correct. Ms. O 'Brien asked if he knew the Director's methodology .
Mr. Bell responded that he could not speak to the Director's exact methodology. Ms.
O'Brien stated that while Mr. Bell cannot explain the Director's methodology, she is
supposed to put herself in his place and make a decision. Ms. O 'Brien asked if there was a
definition of "average " in the policy. Mr. Bell stated there was not. Ms. O'Brien asked if
there was a definition of "consistent." Mr. Bell stated there was not in the policy. Ms. •
O 'Brien asked if he agreed with her that if her method of doing the average is correct and
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there is an average of 62.5 feet, which not everyone agrees with, 48.23 feet is not
consistent. Mr. Bell responded that it is not consistent if it is looked at in that way. Ms.
O'Brien stated she has never seen averages where a number cannot be arrived at. This is
where she is getting frustrated.
e
Mr. Cohn stated his questions have to do with "this book." It is a section of the Englewood
Code that assists the Board. As he was looking for the items discussed and the policy that
Community Development made, he could not find it in the UDC. This book, as well as the
remainder of the Code, while developed by different committees where approved by the
City Council; the amendments were approved by the City Council. As far as he can tell, the
policy has never been presented, except for a discussion at a study session. Community
Development then came up with a plan that was never again presented to the public who
have to make it part of this book. Near as he can tell, the policy is not a part of this at all.
He does not believe that the policy has any standing before the Board. Mr. Cohn stated
the rest of "the book" was approved by City Council. He asked how the policy would be
part of the Code.
Secretary's Note: Mr. Cohn reference to "this book" is the Unified Development Code .
Mr. Bell responded the policy is not a part of the Code. The policy was developed under
the direction of City Council, written by City staff, and on which the Director based his
decision.
Mr. Green asked if there were other such policies which modify the Code and which the
Board is unaware. Mr. Bell stated there are some policies; there are parts of the Code
where there is some administrative discretion. Those policies are often written to create
consistency within the Department. Mr. Green asked if the subject policy was specifically
created because of administrative ambiguity. Mr. Bell reiterated that the policy was written
based on direction from City Council. Mr. Green asked where in the Code there is
administrative discretion.
Chair Smith stated there are some administrative discretion provisions in the Code;
however, this policy is not one of them. Mr. Bell stated there are administrative
adjustments in the Code, but lot widths is not one of those. Mr. Green asked if it was Mr.
Bell's understanding that the City Council in study session can make a change to anything
within the UDC. If the policy changed based on a City Council study session without
reference to any administrative decision or ambiguity and doesn't go through the
amendment process, he asked if the City Council, in a study session, can change anything
in the UDC. He asked if that is how it worked.
Chair Smith stated the Board must presume that the policy is a valid rule and regulation .
The Board is charged with interpreting the Code from the decision maker's viewpoint, and
15
the Community Development Director has discretion to do things. Chair Smith suggested
that after testimony is received, the Board go into Executive Session to ask the City
Attorney for her legal opinion on the development policy and whether the case should be
considered by the Board . He personally does not believe the case should be before the
Board. He believes it should be a Planning & Zoning matter, not a Board of Adjustment
matter. Ms. O'Brien stated she agreed. Chair Smith stated Mr. Bell should not be placed in
the position of determining the Director's direction as whether it was right or wrong. Mr.
Green asked if it was Mr. Bell 's understanding that City Council can make a policy, which
Community Development follows, that modifies anything in the UDC. The policy does not
reference an administrative discretion issue. Chair Smith stated he didn't believe that was a
proper question for Mr. Bell; he cannot answer it.
Mr. Cohn stated the answer is that City Council does not have the authority in a study
session to make those types of decisions. It requires a public, open meeting. Chair Smith
stated that is Mr. Cohn 's interpretation; Ms. O'Brien agreed . Chair Smith stated he is not
arguing that point, but Mr. Bell cannot answer that question. Mr. Cohn stated he was
clarifying for Mr. Green. Ms. O 'Brien reminded Mr. Cohn that the Board was not in
discussion. Mr. Cohn stated he cannot find where the Board has the authority to hold an
Executive Session and asked Chair Smith to point out where that authority is given.
•
Mr. Green asked if Mr. Bell would like to respond to his question. Mr. Bell stated he would •
prefer not.
~
Chair Smith asked if a preliminary plat had been prepared. Mr. Bell stated it had been
prepared. Chair Smith asked if it had been submitted to anyone. Mr. Bell stated it is
technically called a Minor Subdivision plat, and it has been submitted. It has three signature
blocks; it has been signed by the Director of Public Works and the Director of Community
Development. To his knowledge, it has not been signed by the City Attorney's office. It
has not been recorded with Arapahoe County. Chair Smith asked who executed the
approval of the Minor Subdivision plat -the Manager or designee?
Ms. Reid stated that for clarification everyone is looking at Title 16-2-11. Mr. Bell stated that
it does state:
"A Minor Subdivision final plat that has not been recorded within 60 days after
approval by the City Manager or designee shall lapse and shall be of no further force
or effect."
Mr. Bell stated typically it is the three signatures previously mentioned that sign the Minor
Subdivision plat and it is then recorded with Arapahoe County.
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Chair Smith asked if the appeal from that process goes to Planning & Zoning Commission.
Mr. Bell stated that to his knowledge, it does not go to the Planning Commission. Referring
to Table 16-2-2.1, under Board of Adjustment and Appeals, Chair Smith asked Mr. Bell to
point out where it provides the Board with the authority to review Minor Subdivision plats.
Mr. Bell responded that it does not indicate any. Chair Smith stated that it is currently in
the City Attorney's office. Mr. Bell responded that was correct.
A person in the audience asked if they could address Chair Smith's question . Chair Smith
stated she could not.
Chair Smith stated he was going to suggest the Board adjourn to Executive Session. Ms.
O'Brien stated there were persons in the audience wishing to speak in support of the
decision.
~
William Curnow, 4500 Lambert Ranch Trail, was sworn in. Mr. Curnow thanked the Board
for listening to what has turned out to be a fairly emotional discussion. He is surprised that
something that is typically handled on an administrative basis in most cities is not handled
that way in Englewood. He and his partner purchased the property in 2006; they moved
forward with the subject property and other properties in Englewood based upon the
encouragement of many people in the City, including Gary Sears as well as the Mayor of
Englewood. They asked him to consider Englewood as place to build new homes to help
renovate some of the more depressed areas in the City. He had the option of going to a
number of other cities, specifically Denver, but made the decision to build in Englewood.
Mr. Curnow stated a person testified that he has no ties to the community. He actually has
owned property in Englewood for approximately 30 years. He has owned a number of
businesses in Englewood and he continues to own many properties in Englewood. He
owned Columbine Copy and Printing, The Sign Maker, and Columbine Mailing Services.
Chair Smith stated the Board must determine whether the City official made a proper
decision or not. He asked Mr. Curnow to restrict his presentation to what supports that
decision. Mr. Curnow stated he would.
Mr. Curnow continued; regarding the 9 parcels which were discussed, the largest parcel on
the block is nearly one-half acre in size. It is directly adjacent at 2929 South Ogden . That
particular lot is unlike many other lots in the City. He believes Ms. O'Brien is looking for a
mathematical average, which is called "mean." The mean is arrived at by adding up all the
lot frontages and then divided by the total number, which provides an average. That is an
arithmetic mean. There are many averages that can come into play: mean, medium, and
mode. By the other two methods, which are commonly accepted, the subject property falls
within that arithmetic mode and medium. Without going into a lot of detail, Mr. Curnow
testified that was the case.
17
A number of statements have been made concerning a large house being built on a small
lot and that the character of the neighborhood will not be sustained. The Board does not
approve Building Department plans and the Building Department enforces all plans as far as
square footage, setbacks, and any other typical item requiring City supervision. The
property is not receiving any variance from the Building Department.
Earlier Mr. Bell testified that he believed the average would work. Mr. Curnow stated the
lot square footages on the block are: 6,250; 6,075; 8,664; 7,220, 6,990; 6,990; 21,025;
6, 150; 6,250; and 5,000. The resulting subdivision of the lot would actually make the two
created lots the sixth and seventh largest lots on the block. Many lots on the block are
smaller. With regards to the characterization of large houses on the block, Mr. Curnow
stated there wasn't a person in the room who has seen the actual proposed houses to built;
they have not seen the plans; they have not asked to see the plans .
A number of people spoke out from the audience. Chair Smith instructed the audience to
be quiet; Mr. Curnow didn't interrupt them during their testimony.
Mr. Curnow continued; with regards to the homes on the next block that were built that did
not meet the general character of the neighborhood, Mr. Curnow testified that he did not
build either of those homes. He did build a home that was not discussed.
Chair Smith reiterated that his building nice homes doesn 't address the decision by the
Community Development Director. The Board must determine if the official followed the
policy, whether or not the policy is valid, and whether the Code authorized it.
Mr. Curnow testified he appreciates the position of the neighbors; but even though a single
house is preferred on the lot, he could build a much larger house on the lot than the
neighbors would want. His goal is to do something fairly modest on both lots.
Mr. Curnow stated he believes the subdivision is legal. He relied upon the City; he tore
down a functioning house based upon the City's requirement. He would not have torn
down the house if the subdivision was not going to be approved and not deemed legal.
Upon the City's assurances, he tore down the house . He is acting in good faith and asks
that the Board do so as well.
e
Doug Lillibrige started speaking. The recording secretary instructed him to go to the
podium and be sworn in . Mr. Lillibrige continued; what he wished to add does not address
the Code issue. He does have copies of the plans which he could show the Board; it is a
fairly modest home. Chair Smith instructed Mr. Lillibrige to be sworn in or stop talking.
e
Chair Smith stated that pursuant to the Board of Adjustment Handbook, page 7:
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"Executive sessions of the Board may be held if approved by a majority of the Board .
Executive sessions shall address only those items allowed under the Colorado Open
Meetings Law ."
In this case, it would be for legal advice .
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.
Chair Smith informed the audience that if the Board makes a decision, it will be discussed in
the regular meeting. City Council in the last few years changed the UDC, and the Board is
operating under a new set of rules .
Motion: THE BOARD CONVENE AN EXECUTIVE SESSION FOR LEGAL ADVICE
PURSUANT TO SECTION 24-6-402 (4)(B), C.R.S .
Moved by John Smith 111, Seconded by Marcia O 'Brien.
Vote: Motion carried by unanimous roll call vote (summary: Yes= 6) .
Yes: Carson Green, David Sprecace, Douglas Cohn, John Smith 111, Marcia O 'Brien,
Sue Purdy.
Absent: Miodrag Budisa .
The audience, staff, and recording secretary left the room.
The Board went into Executive Session at 8:35 p.m . The Executive Session ended at 8:45
p.m . The Board took a short recess. Chair Smith reconvened the Regular meeting at 8 :50
p.m . to discuss Case VAR2008-002. All Board members present before the Executive
Session were still present.
Motion: TO DISAPPROVE THE DECISION OF THE COMMUNITY DEVELOPMENT
DIRECTOR TO APPROVE THE PROPERTY SUBDIVISION (SUB2008-003) AT 2919
SOUTH OGDEN STREET RESULTING IN TWO PROPERTIES EACH WITH 48.23
FEET OF LOT WIDTH IN AN R-1-C ZONE DISTRICT.
Moved by Doug Cohn, Seconded by Carson Green
Chair Smith called for discussion. He stated the issue before the Board is the decision of
the Community Director to approve a property subdivision in a R-1-C zone district.
Ms. O 'Brien stated the issue discussed the majority of the evening, and what is put before
the Board as one of the basis for the decision, is the development policy written by the
19
Community Development Director after a study session, which is not open to the public as
she understands. Chair Smith stated it is open to the public. Ms. O'Brien stated City
Council suggested they wanted something in place for those lots that might be less than 5
percent smaller than the zone district's minimum lot width requirement. The Director is
using the policy as a basis for changing the UDC. Her understanding is there must be a
public hearing before the UDC is changed by City Council.
Chair Smith stated the basic rule is the UDC is an Ordinance; it can be repealed or
amended only by an Ordinance. The UDC contains certain criteria which allows
administrative process without being presented to the Planning Commission, Board of
Adjustment, or City Council. Varying lot lines is not one of those criteria. Without the
policy, there is nothing within the UDC which supports the granting of the subdivision.
Ms. O'Brien stated she be lieves the policy is insufficient; there needed to be a public
hearing and it should have been done by Ordinance.
Mr. Cohn stated the 5 percent option is not in this book; it was not codified. Chair Smith
stated that was correct; there are other 5 percent administrative processes staff is permitted.
Ms. O'Brien stated the 5 percent lot width adjustment is not contained in the UDC. Chair
Smith stated that was correct.
Ms. O'Brien stated there was still no public comment. As she puts herself in the position of
the decision maker, she does not believe the policy is valid.
Mr. Sprecace asked for clarification on the motion. Chair Smith stated the motion is to
disapprove the decision of the Community Development Director to approve a property
subdivision (SU B2008-003) resulting in two properties each with 48 .23 feet of lot width in
an R-1 -C zone district.
With no further discussion, the secretary polled the members' votes.
Ms. O 'Brien voted yes for the reasons she stated in discussion which were the policy relied
upon by the Director of Community Development, entitled "Lot Width Adjustment for R-1
District Subdivisions " is not, in her view, a valid method to change the UDC. Without a
change in the UDC, there is no basis to support the decision of the Community
Development Director.
Mr. Cohn stated he voted yes . City staff left a piece out of the action. The rule book has to
be defendable.
Mr. Green stated he voted yes , concurring with Ms. O 'Brien and Mr. Cohn. It is not a va lid
policy based on the fact there wasn't an acceptable process followed to change the UDC.
20
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• Mr. Sprecace stated he voted yes, concurring with Ms. O 'Brien and Mr. Cohn. While the
policy is a good goal to encourage high quality development, there is a process the City
need s to go through which allows public input to change the Ordinance which he does
not believe was followed. The policy does not have the force of the UDC because it is not
an Ordinance. He would like to encourage hi gh quality residential development in
Englewood; however, the process was not followed.
Ms . Purdy stated she voted yes , concurring with other Board members.
Chair Smith stated he voted yes. Had it been handled in the proper manner, he would
have voted to approve it. Approximately 2 feet is not that significant and he also supports
development within the City. However, there i s a process that needs to be followed. It is a
Minor Subdivision revision and it should follow those procedures. It can go to the Planning
and Zoning Commission for a public hearing.
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.
• 4. Approval of Minutes
•
H
Motion: TO APPROVE MINUTES OF APRIL 9, 2008 AS WRITIEN Moved by Carson
Green, Seconded by David 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 .
5. Approval of Findings of Fact
Motion: APPROVE FINDINGS OF FACT IN CASE VAR2008-001, 2303 EAST
DARTMOUTH AVENUE
Moved by Carson Green, Seconded by David 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.
6. Staff's Choice
21
Mr. Bell stated there are two variance cases scheduled for June. One case is for fence
height and the other case is for additional signage.
7. Attorney's Choice
Ms. Reid had nothing further.
8. Board Member's Choice
The Board had nothing further.
9. Adjourn
There was no further business brought before the Board. The regular meeting was declared
adjourned at 9:00 p.m.
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