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HomeMy WebLinkAbout2009-12-09 BAA MINUTES• •• • CITY OF ENGLEWOOD BOARD OF ADJUSTMENT AND APPEALS MINUTES DECEMBER 9, 2009 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: Douglas Cohn, Carson Green, Marcie O'Brien, John W. Smith Ill , Sue Purdy, David Sprecace, Jordan May (Alternate) Absent/Unexcused: 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 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 variance should be granted ; proponents will be given an opportunity to speak; opponents will address the Board; and then staff will address the Board . Staff will give a preliminary overview of the variance before testimony is taken . ttll 3. Public Hearing: Case #VAR2009-007 Lawrence and Abigail Moskow 1170 West Amherst Avenue -1 - • • • Chair Smith stated he had proof of posting and publication. He introduced the case by stating it is a variance to exceed the six foot maximum fence height by four feet with a lattice type fence for a length of fourteen lineal feet along the west side lot line . This is a variance to Table 16-6-6.2 of the Englewood Municipal Code . Brook Bell , Planner was sworn in. Mr. Bell provided an overview of the property and neighborhood . Mr. Bell noted the property owners of 1150 East Amherst Avenue emailed a letter objecting to the variance on December 8; a copy of the letter was given to the Board . lt] Mr. Lawrence Moskow, 1170 East Amherst Avenue, was sworn in . Mr. Moskow testified the house was remodeled in 2000 and a water feature was added to the backyard. At that time the house at 1150 East Amherst had windows on the rear of the house . That house was remodeled as well; the rear windows were changed to a door, and a landing and stairs were added exiting to the rear yard. When new owners moved in to 1150 East Amherst, they used the landing as a place to grill, smoke cigarettes, and congregate . They could look directly into his kitchen from the landing. Mr. Moskow referred the Board to the photos in their packet and discussed the views seen from his yard and the neighbor's yard. He testified that the trellis was added because he and his wife wanted privacy from the neighbors peering into their house. They attempted to plant a tree, but the water feature prevents a truck from entering the rear yard to plant another lilac bush . He attempted a spruce tree but it is not wide enough to block the view. The trellis was added , along with silk ivy, to shield the view and to be consistent with the surrounding landscaping. The surrounding lilac bushes are taller than the trellis. There is no space between the fence and the water feature which is the reason why another lilac bush could not be added. Mr. Moskow testified that the unique circumstances are that the neighbor has a direct view into his kitchen and there were no other alternatives to block the view. The trellis has no effect on the public, health and safety or welfare . It is barely visible from the street. Mr. Moskow stated he does not believe it has any impact on the neighborhood, nor does it impair the use of the adjacent property. The property owners moved out of town in October; their new tenant signed a two year lease and does not object to the variance . She believes it adds a lot of privacy . The variance is not self-imposed because the water pump was installed prior to the neighbor building the porch. If he had known the porch was going to be built, he would have planted additional lilacs to provide additional screening . They attempted to be consistent with the existing landscaping by putting the ivy on the trellis. Mr. Moskow answered questions from the Board. Chair Smith stated for the record that an email, dated September 8, 2009, was submitted by staff from Blake and Gray Busch opposing the variance The Busch's state in the email that they are the owners of 1150 East Amherst Avenue . The Busch 's are not in attendance. -2- • Mr. Sprecace stated a variance is a "last resort" because it is permanent, and he does not want to burden future property owners with something that "runs with the land ." He asked the applicant if he has pursued every alternative. Mr. Moskow responded he believes he has; he proceeded to describe the kitchen, four glass doors facing the backyard which do not have window coverings, and how the family enjoys viewing the landscaped backyard from the kitchen. • • Ms. O'Brien asked Mr. Moskow to clarify the width of the glass doors and why blinds couldn't be installed . Mr. Moskow estimated the doors were a total width of 24 feet and reiterated that they enjoy viewing the backyard without a visual obstruction. He thought it was better to put something on the outside of the house and more cost effective to construct the trellis. At the time, he didn't realize it was against Code . Mr. Cohn questioned the ownership of the fence. Mr. Moskow responded; it is a shared fence. The fence was in place when he purchased the home in 1991; a new section was constructed by the neighbor approximately six months ago but is not affected by the trellis. Mr. Moskow believes the entire fence is built on property line . Chair Smith asked Mr. Moskow to clarify the renovations on 1150 East Amherst Avenue . Mr. Moskow explained that previously there was a window where the door currently exists and the fal;:ade was flat; there were no stairs or landing. The previous owner did the exterior renovations approximate six years ago; there were no issues with the previous owner. Chair Smith asked the proximity of the bottom stair to the applicant's property line. Mr. Moskow directed the Board 's attention to Photos 1, 2, and 3 which were taken from the neighbor's backyard with the tenant's permission . Ms. O'Brien asked Mr. Moskow to explain why it made a difference having the windows on the neighbor's house versus the door. Mr. Moskow stated the neighbor's windows face south into her backyard; the landing allows someone to stand on it and look back to the east into Mr. Moskow's house . Mr. Moskow stated it became uncomfortable when the neighbor starting telling him what was happening in his own home; that's when he decided something needed to be done to block the view. There is no issue with the current neighbor, who is renting the home. In fact, she signed a statement supporting the variance . Ii] Mr. Bell stated it is unclear who built the original fence; the Building Department property files do not contain a fence permit for either address. There is a permit for the newer section of fence for 1150 East Amherst Avenue. The Arapahoe County Assessor's records show that the current owner of 1150 East Amherst purchased the property in November 2006. Mr. Bell pointed out the staff report stated that the property most affected by the variance, 1150 East Amherst Avenue, had no objection to the request; however, the property owners subsequently submitted the letter objecting to the variance . -3- • • • The stairs and landing appear to meet setback requirements. Mr. Bell could not speak to whether or not they were built to Building Code . l?l] Mr. Cohn asked if a trellis was considered a fence. Mr. Bell responded yes; the terms are interchangeable . Ms . Reid stated pursuant to the Code, materials are defined for fences and fence permits. Mr. Bell stated there are regulations for fence heights and materials; there is an exception for trellis and gate features which are permitted to be eight feet in conjunction with a gate. Discussion ensued regarding the definitions of trellis and fence. Mr. Bell stated he believes lattice is probably a more accurate term than trellis. Mr. Bell read the definition of a fence from the UDC. 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 VAR2009-007, 1170 EAST AMHERST AVENUE, BE GRANTED A VARIANCE TO EXCEED THE SIX (6) FOOT MAXIMUM FENCE HEIGHT BY FOUR (4) FEET WITH A LATTICE TYPE FENCE FOR A LENGTH OF FOURTEEN (14) LINEAL FEET ALONG THE WEST SIDE LOT LINE PER THE ATTACHED SITE PLAN . THIS IS A VARIANCE TO TABLE 16-6- 6.2 OF THE ENGLEWOOD MUNICIPAL CODE. Moved by Douglas Cohn Seconded by Marcie O'Brien. Ms. O'Brien stated there are other means to provide privacy than adding height to a mutual fence . The issue is moot, and the lattice should be removed. Ms . Purdy stated the applicant should not have to become a hermit in his home and not be able to enjoy the view of his backyard because he has an intrusive neighbor. Mr. Sprecace stated variances remain with the property. There are easier, conforming ways to solve the problem. Mr. Cohn stated a 10-foot lilac bush would solve the problem . With no further discussion, the secretary polled the members' votes . Mr. Green voted no stating no unique physical conditions exist on the property. It is not uncommon for property owners to be able to see into their neighbors' yards. There are other means to address privacy than adding four feet to the fence . It is not consistent with the intent of the zone district. It is against the Unified Development Code and there are no justifications . It will impair the use of the adjacent conforming property. It is self-imposed because there are other options to address the issue . -4- • • • Ms . Purdy voted yes . The applicant does not need to be a hermit in his own house because people mistreat his privacy. Mr. Sprecace voted no concurring with Mr. Green . Further, the request does not meet any of the criteria. There are no unique physical conditions. The variance is not consistent with the zone district regulations to secure the welfare of the neighbors. The variance does impair the use or development of conforming properties because the variance runs with the property and is on the fence which separates the two properties. By its very nature it permanently impairs the use of the adjacent conforming property. The variance is self-imposed; there are other ways in which to address the issue than granting a variance which could potentially open the door to other citizens wanting 10 foot fences . Ms. O'Brien voted no concurring with Mr. Sprecace. Mr. Cohn voted yes . The unique physical condition is the conflict with the neighbor. There are no issues with the public health, safety and welfare . It does not impair the use or development of the neighboring property any more than a 10 foot bush would impa i r the neighboring property. Chair Smith voted yes . The unique condition is the neighbor built a porch which allowed them visual access to the applicants' property and had the neighbor been more considerate the variance would never have been requested. The applicant met the second criteria the least intrusive way to solve the problem. It will not permanently impair the use or development of adjacent conforming properties because the properties are already developed including the offending porch. It is not a self-imposed difficulty or hardship; it was a difficulty created by the neighbor. Vote: Motion failed by roll call vote (summary: Yes= 3, No= 3, Abstain= O}. Yes: Douglas Cohn, John W. Smith Ill, Sue Purdy. No: Carson Green, Marcie O'Brien, David Sprecace. The Chair instructed the applicant to contact staff for any additional or necessary information. llll 4 . Staff's Choice There are no cases scheduled for January . 5. Attorney's Choice Ms. Reid had nothing further . llll 6. Board Member's Choice The Board asked Ms. Reid to draft a letter to City Council for Chair Smith's signature requesting the alternate member be permitted to participate and vote in hearings when a member is not present . Ms . Reid will email a draft to the Board for their review . -5 - • The Board and City Attorney briefly discussed the settlement of a lawsuit involving the City . 7 . Adjourn The meeting adjourned at 8 :15 p.m . • • -6-