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HomeMy WebLinkAbout2004-07-13 PZC MINUTES• • • CITY OF ENGLEWOOD PLANNING AND ZONING COMMISSION July 13, 2004 I. CALL TO ORDER A special meeting of the City Planning and Zoning Commission was called to order in the City Council Chambers of the Englewood Civic Center at 7:00 P.M., Chair Krieger presiding. Present: Absent: Staff: Adams, Bleile, Diekmeier, Krieger, Mueller, Roth, Welker Mosteller (excused) Anthony Fruchtl, Planner Tricia Langon, Senior Planner Assistant City Attorney Nancy Reid II. APPROVAL OF MINUTES June 22, 2004 June 29, 2004 Chair Krieger stated that the Minutes of June 22, 2004 were to be considered for approval. She asked if there were any comments or suggestions. Ms. Langon stated there are a number of small errors within the official trans c ript. Staff has provided the Commission with a list of the errors it found and suggested that the Commission add any additional corrections to that list. The transcript from the court reporter will not be changed; but the Commission can attach an addendum to the full packet of Minutes to indicate the errors that were found. Chair Krieger stated that even though there are a few errors, the transcripts are a reasonably accurate record of the proceedings. Chair Krieger asked th e Commissioners whether or not they wished to itemize each error, line by line. Ms. Reid stated if the Commission feels the transcripts reflect the statements that were made at the hearings and that no one was misquoted, the Commission can feel comfortable passing the Minutes as written. Discussion ensued. Ms. Mueller moved; Mr. Roth seconded: The Minutes of June 22, 2004 be approved as written. AYES: NAYS: ABSTAIN: ABSENT: Adams, Bleile, Diekmeier, Krieger, Mueller, Roth, Schum, Welker None None Mosteller The motion carried. H :\GROUP\File Log \2004-2 1 2840 S Sherrnan \Minutes.doc • • • Chair Krieger stated that the Minutes of June 29, 2004 we re to be cons ide red fo r approval. She asked if there were any comments or suggestions. Mr. Welker moved; Mr. Diekmeier second: Th e Minutes of June 29, 20 04 be approved as wr itte n. AYES: NAYS: Adams , Bleile, Diekmeier, Krieger, Roth , Sc hum, Welker None ABSTAIN: Mueller ABSENT: Mosteller The motion carried . Ill FINDINGS OF FACT Denver Seminary CASE #2004-05 Chair Krieger stated that Findin gs of Fa ct for Case #200 4-05 , D env e r Seminary, were to be considered for approval. Mr. Welker moved: Mr. Bleile seconded: The Findings of Fact for Case #2004-05, Denver Seminary be approved as written. AYES: NAYS: Adams, Bleile, Di ekmeier, Krieger, Roth , Schum, Welker None ABSTAIN: Mueller ABSENT: Mosteller The motion carried. IV. ZONING INTERPRETATION Telephone Poles as a Permitted Ext e rior Fence/Wall Material CASE #2004-21 Chair Krieger stated the applicant, Mark Swanson, is requ es tin g an inte rpretation of the Zoning Ordinance to p er mit th e use of t elephon e poles for exterior fence /wa ll us e. She asked that staff present the case. Mr. Roth stated the applicant is his neighbor; th e refor e, he mu st recuse himself from considering the application . Mr. Roth stepped down from the dais. Anthony Fruchtl, Planner was sworn in. Mr. Fruchtl stated the applicant is req uestin g that the Planning and Zoning Commission interpret that t elep hon e po les are rated as a standard type of material for both fence posts and retainin g walls. Staff rev i ewed the application and was unable to grant Mr. Swa nson permission to utilize t elepho ne poles as H :\GROUP\Fi le Log \2004-21 2840 S Sh e rrnan \Minute s.d oc 2 • • • fencing material or for a retaining wall because staff believes the intent of the Ordinance does not include telephone poles as a rated material for exterior fencing. Staff believes the intent is for fencing material typically found at a wood yard, such as cedar posts or pressure treated wood. Additionally, staff conducted a survey of seven major fencing contractors within the metro area to determine if telephone poles are a type of material typically utilized in the construction of fences and retaining walls. None of th e seven companies indicated they use telephone poles for fences or retaining walls. When staff was unable to grant the applicant's request, Mr. Swanson formally requested an interpretation from the Planning Commission. Staff offered the applicant the opportunity to submit literature stating telephone poles were typically used in the construction of fences and retaining walls; the applicant did not provide any literature. The request was also reviewed by Senior Planner Langon and Director Simpson who agreed telephone poles are not typically used as fencing material. Staff requests that the Planning and Zoning Commission formally interpret Table 16-6-1 , specifically the section regarding rated materials for exterior fence use. Mr. Adams asked how the telephone poles would be used to construct a retaining wall. Mr. Fruchtl stated he would prefer the applicant answer that question. Mr. Diekmeier asked if the issue was because the poles are not "rated." Mr. Fruchtl clarified; the issue for interpretation is whether or not telephone poles are a standard type of material utilized in the construction of fences and retaining walls. The Zoning Ordinance states Class 4 wood fences are to be constructed of material rated for exterior fence use . Telephone poles are not typically materials which are utilized as standard fencing material. Chair Krieger asked if the Commission was ruling on two separate issues -fences and retaining walls. Mr. Fruchtl stated it was one issue; Table 16-6-1 is for the classification of fences, walls, and barriers. Mr. Schum asked whether the City currently allows railroad ties to be used. Mr. Fruchtl stated that material has not been presented to staff for an interpretation . Mr. Schum stated railroad ties use the same type of preservative, creosote, on the wood. Mr. Welker clarified that a retaining wall is considered a "wa ll " in the Fence Ordinance . Mr. Fruchtl stated that was correct. Chair Krieger clarified that the Commission is ruling on the issue in general, not specifically for the applicant. Mr. Fruchtl stated that staff is asking for clarification of the Fence Ordinance as to what materials can be used to construct fences and retaining walls. Ms. Reid stated in this case the Commission is acting in a quasi-judicial manner. The applicant is appealing the decision of staff that telephone poles are not rated fence material under the Ordinance. The Commission's role is to interpret the Code and determine if telephone poles should be rated as standard fencing material. H:\GROUP\File Log \2004-21 2840 S Sherman \Minutes.doc 3 • • Mr. Schum asked if the Commission needed to determine whether or not tel ep hon e poles have the same fire rating as other fence materials. Ms. Reid stated the Commission is determining whether or not telephone poles should be used to construct a fence or retaining wall. The Commission must consider the spirit and intent of the Ordinance. The word "rated" should not be construed as a rating for fire, weight, or grade. For clarification, the word "considered" should be used rather than "rated." Mr. Adams stated there are a lot of changes in architectural trends. If an architect proposed a good retaining wall constructed of telephone poles could the Commission reconsider due issue. Ms. Reid stated that is for Commission discussion after testimony has concluded. Chair Krieger stated once the Commission rules the interpretation stands. All the Commission is determining is whether telephone poles are a permitted material for exterior fence use, not whether they are attractive or healthy. Discussion ensued. Mr. Schum asked whether telephone poles have been used for fencing and/or retainin g walls anywhere in the City. Mr. Fruchtl stated he believes telephone poles were used in the construction of the train depot. He received an e-mail from Chief Building Official Lance Smith stating those telephone poles were accepted through the Uniform Building Code (UBC) because they were stamped by a licensed engineer and were used in the alternative compliance section of the UBC. The UBC does not govern or dictate the Unified Development Code which is another reason why staff is before the Commission seekin g an interpretation. Mr. Diekmeier asked for clarification; is the Commission ruling on the suitability or the standardness of telephone poles. Mr. Fruchtl reiterated that staff is asking the Commission to determine whether or not telephone poles are a material that is generally accepted as an industry standard type of material for construction of a fence and retaining wall. Ms. Reid stated the Commission 's job is to interpret the Unified Development Code. The Commission should consider the "big picture." The Board of Adjustment considers individual cases that doesn 't seem to fit the "b ig picture." The Board 's ruling in a variance is for an individual property; the Commission 's ruling in an interpretation sets the standard for everyone. Mark Swanson, 2836 South Sherman Street, was sworn in. Mr. Swanson stated he wants to use the telephone poles as supporting posts for a standard cedar fence . The size of the posts are within inches of the size of a standard fence post. The upper part of the telephone pole would be used and are creosote treated so they don't rot in the ground. He needs to construct a new fence because the fence that existed when he purchased the house has rotted off at ground point. He is recycling the telephone poles rather than throwing them in the dumpster. He understands that standard posts are not tapered, but doesn't understand how tapering comes into the definition of the type of wood used. • Mr. Swanson continued; with regards to "rated", in the UDC it states that any definitions not covered in the Code can be found in the Webster's Dictionary. The Webster's H:\GROUP\File Lo g\2004-2 1 2840 S Sherman\Minutes.doc 4 • • Dictionary does not say anything about aesthetic qualities of wood. It states "grade of quality." If a telephone pole has a grade that is quality enough to han g power lines around the City without faltering, Mr. Swanson stated he believes they would suffice in building a fence. In the fence construction, he will be using uniform poles within inches of posts he can purchase at a supply store. Fencing materials purchased at a supply store are pressured treated. When he received the poles from Xcel Energy, he had to sign a disclaimer that if he used any pressure treated wood he could not sue Excel Energy. The poles he wishes to use are not pressure treated, and cannot cause the injury or death that pressure treated wood can. These poles are safer than what the City wants him to us e; he is recycling the wood; and the poles are of similar size as those purchased at a supply store. The fence will be uniform with standard construction methods; a post every eight feet. Mr. Bleile asked if the posts would be visible from the yard or the street. Mr. Swanson responded; in the alley they will be visible from the alley and the interior posts will be visible within the property. Mr. Swanson stated he spoke with Lance Smith in the Building Department when he pulled the two original building permits, and Mr. Swanson stated that Mr. Smith indicated that he didn't have a problem with the use of telephone poles. Mr. Schum stated he drove by the property and the posts he saw seem to be larger than 8 to 10 inches in diameter; they look closer to 12 inches. Mr. Swanson stated the poles are tapered and he plans to use more uniform posts that are closer to 8 inches from ground level up . Mr. Schum asked Mr. Swanson to clarify whether or not he believes a creosote treated telephone pole is as smooth and clean as a planed 4x4 he would purchase at a hardware store. Mr. Swanson responded that some are; some aren't. Creosote won't cause the injury that pressure treated wood can cause. Mr. Schum asked if he has seen any studies on that statement. Mr. Swanson stated no, but he had to sign a disclaimer from Xcel Energy that he was aware of the possibilities of injury using pressure treated posts for fences and that they were not liable for the use of that material for fences. Chair Krieger stated for the record that the old pressure treated wood, which has been discontinued, contained arsenic which was determined to be dangerous. Current poles would not contain arsenic. Mr. Swanson stated Xcel Energy had no disclaimer on creosote treated wood. Mr. Schum asked for clarification on the disclaimer. Mr. Swanson stated it was a disclaimer that he would not sue Public Service for injuries caused by pressure treated wood. A disclaimer was not required for creosote treated wood. Mr. Diekmeier asked staff if the 15 foot poles required an engineer stamp to build a retaining wall. Mr. Fruchtl stated that anything under 4 feet does not require a engineer's stamp; anything above 4 feet requires an engineer's stamp. • Discussion ensued. H :\GROUP\File Log\2004·21 2840 S Sherrnan\Minutes.doc 5 • • • Mr. Schum asked if the poles for the retaining wall will be placed vertically or horizontally . Mr. Swanson stated they would be horizontal, and it would only be a 4 foot wall. Mr. Swanson submitted photos into the record for the Commission 's consideration. Mr. Swanson stated staff instructed him that materials must be designed specifically for landscaping or fencing; otherwise it is not permitted. The train depot is lined with old railroad ties which were designed to carry a train and have nothing to do with landscaping. The landing is also held up with telephone poles. The depot is Englewood's historic building and it doesn't seem to bother anyone that the retaining walls are built out of railroad ties and the support of the historic depot is held up by telephone poles. He stated he didn't understand the severity of the problem for him to use telephone poles on South Sherman. Ms. Mueller responded; the difference is the City has a new Unified Development Code and the depot was constructed under the old Code. Mr. Swanson asked if the depot had a Certificate of Occupancy (CO); he stated he didn 't believe so because it has never been finished. If it doesn 't have a CO, everything needs to be ripped out. Mr. Swanson asked what the word "rated" means. He believes it means the wood is rated for the climate. He doesn 't see any aesthetic meaning. Chair Krieger clarified that the Commission is not ruling on aesthetics, but rather whether the poles are a standard fencing material and whether it is an appropriate use . As a point of order, Ms. Reid instructed the applicant that the Commission may ask him questions, and he may ask rhetorical questions of the Commission. It is not a give and take discussion. The purpose of the meeting is for the Commission to hear his argument for his issue; the Commission is not required to answer any questions. She instructed him to make his statements and arguments for his case, and the Commission will then discuss the request. Mr. Swanson stated it would have been better if he had had guidelines on the m ee ting procedures so he could appropriately approach the Commission. Referring to the photos, Mr. Swanson stated they show fences utilizing telephone poles and the depot. Diana Roth, 2830 South Sherman Street, was sworn in. Ms. Roth stated her concerns are not with the aesthetic value of the telephone poles; rather her concerns are with regard to safety. She stated she conducted some research on what the poles are generally preserved with. They have a preservative on the poles so they will stand up to the weather; the article states the most common preservative is ACZA which is a combination of cooper oxide, zinc oxide, and arsenic pentoxide in a solution of ammonia and applied under pressure to fully penetrate the wood. If the poles contain arsenic and are sawed to a certain size, she is concerned about arsenic floating into her yard. There is also a baby that lives in an adjacent house. She suggested the poles be tested to determine if they contain arsenic before the Commission grants the request. H :\GROUP\File Lo g\2004-21 2840 S She rman \Minutes.doc 6 • • • Ms. Roth stated if the poles are contaminated, she is concerned about the sawdust getting into the ground. It will wash down into the street and storm sewers. If the Commission allows the use of telephone poles, Ms. Roth stated she is c oncerned how the City will ensure each and every pole has been tested for safety. Ms. Roth thanked the Commission for their time. Mr. Adams asked if arsenic is still being used to preserve the poles. Mr. Welker stated they no longer contain arsenic, but there is plenty of arsenic material around. There are a number of creosote telephone poles within the City. They are no rougher than an old fence and aren't any more or less safe than regular fence poles. In general the telephone poles are structurally adequate for retaining walls; they are larger in diameter which shouldn't be an issue. The tapering shouldn 't be an issue because masonry and stucco columns are tapered. Chair Krieger stated that in general a wood fence post is smaller than 8 inches. Mr. Schum stated that transformers are on the top of telephon e poles. Typically transformers carry PCBs which are very dangerous . It makes sense that the top portion of the poles could be quite dangerous from leaky transformers. Research also indicates th at creosote is a carcinogenic. Also the telephone poles do not meet the uniformed style of other fence posts. Mr. Welker stated that historically the City has permitted the use of creosote treated 8x8 or 8x10 timbers that were used as railroad ties. Discussion ensued. Mr. Diekmeier stated he can't find a structural or aesthetic reason to deny the applicant. The only question is whether or not it is standard, and he believes it is close to standard. If the Commission denies the applicant, he urged the applicant to take his case to th e Board of Adjustment. It seems like a reasonable request. Mr. Welker stated he believes telephone poles are an acceptable method of constructing retaining walls . It is much stronger. Mr. Bleile stated he agreed. Chair Krieger agreed that railroad ties are a very standard material for retaining walls. Mr. Welker stated he has a problem with retaining walls being grouped in with fences. Mr. Bleile and Chair Krieger agreed. Discussion ensued. Mr. Welker moved: Mr. Diekmeier seconded: Re cy cled telephone poles, creosote treated, are an acceptab le material for fences and retaining walls . AYES: NAYS : Adams, Bleile, Diekmeier, Krieger, Mueller, Welker Schum H:\GROUP\File Log\2004-2 1 2840 S Sherman \Minutes .doc 7 • • • • ABSTAIN: ABSENT: None Mosteller The motion carried. Mr. Swanson thanked the Commission for their time and consid e ration of his request. Mr. Bleile asked if he was going to wait another year and a half to build th e fen c e. Mr. Swanson responded no and asked for the basis of the question . Mr. Bleil e stated it was based on the number of times for which the permit was applied. Mr. Sw an son st ated his partner passed away and he is the care giver to his partner's handi ca pp ed w ife. Mr. Swanson stated he had a question for the Commission . Ms. Reid remind ed th e applicant of the meeting procedures. Mr. Swanson asked when he was p e rmitte d t o ask his qu estion s. Chair Krieger stated th e Commission is not available for public interac tion; qu es tions can b e addressed to City Council at a public meeting. Mr. Roth rejoined th e Commissioners at the dais. V. PUBLIC FORUM No one was present to address the Commission . VI. DIRECTOR'S CHOICE Ms. Langon discussed th e c olor zonin g map, th e listin g of library m ateri als, an d th e ca le n da r included in the packet. Ms. Langon discussed the APA Colorado trainin g broc hur e contained in the Commission 's packet. Discussion ensued . It w as th e c onsensus of th e Commission for staff to pursue a training module with a speaker. Ms. Langon stated there was currently nothing on the agenda for July 2 0 and asked if th e Commission wanted to meet. It was the consensus of the Commission not to meet on Jul y 20. Ms. Langon stated Mike Flaherty, Assistant City Manager will be prese nt at the Au gust 1 7 study session to discuss the 2005 Multi-Year Capital Project and the c ity bud ge t process . Regarding zoning design ation for internet sales drop-off use, Direc tor Simpson approv ed the use in the B-2, 1-1 , and 1-2 zone districts. Ms. Langon also stat ed th e m ajor subdi v ision ordinance states that whenever there is subdivision of land that requires d edication of land for public purposes, easement or public areas that it requires a major subdivision. Under the UDC, most subdivisions are minor subdivisions. A major subdivision is required when there is dedication. The difference between an easement and a d e dicati o n is that th e City takes control of the property with a dedication . An easement still rem ain s w ith the prop e rty owner and a particular entity only has the ri ght to use it. Currentl y, Xce l Ener gy is st artin g to require easement at the front and rear of properties for futur e lines . Curr entl y it w ill tak e approximately 6 months for every subdivision to go through the major subdivision process due to easements. Staff recommends that by policy the word "easement" be removed H :\GROUP\Fil e Lo g\2004-21 2840 S Sh erm an\Minutes .doc 8 ' .. • • • from the major subdivision language . The ordinance would still require a major subdivision if there is dedication for public right-a-ways or public areas. Discussion ensued. At the request of Council, staff will be bringing forward a UDC amendment regarding the Farmer's Market. Council enacted a moratorium on enforcement because an amendment to the UDC will take a number of months. The Commission will also be considering an amendment to the UDC for auto sale uses. Mark Graham will be at the August 17 meeting to update the Commission on that issue. A study session on the Fence Ordinance will be held on August 3 . Due to Mr. Adams' resignation, which is effective July 22, Council will consider Stephen Hunt's, the Commission's alternate, appointment on August 2. If appointed, Mr. Hunt will be an official member for the August 3 meeting. The Commission wished Mr. Adams well and welcomed Mr. Hunt to the Commission. Mr. Welker stated he appreciates Council appointing an alternate to the Commission so the Commission does not have to wait 6 months for a new member. VII. ATTORNEY'S CHOICE Ms. Reid stated she had nothing to bring before the Commission VIII. COMMISSIONER'S CHOICE Mr. Bleile asked staff the status of the Commission touring the new light rail facility. Ms. Langon stated there was a tour for Council, but she will investigate arranging a tour for Commissioners. Mr. Bleile asked if staff knew what was happening at Belleview and Clarkson ; there are signs that it will be under construction until October. Ms. Reid stated that part of the area is in Cherry Hills Village and part is in Englewood. Ms. Langon stated she would check with the Public Works Department. Mr. Bleile stated the Public Works Department did an excellent job paving his street; it was completed within a very short amount of time. Mr. Schum asked if the Bates Street Light Rail Station is still included in FasTracks. Chair Krieger stated the station is shown on the map. Mr. Schum stated the literature he has received from RTD does not discuss a new station at Bates. Ms. Langon stated she would look into the matter. The meeting adjourned at 8:55 p.m . H :\GROUP\File Lo g\2004·21 28 40 S Sherm an\Minutes.doc g