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HomeMy WebLinkAbout1987-06-10 BAA MINUTES• • • I. BOARD OF ADJUSTMENT AND APPEALS ENGLEWOOD, COLORADO JUNE 10, 1987 CALL TO ORDER. /{V 9 c The regular meeting of the Englewood Board of Adjustment and Ap- peals was called to order by Vice Chairman Brown at 7:30 p.m. Members Present: Members Absent: Also Present: Seymour, Hallagin, Fish, Lighthall, Doyle and Brown. Welker. Dorothy Romans, Staff Advisor Mary Alice Rothweiler, Planner Nancy Reid, Assistant City Attorney Chairman Brown stated that there was a quorum of six members, and five affirmative votes would be required to grant a variance or appeal. The Board of Adjustment and Appeals is authorized to grant or deny a variance by Part 3, Section 60 of the Englewood Municipal Code. II. APPROVAL OF MINUTES • Chairman Brown stated that the Minutes of May 13, 1987, were to be considered for approval. BOARD MEMBER HALLAGIN MOVED THAT THE MINUTES OF MAY 13, 1987, BE APPROVED AS WRITTEN. Mr. Seymour seconded the motion. Upon a vote, all six members present voted in the affirmative, and the Chairman ruled the Minutes were approved as written. III. APPROVAL OF FINDINGS OF FACT. BOARD MEMBER SEYMOUR MOVED THAT THE FINDINGS OF FACT IN CASES #14-87, 15-87, AND 16-87 BE APPROVED AS WRITTEN. Mr. Hallagin seconded the motion. Upon a vote, all six members present voted in the affirmative, and the Chairman ruled the Findings were approved as written. * * * * * IV . Public Hearings. The Chairman opened the public hearing for case #15-87. He said the Board is authorized to grant or deny a variance by Part 3, Section 60 of the Englewood city Charter. He said he had proof - 1 - • • • of posting and publication, and asked that the staff identify the request . Dorothy A. Romans, Acting Director of Community Development, was sworn in for testimony. She stated that the applicant, Robert s. Keller, was requesting a variance for property located at 4 77 East Cornell Avenue to permit construction of a six foot solid wood fence which would extend to three feet from the sidewalk abutting South Pennsylvania Street. This is a variance from the Comprehensive Zoning Ordinance, Section 16.4-17 c (4), Fences in Residential Districts. This section of the Ordinance limits the height of a fence in this location to 42 inches and requires the fence to be at least 50% open. The Chairman asked that the applicant come forward for testimony. Robert s. Keller, 477 East Cornell Avenue, was sworn in for tes- timony. He submitted a letter, Ex. I, explaining his reasons for requesting the variance. He stated that his main concern is the safety of his children and his property. His neighbors have no objection, and much of the surrounding land is vacant. He said that he is concerned about the safety of his back yard because of the many strangers in the neighborhood who use the nearby park. If there were a six-foot fence protecting his children, they could play in the yard without constant supervision. He noted that he shares the house with his brother, and his wife watches both their own and his brother's children. Mr. Keller said that, while 90% of the people passing his house are fine, some are not, and there has been minor vandalism to his property. He said that the fence would be 27 1/2 feet from East Cornell Avenue, and 3 feet from the sidewalk on South Pennsylva- nia Street. In his opinion, there would be no visibility problem at the stop sign. He said there is heavy traffic in the area in the summer, especially on weekends. There were no other speakers for or against the variance. The staff had no further comments, the staff report was incorpo- rated into the record, and the public hearing for Case #17-87 was closed. BOARD MEMBER SEYMOUR MOVED AND BOARD MEMBER HALI.AGIN SECONDED, THAT A VARIANCE BE GRANTED TO ROBERT S. KELLER, FOR PROPERTY LO- CATED AT 477 EAST CORNELL AVENUE, TO PERMIT CONSTRUCTION OF A SIX FOOT SOLID WOOD FENCE WHICH WOULD EXTEND TO THREE FEET FROM THE SIDEWALK ABUTTING SOUTH PENNSYLVANIA STREET. THIS IS A VARIANCE FROM THE COMPREHENSIVE ZONING ORDINANCE, SECTION 16.4-17 c (4), FENCES IN RESIDENTIAL DISTRICTS. THIS SECTION OF THE ORDINANCE LIMITS THE HEIGHT OF A FENCE IN THIS LOCATION TO 42 INCHES AND REQUIRES THE FENCE TO BE AT LEAST 50% OPEN. Discussion followed. The members locked in their votes and gave their findings as follows: -2 - • • • Mr. Seymour said the variance was not in the best interest and safety of the general public, and he voted "no" • Mr. Hallagin said the fence would present a safety hazard and is contrary to the Comprehensive Zoning Ordinance, and he voted "no". Mr. Fish said the fence would not be a hazard to safety or traf- fic, and voted "yes". Ms. Lighthall voted "yes", saying there is a hardship. difficult location and Mr. Keller has a young family. opinion there was no safety hazard. It is a In her Mr. Doyle voted "yes", saying there would be no safety hazard. Mr. Brown voted "no" because, in his opinion, there would be a safety hazard. The votes were displayed and Ms. Lighthall, Mr~ Fish and Mr. Doyle voted in favor of the motion. Mr. Brown, Mr. Hallagin and Mr. Seymour voted in opposition to the motion. The Chairman ruled the variance request was denied because five affirmative votes are required to grant a variance, and only three affirmative votes were cast . * * * * * The Chairman opened the public hearing for Case #18-87, stating he had proof of publication, and asking that the staff identify the request. Dorothy Romans stated the appellant, Irving Li verant, was requesting an appeal from the Chief Building In- spector's decision denying a renewal of a Class D Contractor's License (#7662). This appeal procedure is provided for in the Englewood Municipal Code, Section 5-7-6B. Walter Groditski, Code Administrator, was sworn in for testimony. He stated that the Englewood Municipal Code requires valid City Contractors' licenses before companies or individuals can con- tract for and do work. He said that Mr. Liverant has disregarded the required permits and inspections. Gary Yoder, Chief Building Inspector, was sworn in for testimony. He stated that the case began with a Stop Work Order on siding application. When Mr. Liverant came in to obtain a permit for the job, it was discovered that his license had expired. Mr. Yoder then discovered that Mr. Liverant had been granted a proba- tionary license in 1986 because of similar violations. Because the pattern of beginning work without a permit was repetitive, and because Mr. Liverant had been on probation before, Mr. Yoder refused to renew the contractor's license • It was further discovered that there are 21 outstanding permits for which the contractor has never requested inspections. In -3 - • • • addition, in at least four instances, the work has been under- valued, reducing the fees and taxes paid to the City. In one situation the valuation placed on the job was $3900, but the actual contract price was $14,000. Mr. Yoder said that, in his opinion, there is no excuse for such undervaluation. A contrac- tor knows what the contract price is at the time the application for a permit is submitted. Mr. Yoder said that, in his opinion, there is more than enough evidence to justify the refusal to renew Mr. Liverant's license. He listed the following justifications. 1. Continual beginning of work without permits, even after being placed on probation for doing so. 2. Repeatedly not calling for inspections when the work was completed. 3. Undervaluation of contract price in at least four cases. In response to questions from the Board, Mr. Yoder said that it is fairly common for contractors to obtain licenses and have crews working for them who do not have licenses. The purpose of licensing is to give procedures and guidelines for the profes- sion, to provide inspections, and to ensure that work is per- formed properly. Moneys paid are used for materials, to protect from liens, to assure that jobs are correct and complete. In addition, citizens' money and property are protected. Contrac- tors working without a license can be fined or imprisoned. The Chairman asked that the applicant come forward for testimony. Mr. Irving Liverant, 1900 East Girard Place, Englewood, was sworn in for testimony. He said he is not in the habit of breaking the law. He said that he told his people to call for inspections, and what happened then he didn't know. He said that when the recent Stop Work Order was issued, he had been ill, and had trusted others to obtain the permit. Mr. Liverant said that his occupation is contracting and that he runs a stable business. He said that in the future he would do things correctly. In response to questions from the Board, Mr. Liverant said that the applicators are supposed to call for inspections when the work is completed, and they are also supposed to obtain the per- mit. He said he understands that he is the person responsible, and would see to it that permits are obtained and inspections requested in the future. Mr. Liverant said that he has been in business since 1950. He does not obtain licenses in Cities until he has work contracted. Mr. Liverant stated that he has worked in Englewood less than half the years since 1950. Mr. Liverant stated that most contractors undervalue their con- tract prices. In his opinion, they usually list materials only, in spite of the fact that the permits clearly state that the valuation is based on the entire contract price. He said he is 70 years old and depends on the business for his living. He will correct the problems, he said. - 4 - • • • Mr. Yoder returned for further testimony. He repeated that con- tractors are aware before they obtain their permits what the con- tract price is. Any under-reporting is intentional misrepresen- tation. Very accurate records are kept by the Department of Building and Safety, and if inspections had been requested in the 21 cases, there would have been records of them. He said it is not common for the contract price to be undervalued on the permit application. Mr. Doyle asked if the revenues which were not paid could be col- lected. Mr. Yoder said every effort would be made to collect the money due the City. He noted that the Finance Department will be investigating the case. Mr. Liverant said in rebuttal that some people pay cash, and financing is supplied by his company at reasonable rates of from 10% to 12%. He said he lives in the City and will do better in the future. The staff report was made part of the record of the public hear- ing and the staff had no further comments. The Chairman closed the public hearing on Case #18-87. BOARD MEMBER FISH MOVED, AND BOARD MEMBER SEYMOUR SECONDED, THAT AN APPEAL BE GRANTED TO IRVING LIVERANT FROM THE CHIEF BUILDING INSPECTOR'S DECISION DENYING A RENEWAL OF A CLASS D CONTRACTOR'S LICENSE (#7662). THIS APPEAL PROCEDURE IS PROVIDED FOR IN THE ENGLEWOOD MUNICIPAL CODE, SECTION 5-7-6B. The members locked in their votes and gave their findings as follows. Mr. Seymour said he had voted "no" because, in his opinion, the Code had been correctly interpreted by the Chief Building Inspector. Mr. Hallagin said there had been too many violations, and he con- curred with Mr. Seymour. Mr. Fish said he voted "no" because there was ample evidence of substantial, intentional violations. Ms. Lighthall voted against the appeal, saying the Chief Building Inspector acted correctly and within his authority. She said there was substantial evidence of violation, if not fraud. Mr. Doyle voted "no", concurring that the Chief Building Inspec- tor's facts indicate an appeal should be denied. Mr. Brown stated that after weighing the evidence and listening to the testimony, he was of the opinion that an appeal should not be granted • When the votes were displayed, all six members had voted against the appeal, and the Chairman ruled the appeal was denied. - 5 - • • • * * * * * The public hearing was opened for Case #19-87. The Chairman stated he had proof of posting and publication and asked the staff to identify the request. Mary Alice Rothweiler, Planner, was sworn in for testimony and stated that the applicant, Donald R. Gilliland, was requesting the registration of a nonconforming use for property located at 2560 West Union Avenue, in order to continue operating a concrete batch plant on the premises. This is in accordance with the provisions of the Comprehensive Zoning Ordinance, Section 16.6-1, Nonconforming Uses. The Chairman asked that the applicant come forward for testimony. Donald R. Gilliland, 9838 West Oregon Place in Lakewood, was sworn in for testimony. He stated that he wishes to move the Rocky Mountain Constructors Concrete Batch Plant from its present location to 2560 West Union Avenue. Because the present use of the property for a concrete batch plant is somewhat clouded, if the nonconforming use status is denied, he would not want to relocate his business. He hopes to enlarge his business at the new location, if he can use it for the batch plant. In response to questions from the Board he said that his business is currently smaller than the Batch Plant operated by Mr. Ross, but he hopes his business will grow. In relation to issues raised by the employees at the city of Englewood nursery in the staff report, he agreed to the conditions suggested by the City staff in the staff report. Ross Clinger, 191 Johnson Drive, Castle Rock, was sworn in for testimony. He said he is the present owner of the property and started his business in 1970. It was his understanding that the concrete batch plant was allowed when he began his business, and it has been operating for 17 years. Mr. Clinger stated that he built a concrete wall to protect the greenhouse from dust and diesel fumes. The trucks can mix anywhere and compliance with the staff's condition that the trucks should be relocated would be simple. This property is for sale, and concrete is needed in the community. He said the concrete wall varies from 6 to 8 feet in height. They changed the grade and elevation of the lot, and helped remove the property from the flood plain. There were no further speakers for or against the variance. The Chairman incorporated the staff report into the record and asked if there were any further staff comments. Mrs. Romans said that to grant a nonconforming use, the Board must find that the use was legal at one time, and because of ac- tions taken by the City, it is no longer permitted. In trying to review the case, it was found that City records are incomplete. The property was once proposed for M-2 zoning, which was heavy manufacturing, and a concrete batch plant would have been permit- ted under that designation. The previous owner, Mr. Holland, was under the impression that this use was permitted and leased the - 6 - • • • land for an asphalt batch plant. Asphalt was of concern because of the proximity to the South Platte River, but concrete would not present the same concerns. Mr. Holland, the previous owner, and Mr. Clinger, the present owner, have not been told by the city to close the business or that the use was illegal. A build- ing permit issued in 1970 permitted expansion of the building, including a new roof and remodeling. There is sufficient doubt in the minds of the staff after having reviewed the files of the City to recommend that the nonconforming use registration be approved. The Chairman closed the public hearing for Case #19-87. BOARD MEMBER LIGHTHALL MOVED, AND BOARD MEMBER HALLAGIN SECONDED THAT THE APPLICANT, DONALD R. GILLILAND, BE GRANTED THE LATE REG- ISTRATION OF A NONCONFORMING USE FOR PROPERTY LOCATED AT 2560 WEST UNION AVENUE TO CONTINUE OPERATING A CONCRETE BATCH PLANT ON THE PREMISES WITH THE FOLLOWING CONDITIONS: 1. THAT CONCRETE TRUCKS SHALL IDLE ON THE SIDE OF THE PROPERTY AWAY FROM THE CITY GREENHOUSES. 2. THAT THE DRIVEWAY SHALL BE SURFACED SO AS TO BE DUST-FREE OR A SPRINKLER SYSTEM SHALL BE INSTALLED TO KEEP DUST FROM BE- COMING A NUISANCE TO NEIGHBORING PROPERTY. THIS IS IN ACCORDANCE WITH THE PROVISIONS OF THE COMPREHENSIVE ZONING ORDINANCE, SECTION 16.6-1, NONCONFORMING USES. The members locked in their votes, and gave their findings as follows. Mr. Seymour voted "yes", saying the use was permitted at one time, there were no objections, and the property is eligible for nonconforming use status. Mr. Hallagin said he voted "yes" because if there were a mistake made, it was Englewood's mistake, and the applicant will meet the conditions. Mr. Fish concurred. Ms. Lighthall concurred. Mr. Doyle voted "yes" because the parties are willing to make corrections concerning the diesel fumes. Mr. Brown voted "yes" because the use won't hurt the City and the greenhouse will be protected, and the city did consider heavy industrial zoning for this property at one time. When the votes were shown, all six members present had voted for the variance, and the Chairman ruled that the registration of a concrete batch plant as a nonconforming use was granted . - 7 - • • • VII. ATTORNEY'S CHOICE . Assistant City Attorney Reid said that a notice will be placed in the paper about Mr. Liverant's loss of license. She noted that the Board's authority is more limited in granting appeals than in variances, and suggested that her letter to the Board concerning appeals be placed in the handbook or put in the Members' notebooks. VIII. DIRECTOR'S CHOICE. Mrs. Romans had nothing to add. IX. BOARD'S CHOICE. Mr. Brown noted the letter from Mrs. Ferguson thanking -the Board for its sympathy card. The meeting adjourned at 9:10 p.m. SheryltRousses, Recording Secretary - 8 -