Loading...
HomeMy WebLinkAbout1988-07-13 BAA MINUTES• •• • MINUTES BOARD OF ADJUSTMENT AND APPEALS ENGLEWOOD, COLORADO JULY 13, 1988 The regular meeting of the Englewood Board of Adjustment and Appeals was called to order by Chairman Welker at 7:30 p.m. Members present: Seymour, George, Lighthall, Waldman, Shaffer and Welker. Members absent: None. Also present: Dorothy Romans, Staff Advisor Nancy Reid, Assistant City Attorney Mary Alice Rothweiler, Planner The Chairman stated the Board is authorized to grant or deny a variance by Part 3, Section 60 of the Englewood Municipal Code. He said that with six members present, five affirmative votes would be required to grant a variance. APPROVAL OF THE MINUTES BOARD MEMBER SEYMOUR MOVED THAT THE MINUTES OF JUNE 8, 1988 AND JUNE 22, 1988 BE APPROVED AS WRITTEN. Board Member Waldman seconded the motion . All six members present voted in favor of the motion, and the Chairman ruled that the Minutes were approved as written. Dorothy Romans Assistant Director of Community Development went forward to speak. She said that it was time for the yearly review of Case No. 20-84, for property owned by Mi chae 1 Cul 1 i fer of 3229 1/2 South Lincoln Street. She said that the Board asked to be informed if there were complaints about the business, and there had been none over the last year. Mr. Michael Cullifer 3229 1/2 South Lincoln Street went forward to answer questions. He said he is trying to limit the num~ ber of customers and to create parking spaces. He said there are often as many as 10 vehicles parked in and around his property. BOARD MEMBER LIGHTHALL MOVED THAT MICHAEL CULLIFER BE GRANTED A YEAR'S EXTEN- SION ON HIS VARIANCE TO OPERATE AN AUTO REPAIR BUSINESS AT 3229 1/2 SOUTH LIN- COLN STREET, WHICH IS LOCATED IN THE B-1 BUSINESS DISTRICT. THE FOLLOWING CONDITIONS ARE ATTACHED: 1. THE VARIANCE IS GRANTED TO MR. CULLIFER ONLY . 2. THE OPERATION SHALL BE REVIEWED ANNUALLY BY THE BOARD OF ADJUSTMENT AND APPEALS. -1 - • •• • 3. NO MORE THAN FOUR CARS WAITING FOR SERVICE OR BEING SERVICED SHALL BE PARKED OFF THE PROPERTY ON THE STREET . 5. NO EQUIPMENT OR MATERIALS SHALL BE STORED OUTSIDE OF THE ENCLOSED STRUCTURE. 6. All WORK SHALL BE PERFORMED WITHIN THE ENCLOSED STRUCTURE. Board Member Seymour seconded the motion. Upon a vote, all six members present voted in the affirmative, and the Chair- man ruled the variance would continue for one year. The Chairman opened the public hearing for Case #11-88, St. Mark Coptic Ortho- dox Church. He said he had proof of publication, and asked that the staff identify the request. Mary Alice Rothweiler Planner for the City of Englewood was sworn in for testimony. She stated the applicant is requesting an appeal from the requirement that one handicap rest room be provided for ·· a day care facility. This is an appeal from the Uniform Building Code, Section 511, Rest Room Facilities. This appeal is for St. Mark Coptic Orthodox Church, 4775 South Pearl Street. Walter Groditski Code Administrator, was sworn in for testimony. He said about a year before, he had been contacted by a Glori a Martinez about changing the church annex into a child care facility which would be a change in use of the building. Sec- tion 502 of the Building Code requires that whenever there is a change in occupancy in an existing building that the portion or entire structure that is involved in the change of use be brought up to present code stan- dards. In order to help the applicants determine what would have to be done he did a code review of a floor plan put together by an architect they were in contact with. Mr. Groditski said they needed to provide specific drawings indicating compliance with the building code require- ments, and this has not been done. He went out to the site on two occa- sions to do a review of the building. Mr. Groditski said that until bet- ter plans are submitted by the architect, the Building and Safety Divi- sion cannot issue a C.O. for the structure or even issue approval to start remodeling the structure. Some items not included in the packet were that the Division rescinded a permit taken out by an electrician. It was being installed incorrectly and the contractor was told to remove the equipment until the Building Division could get further information on what could be done in the space. One of the issues that came up was the requirement of the Building Code for handicap provisions for a rest room. There were other items which he assumed the applicant was willing to meet. Ms. Lighthall referred to the State's letter stating that the basement could not be used unless a door is installed from the lower level leading directly to the outside of the building . Ms. Lighthall stated that this would be a minimal requirement for a facility for children. She asked why the Englewood requirements would not be the same. Mr. Groditski said - 2 - • •• • that the Building Code does not require a separate outside entrance for this use. Ms. Lighthall compared this case with the Housing Code's re- quirements for 7 foot ceilings. Mr. Groditski said that the State has these requirements, and all such uses must meet the State requirements. Mr. Groditski said that he does not think the basement will be able to be licensed for the child care center, but it will be difficult to insure that after approval is granted for the upper floor that the use does not · spill over into the basement. Mr. Welker stated that his understanding is that there is only one issue being considered in this request, that of the handicap rest room. The other issues will be addressed at a later date, and all requirements, both state and local will have to be met. Mr. Groditski agreed. There were no further questions. The Chairman asked that the applicant come forward for testimony. Joseph Michael, 1949 Ceylon Street, was sworn in for testimony. He stated that the main issue in this case is the handicap toilet facility. He said the day care is mainly for the church members, none of whom is handicapped. It should not, in his opinion, be required that handicap facilities be provided since the building will not be open to the public. Mr. Waldman asked if the church accepts handicapped members. Mr. Michael said they would accept a handi- capped member, and could consider construction alterations if such a per- son becomes a member . Mr. Welker asked about the other requirements by the City. Mr. Michael said the handicap toilet would cost between ten and fifteen thousand dol- lars. They are willing to meet the other requirements. ·The present rest rooms cannot be enlarged, so a new location would have to be found. Mr. Waldman asked if those rooms could not be enlarged. Mr. Michael said there are existing structures around those rooms, and those are bearing walls which cannot be moved. Ms. Lighthall asked if they were aware of the many, many things that would have to be done to bring the day care center up to code. Mr. Michael said that the first letter dealt only with the fire alarm system. The handicap toilet facility was addressed only in the third letter which was several months after the p 1 ans were begun. He said they contacted the City of Englewood about a year before. He did not know if a building permit had been requested . Mr. Welker said the City would not normally list requirements until a building permit has been requested. Mr. Michael said that to apply for a building permit would require com- plete drawings with complete specifications. They would submit the plans without the handicap facility and the plans would be rejected, and the church would have to pay for a new set of plans. He asked for exemption from the handicap rest room. Mr. Michael said they would not be using the basement for child care. Ms. Lighthall said that on August 11, 1987, in a letter to Mrs. Martinez, General Requirements for Conversion to a Day Care Center were listed and among those requirements were the handicap requirements. She said that the Building Depa r tment was not required to give this list, but was - 3 - • • BOARD OF ADJUSTMENT MINUTES FOR JULY 13, 1988. trying to give the requirements to enable the church to make plans. Mr. Michael asked for a decision on the handicap facilities, and agreed to meet all other requirements, including access to the building. He said that because the church has no use for the larger rest room, and because it would be very expensive to construct, they were appealing the require- ment. In the future if there is a handicapped member, they would con- sider the installation of the rest room. There were no further speakers for or opposed to the appea 1 . The Chairman asked if the staff had anything further to add. Dorothy Romans Planning Director, was sworn in for testimony. She expressed concern that a church building does not have handicap facilities. There is little possibility that the building will be used for any purpose other than a church. When there is a church and church activity going on, whether the intent is for child care or not, other activities move into the space. Should another denomination move into the facility, there would be no way to require that they meet the requirements. These requirements would have to be met if the church were built today. This may be the only opportunity to bring the building into conformance with the code . The church has not indicated how many children would be involved, but Mr. Zack had talked informally with her in September of 1987 indicating 30 to 40 children. This would not be permitted in a residential area, but as an accessory use to a church it would be permitted. There were no questions. The Chairman made the staff report part of the record, and closed the public hearing . BOARD MEMBER SEYMOUR MOVED THAT IN CASE #11-88, FOR THE ST. MARK COPTIC ORTHO- DOX CHURCH AT 4775 SOUTH PEARL STREET, AN APPEAL BE GRANTED FROM THE REQUIRE- MENT THAT ONE HANDICAP REST ROOM BE PROVIDED FOR A DAY CARE FACILITY. THIS IS AN APPEAL FROM THE UNIFORM BUILDING CODE, SECTION 511, REST ROOM FACILITIES. Board Member Waldman seconded the motion. Discussion followed. Ms. Lighthall said that there will be in the future many such requests, and the handicap regulations may not be applicable to day care centers. This should be considered by City Council. The members locked in their votes, and gave their findings as follows: Mr. Seymour said that he voted against the motion because most churches are trying to make their facilities available to the handicapped, and financial reasons are not just i fication for an appeal. Ms. George voted against the motion , agreeing with Mr. Seymour . Ms. Lighthall voted "no" because if the State of Colorado requires a direct outside exit , the City should also make such a requirement when other people's children are being cared for. • Ms . Shaffer concurred with Mr. Seymour. - 4 - • •• • Mr. Waldman said it did not seem that the applicant proved that the appeal would not injure the appropriate use of the facility . Mr. Welker said that this is an issue of public safety, and there can be no guarantee that there will not be handicapped people in this facility. There may be alternatives to the expense of converting the rest room, in any case finances cannot be considered. He voted "no". When the votes were displayed, all six members had voted against the appeal, and the Chairman ruled that all the requirements for a day care facility would have to be met. The Chairman opened the public hearing for Case #20-88. He stated he had proof of publication, and asked that the staff identify the request. Mary Alice Rothweiler, Planner, stated that the applicants in this case are Theresa Chavez and Eleanore Lucero for the "We Are the Children Child Care Center" at 2315 South Tejon. The request is an appeal of the application of the Uniform Build- ing Code sections which regulate the changes to the structure required when the use changes from a residence to a day care facility. This is an appeal from the Uniform Building Code; Section 502, Change in Use; Sec- tion 3301 (e) and Table 33-A Item 18, Building accessibility for the physically handicapped; and Section 511, Handicapped rest room facilities. Walter Groditski, Code Administrator, came forward for testimony. He said this is another situation where there is a change in use. One of the problems with day care facilities is that the applicant knows they have to be licensed by the State, they go to the State for licensing, and by the time they get to the City they have already invested time and money in the facility. Then they discover that they have other requirements to meet. In this case there is a residential structure that is being converted to a day care facility. Initially there was a misconception that this would be a live in day care facility, which would not be a change in use. In reality, this is to be a commercial day care facility with employees. The Building Division staff then met with the applicant to let them know what will be required. With a change in use of a residential building, there will be a problem with handicapped access and the rest room . There has been no formal ap- plication pending this hearing. City Code requires commercial buildings to place the wiring in conduit. Since this is an existing residence, al1 the wiring is free-roaming Romex , which would have to be rewired. Ms. Lighthall asked if Mr. Groditski is still a representative of the Fire Department, and noted that the Fire Department said that it is unaf- fected by both the cases. Ms. Shaffer asked if Mr. Groditski's position is that because there is a change in use the residential dwelling must meet commercial codes. He said that is his position. He said, however, that the Building Code does have a special exemption for a day care facility with less than 20 per- sons for purposes of exterior wall protection. All the handicapped, ex- iting, and wiring issues must be brought up to code. He said that they - 5 - • •• • would consider whether it would be reasonable or any safer to have the structure rewired, but he said the Building Code does not give any relief as far as the handicap requirements. He said there may be some other issues, as well. Some work has been done to bring it up to codes, but an architect is needed to provide a floor plan. The requirement for the toilet facility is that there be room for a 60 inch circle to be inscribed in the room with no obstructions except for a door swing. Grab bars must be provided, and a certain amount of space beside the door and by the toilet. Ms. Lighthall asked if there was room in the house for this. Mr. Groditski said he had not been in the build- ing. Room sizes other than the toilet would be regulated by the State. There were no further questions. The Chairman asked that the applicant come forward for testimony. Theresa Chavez, 2003 West Caspian, was sworn in for testimony. She said she had met with Dorothy Romans and Susan Hirsch to begin the process of conversion to a day care center. She worked with the State and Health Department converting the home, and then learned there would be further Building requirements. They have complied with all regulations they knew of--providing a fence, smoke detectors and fire alarms. The first inspector said that the exit through the kitchen cannot be used by the children who may only use the front and rear. They obtained their Conditional Use from the Planning Commission. They did hire an architect to produce a floor plan which is enclosed in the staff report. She said a day care center is needed in the neighborhood and they are committed to supplying the day care center. She said that both she and Ms. Lucero are qualified directors. She said that the appeal for the handicap ramp could be explained by their architect. Ms. George asked if it would be possible to install a bathroom that large. She said it would be possible, but the ramp is the major dif- ficulty. Even to construct the ramp would be very difficult. As to the rewiring, there is little electricity used--a stereo, lights, a small cool er, an electric stove with 220 wiring, a toaster and a dishwasher which meets the requirements of the State. There is a double aluminum sink which meets the Health Department's requirements, and also a small sink for washing hands only. The wiring has been approved for residen- tial. It is an old home, but a lot of work has been done to it. Ms. Chavez said this would be a private day care center. There will be no handicapped children because they are not licensed for handicapped children. She said that if a parent is handicapped that she or Ms. Luce- ro will go out to the car and bring the child in and will have the child ready when the parent comes to pick up the child. There were no further questions. Lawrence Depenbusch 58 Emerson Street was sworn in for testimony. He said he is the architect for the child care center. He said there are many bad child care programs with inade- quate teachers, and these women are good teachers. He said, in his -6 - • •• • op1n1on, it would be better to put the money into education than a bath- room which will not have any purpose and would reduce the size of the bedroom. He emphasized that there is no reason to have a handicap rest room when the day care center is not licensed for handicapped children. Mr. Depenbusch said that the ramp is very complicated because of the topography, and building at the back would be a long distance from where a car would be parked. There were no other speakers for or against the request. The Chairman asked if the staff had anything further to add. Mary Alice Rothweiler said she had talked to the Licensing Department at the State Office. They have no special requirements for handicapped children at a Child Care Center of this size. Since the applicants are not licensed for handicapped children, and are not permitted to care for handicapped chil- dren, the only people who would be served by a ramp or rest room are the people who would be bringing the children to the center. The require- ments of the UBC are much more stringent in this case. The ratio of bathrooms and sinks is one for each 15 children and staff members are not part of the ratio unless there are over 30 children. Mr. Groditski asked to clarify the request. He said he believed that the intent of the request is to appeal the wiring requirement as well as the handicap ramp and rest room. He said that the burden is upon the applicant to make sure that the facility meets the building codes. He said the Building Division has not received any plans, and there may be other requirements which the applicant will be required to meet. Mrs. Romans said that the applicants and the Planning Division staff contacted the State who told them that a small child care center not licensed for hand- icapped would not have to meet handicap requirements. If there is confu- sion, it is because the UBC requirements are different from the State's. Mr. Welker asked if the applicant had anything further to say. Ms. Chavez said that she has been a resident of Englewood for 33 years and has seen Englewood growing and changing. She said that she has a sincere belief that there is a need for the day care center in northwest Englewood and they will do what is necessary to open the center. - The Chairman asked that the staff report be incorporated into the record, and closed the public hearing. BOARD MEMBER WALDMAN MOVED THAT IN CASE #20-88 FOR PROPERTY LOCATED AT 2315 SOUTH TEJON STREET AN APPEAL BE GRANTED FROM THE APPLICATION OF THE UNIFORM BUILDING CODE SECTIONS WHICH REGULATE THE CHANGES TO THE STRUCTURE REQUIRED WHEN THE USE CHANGES FROM A RESIDENCE TO A DAY CARE FACILITY. THIS IS AN AP- PEAL FROM THE UNIFORM BUILDING CODE; SECTION 502, CHANGE IN USE; SECTION 3301 (e) AND TABLE 33-A ITEM 18, BUILDING ACCESSIBILITY FOR THE PHYSICALLY HANDI- CAPPED; AND SECTION 511, HANDICAPPED REST ROOM FACILITIES. - 7 - Board Member Seymour seconded the motion . • Discussion followed. •• • Ms. Li ghtha 11 said she was concerned about future proprietors. Mr. Seymour questioned that the wiring would be covered by the motion. Mr. Welker said that appealing the regulations for use changes would permit wiring to be con- sidered. Mr. Welker also noted that Mr. Groditski said that he did not think that additional safety would be attained by the conduit wiring. Ms. Lighthall objected to granting variances piecemeal, saying if the regulations are not valid, the regulations should be changed. Mr. Waldman said that the handicap facilities would not benefit the children, and the applicants are not licensed for handicapped children. Ms. Lighthall asked the Board to consider the possibility that other people will continue the use. Mr. Welker and Mr. Waldman said that each day care center is li- censed separately. Mr. Seymour asked what would happen if the new day care center were licensed for handicapped children. Mr. Waldman asked if a handi- capped day care would be permitted if the facilities were not adequate for handicapped children. It was noted that the State would not 1 icense a day care facility for handicapped children unless the facility met the handicapped requirements. Mr. Welker suggested limiting the variance to the applicants. BOARD MEMBER WALDMAN MOVED AND MS. GEORGE SECONDED THAT THE MOTION BE TABLED TO PERMIT FURTHER TESTIMONY FROM THE APPLICANT . Upon a vote, five members voted for the motion, and one, Ms. Lighthall, voted against it. Ms. Chavez said that she is not licensed or qualified for caring for handi- capped children. Ms. Lighthall said the Board could put a condition on the variance so that it would apply only to the day care center as long as it is not licensed for handicapped children. Ms. Romans said the staff had nothing to add. BOARD MEMBER WALDMAN MOVED AND MS. GEORGE SECONDED THAT THE MATTER BE REMOVED FROM THE TABLE. Upon a vote, all six members voted in the affirmative. BOARD MEMBER ASKED THAT "IN THE EVENT THAT THE OPERATION DOES ACCEPT HANDf..: CAPPED CHILDREN, ALL HANDICAP REGULATIONS WILL APPLY". Board Member Welker seconded the motion to amend t he appeal . All members agreed. The members locked in their votes on the motion as amended, and gave their findings as follows: Mr. Seymour said he voted "no" because there is a chance that it will change in the future, and we should be correct now . -8 - • •• • Ms. George voted "yes" as long as they would be required to meet the require- ments if they become licensed for handicapped children . Ms. Lighthall voted "no" because none of the five conditions apply; she felt that the UBC must be followed; if it needs changes it will have to be done in the usual fashion. Ms. Shaffer voted "yes" because the amended motion would afford the minimal relief in the case. Mr. Waldman voted for the amended motion because the changes are harmonious with the spirit of the codes. There would not be any risk to the health of the people of Englewood. This facility will be run well and will be safe and a positive option for the area. Mr. Welker said there were two considerations. He was concerned that there were a number of ft ems that could be exempted by an appea 1. The other issue is handicapped related and the amended motion would afford the least damage to the neighborhood and the code and still give relief. Because he believed that there would not be other safety considerations, he voted "yes" for the appeal. When the votes were displayed there were four votes in favor and two votes opposed. The Chairman ruled that the appeal was denied, and all conditions will have to be met. The meeting recessed for five minutes and reconvened at 9: 25 p. m. with the same pers~~~ present . The Chairman opened the public hearing for Case #21-88. He said he had proof of posting and publication, and asked that the staff identify the request. Mary Alice Rothweiler stated that the applicants, Theresa Chavez and Eleanore Lucero for We are the Children Child Care Center located at 2315 South Tejon Street, are requesting a variance to permit the operation of a day care center for 15 children. This is a variance from the Comprehensive Zoning Ordinance, Section 16-4-6: N 1, which restricts the number of children in a day care center in the R-2 -C Zone District to 12 children. The Chairman said that with a var i ance the applicant speaks first and then the staff speaks, instead of staff first and then applicant as it had been done with the appeals. Eleanore Lucero 1593 South King Street was sworn in for testimony. She said they needed to raise the limit of children from 12 to 15 in keeping with the State's policy. She said that since both of them are qualified as directors, and since there is enough space and enough yard for 15 children, they would like to be allowed to care for 15. The children will be between 2 1/2 and 13 years of age. Mr. Waldman asked about the bedroom that contained only two beds. Ms. Lucero said that that room is for s i ck children and normally children will use individual mats for naps . -9 - r ( -~ • •• • There were no further questions or speakers either for or against the variance. The Chairman asked that the the staff report be made part of the public record, and asked if the staff had further comments. Dorothy Romans said that when the Comprehensive Zoning Ordinance was last amended, staff had checked with the State to coordinate requirements. The staff was told that the State regulations have s i nee changed to a maximum of 6 children as a home occupation, and a child care center can have up to 15 children. It is the staff's intention to recommend that the Ordinance be amended so that it is in conformance with the State's requirements. The Chairman closed the public hearing. BOARD MEMBER WALDMAN MOVED THAT THE APPLICANTS, THERESA CHAVEZ ANO ELEANORE LUCERO FOR WE ARE THE CHILDREN CHILO CARE CENTER LOCATED AT 2315 SOUTH TEJON STREET, ARE REQUESTING A VARIANCE TO PERMIT THE OPERATION OF A DAY CARE CENTER FOR 15 CHILDREN. THIS IS A VARIANCE FROM THE COMPREHENSIVE ZONING ORDINANCE, SECTION 16-4-6: N 1, WHICH RESTRICTS THE NUMBER OF CHILDREN IN A DAY CARE CENTER IN THE R-2-C ZONE DISTRICT TO 12 CHILDREN. Board Member Lighthall seconded the motion. The members locked in thej _t' votes and gave their findings as follows. Mr. Seymour said that in view of the fact that the City is not up to date, and because there is not much difference between 12 and 15 children, he voted for the variance . Ms. George said that since the State permits this many children, it will be all right for the Board to permit it. Ms. Lighthall concurred. Ms. Shaffer voted for the motion, saying the City and State should have the same regulations. Mr. Waldman said the spirit of the ordinance will be preserved and the variance will not affect the neighborhood or its development, and he voted for the variance. Mr. Welker agreed. When the votes were displayed, all six members had voted for the variance, and the Chairman ruled the variance was granted. DIRECTOR'S CHOICE. Mrs. Romans noted that Mr. Doyle had resigned as of the June meeting and that the City Council will appoint Eleanor Dunn to fill the vacancy . Mrs. Dunn was in attendance, and Mrs. Romans introduced her to the Board. ATTORNEY'S CHOICE . i Ms. Reid said that the owners of 4673 South Pennsylvania had been notified that the rear unit could not be used for residential purposes, and this had -10 - ., • •• • been recorded at the County. It is hoped that this will solve the problem for future owners . BOARD'S CHOICE. Ms. Lighthall said that Rita Hathaway said that a meeting was being held con- cerning a paving district on Hillside, and the removal of the power poles from the middle of the street. The meeting adjourned at 9:40 p.m. Sheryl JrOUSSes, Recording Secretary -11 -