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HomeMy WebLinkAbout2004-10-04 MinutesMINUTES OF A MEETING OF THE BOARD OF ADJUSTMENT A regular meeting of the Board of Adjustment was held Monday, October 4, 2004 at 3:45 p.m. in Room 326 of the City Administration Building, 113 W. Mountain, Fayetteville, Arkansas. Items Discussed Action Taken BOA 04-1231 (Trumbo/McKinney, 292) Approved Page 2 BOA 04-1233 (Habitat For Humanity/Olszewski, 562) Approved Page 4 BOA 04-1235 (Mathis, 526) Approved Page 6 BOA 04-1238 (Perkins, 485) Approved Page 8 Members Present Members Absent Michael Green Michael Andrews Robert Kohler Joanne Olszewski James Kunzelmann Bob Nickle Sherree Alt Staff Present Staff Absent Dawn Warrick Renee Thomas Leif Olson David Whitaker Board of Adjustments October 4, 2004 Page 2 BOA 04-1231 (TRUMBO/MCKINNEY, 292): Submitted by NATHAN MCKINNEY for property located at 2611 ELIZABETH AVENUE. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.57 acres. The requirement is for a 25' setback. The request is for a 20' setback (a 5' variance.) Green: Welcome to the October meeting of the Board of Adjustments. Chairman Andrews is not present today, so it looks like I will be acting as chairman for this meeting. First item on the agenda was the approval of minutes but I understand that we will forgo those until next time, because we did not have those minutes available for us to study, so I guess we will consider those in our next meeting. The first item is an issue submitted by Nathan McKinney. This property is on Elizabeth Avenue, it is zoned single family four units per acre, and the request is for a variance in the setback requirement. Suzanne, do you want to give us some background on that? Morgan: Yes sir. Again the subject property is located at 2611 Elizabeth Avenue in Oaks Manor subdivision. A previous property owner built an addition to the home as well as a wood deck to the northern portion of the home. The location of the addition resulted in a 27.5 square foot portion of the home encroaching within the front 25 foot setback as well as the deck. The base of the deck, however, is less than thirty inches above the ground and does not constitute as a structure, and therefore is permissible in this location. However, the portion of the structure which is located within this 25 foot front setback is encroaching and the applicant therefore, is requesting a five foot variance to bring the structure into compliance with our zoning regulations. The applicant requests 20 foot front setback, a five foot variance along Meadowcliff Drive, and Meadowcliff Drive is not constructed at this time. Adjacent land use and zoning consists of RSF-4 zoning with single family residential use. The property is adjacent to two rights-of-way to the north and east, therefore, there are two front building setbacks along these streets. Again, Meadowcliff Drive has not been constructed while Elizabeth Avenue has. Staff finds that these circumstances are peculiar to this site and structure and that granting the variance will allow the home to be compliant with all zoning regulations. The circumstance which has arisen did not result from the current owner of the property and the applicant. Granting the requested front setback variance will not confer special privileges on this applicant. Staff does recommend approval of the requested five foot setback variance as shown on the attached site plan with one condition, that no expansion or reconstruction of the existing structure without BOA approval shall occur within the required setbacks as established by zoning with the exception of that noted herein. Green: Thank you. Is the applicant here? Would you like to address us on this issue? Board of Adjustments October 4, 2004 Page 3 McKinney: I have nothing further to offer. But if ya'11 have any questions, I'll be happy to address them. Green: Okay. Are there questions from the board? Is there anyone else in the audience that would like to speak for or against this setback variance request? Comments, questions? It seems like it's understandable to me that the Meadowcliff Drive setback would have been interpreted as a side setback instead of a corner lot setback when they were doing this. It seems to be obviously why that was done. Kohler: How old is the house? McKinney: This addition is probably fifteen years old, we don't know exactly, nor do the previous two owners, because it's changed hands three times since this addition was built on. But we can only surmise that when the addition was made that because Meadowcliff has never been developed and in fact, there's culverts there that would indicate that it never will be developed, we can only guess that the contractor assumed this would comply with side setbacks but we're guessing because we don't know. Green: And your name for the record. McKinney: Is Nathan McKinney. And the current owner and the applicant just discovered this survey that shows this just a few days prior to the last transaction, and that's why we're here. Green: Questions? I will entertain a motion. MOTION: Alt: I motion that we approve the variance with staff recommendation. Olszewski: I will second. Green: We have a motion and a second to approve the variance as requested along with staff s recommendation. Is there any other discussion? Shall the request pass? Roll Call: Upon the completion of roll call, the motion to approve the variance passed with a vote of 4-0-1 with Mr. Nickle abstaining. Board of Adjustments October 4, 2004 Page 4 BOA 04-1233 (HABITAT FOR HUMANITY/OLSZEWSKI, 562): Submitted by PATSY BREWER for property located at LOTS 8 & 9 BLOCK 1 BURL DODD ADDITION. The property is zoned RMF -24, MULTI FAMILY - 24 UNITS/ACRE and contains approximately 0.19 acres. The requirement is for a 60' lot width. The request is for a 58' lot width (a 2' variance.) Property Owner: JOANNE OLSZEWSKI Green: The next item on our agenda is a variance request submitted by Joanne Olszewski for lots 8 and 9 in Block 1 of the Burl Dodd addition. This is for the Habitat for Humanity property. The request on this multi -family twenty four units per acre application is for a lot width approval from the 60 foot minimum to a 58 foot lot width. Leif are you going to give us background on that? Olson: My name's Leif Olson, I'm associate planner, I know I haven't met some of you all. The subject property is Lot 8 and 9 of Block 1 of Burl Dodd addition located on the west side of Washington Avenue and south of I 11h street. This site is zoned RMF -24 and is surrounded by RMF -24 zoning with primarily single family homes on these lots. These lots were platted prior the current zoning regulations which call for a minimum 60 feet of frontage. Both lots are dimensionally identical, and each contains a total lot area of 8,276 sq.ft. which meets the minimum lot area for this zoning district. The applicant is requesting a two foot variance for a total of 58 feet of frontage rather than the 60 feet required by the RMF 24 zoning district with the purpose to allow for the construction of a single family home. Like I said, all of the surrounding land use is RMF -24 with single family homes on those. As far as special conditions, these lots were created prior to the adoption of our current zoning regulations, and therefore, they contain less frontage than would be required today. Literal interpretation of the zoning regulations would not allow a single family dwelling to be constructed on Lot 8, so the applicant is requesting a variance for the minimum lot width for the development of a single family home. The lot size is not a direct result of actions of the applicant because these lots were platted prior and granting the requested lot width will not confer special privileges. All bulk and area regulations are met with the exception of the lot width. Staff's recommendation is for approval of the requested two foot lot variances for both Lots 8 and 9 with the following conditions: The proposed development shall comply with all other development regulations for a single family home in the RMF -24 zoning district. Only one single family dwelling unit and customary accessory building may be erected on the subject lot of record, Lot 8, Block 1 Burl Dodd addition, and a building permit shall be obtained prior to commencement of any work. Green: Okay. Does the applicant have anything further to add to this? Board of Adjustments October 4, 2004 Page 5 Olszewski: I think the only thing I have to add to it, is that at some point when we redo our zoning, we should address these areas that are all too small to have houses on them anymore. I think you'll keep seeing people come back. I'm Joanne Olzewski. That's the only thing I have to add. Nickle: We're just doing both lots, just to affirm the one that is already there at the same time? Olson: That is correct. Kohler: Why is the number two recommendation, why does that single out Lot 8? Olson: Because Lot 9 has an existing structure on it. Kohler: Oh, I see. Are both of these going to be Habitat houses? Olszewski: No, no. One is a house that's already there and we sold the other lot so that Habitat could build a house there. In order for them to do all of this, they wanted to make sure everything was kosher. Olson: So we're taking care of Lot 9 for the non -conforming structure Green: Further questions? Nickle: Are you ready for a motion? Green: Sure. Is there anyone in the audience who would like to address us on this matter? I'd entertain a motion. MOTION: Nickle: I move we approve it with the staff recommended conditions. Kunzelmann: I second. Green: We have a motion and a second to approve the variance request with staff's recommendations. Is there any further discussion? Shall the request pass? Roll Call: Upon the completion of roll call, the motion to approve the variance request passed with a vote of 5-1-0 with Ms. Olszewski abstaining. Board of Adjustments October 4, 2004 Page 6 BOA 04-1235 (MATHIS, 526): Submitted by SHANNON MATHIS for property located at 528 HAPPY HOLLOW. The property is zoned RSF-4, RESIDENTIAL SINGLE FAMILY — 4 UNITS PER ACRE and contains approximately 0.48 acres. The requirement is for a 70' lot width. The request is for a 63.5' lot width (a 6.5' variance.) Green: The next item on the agenda was submitted by Shannon Mathis for property on Happy Hollow zoned Residential Single family, 4 units/acre. This request is another lot width adjustment. This particular application requires a 70 foot lot width, and this is a variance request for that minimum lot width. Suzanne, I guess this is yours. Morgan: Yes sir. The subject property is lot 4 of the Bassett subdivision located east of Happy Hollow Road. This lot is currently vacant and zoned RSF-4 and is surrounded by lots within the same zoning district with single family homes constructed on them. This lot as well as surrounding lots within this subdivision were platted in 1949, prior to current zoning regulations which call for a minimum of 70 feet of frontage for single family use. This lot meets all other bulk and area requirements for a lot within this zoning district. The applicant is requesting a 6.5 foot variance for a total of 63.5 foot lot width for a single family residential unit rather than the 70 feet required by the zoning district. The subject property is owned as an individual lot with adjacent property under common ownership. Staff finds that literal interpretation of the zoning regulations would not allow for a single family dwelling to be constructed on the existing lot. Circumstances exist which do not result from the actions of the applicant. Staff finds that granting the requested lot width variance would not confer special privileges and will allow for a development of a single family home on a lot in harmony with the surrounding properties. Therefore, staff does recommend approval of the requested 6.5 foot lot width variance, as shown on attached site plans with four conditions of which Condition 1) The proposed development shall comply with all other development regulations for a single family home in the RSF-4 zoning district. 2) Only one single family dwelling unit and customary accessory buildings may be erected on the subject lot of record. 3)A building permit shall be obtained prior to commencement of any construction. 4)If construction of any type is planned in the flood plain and/or flood way, a flood plain development permit is required by ordinance, a grading permit may be required if grading activities are to occur in the flood plain." Green: Is the applicant present? Is there anything you'd like to add? Mathis: No, I have nothing else. Green: Looks like there's very little space outside of the flood plain in this lot. Condition #4 addresses all of that. Board of Adjustments October 4, 2004 Page 7 Kohler: Doesn't look like any of the lot that's outside of the floodplain is outside of setback at the same time. Warrick: The City does have regulations that allow for development within the flood plain within certain conditions. And that floodplain development permit would ensure that compliance with that ordinance was met. The basic condition is that the finished floor elevation, the lowest finished floor has to be a minimum of 2 feet above the base flood elevation at the point where the structure would be located. So, it may be very constrained, but there's still potential for some development on this site. Development of any type within the floodway is prohibited. So, there's an area that's completely off limits, and then there's an area that's restricted but development could occur. Green: Which could be handled with additional fill into the flood plain, as I understand that. Warrick: That's one option. Kohler: With a retaining wall or something? Warrick: Yes. Green: Is there anyone in the audience who wishes to address this issue? Comments or questions from the board? MOTION: Nickle: Seems much like the last one. Someday they'll pass something that will allow us to escape these. I move to we approve the variance with the staff conditions. Olszewski: Second. Green: There is a motion and a second to approve the variance request as stated along with staff's recommendations. Is there any further discussion? Shall the request pass? Roll Call: Upon completion of the roll call, the motion to approve the variance request was passed by a vote of 6-0-0. Board of Adjustments October 4, 2004 Page 8 BOA 04-1238 (PERKINS, 485): Submitted by BRET PARK for property located at 218 W SUTTON STREET. The property is zoned RSF-4, SINGLE FAMILY - 4 UNITS/ACRE and contains approximately 0.23 acres. The request is for a 1,112 s.f. variance for the lot area, an 8.5' variance for the lot width, a 16' variance from the required 25' front setback, a 3' variance from the east side setback, and a 16' variance from the required 20' rear setback to accommodate an addition with an attached garage. Green: The fourth item on our agenda was submitted by Brett Park for property on Sutton Street zoned Single Family, 4 units/acre. This request contains many parts. Basically, there are two general areas which we probably should consider separately. One has to do with lot width variance, and the bulk and area requirements along with a front setback that evidently was nonconforming structure. And then the second part of it has to do with variances required for a proposed addition. So let's take the first one first. Who's handling this one? Olson: I'll take care of it today. This property is located at 218 Sutton St. between Washington and Willow. It contains 6,888 sq.ft. The lot measures 61.5 foot wide but 112 feet deep. Currently there is a 2,291 sq.ft. single family home located on the property. Both the lot and the structure are existing nonconforming. Pre-existing the current zoning regulations, the home is located well within the Master Street Plan setback along Sutton St. and the lot does not meet the bulk and area requirements of the RSF-4 zoning district which is a minimum of 70 feet wide, 8,000 sq.ft. A detached garage is shared by the applicant and an adjoining property owner and so the garage and entry drive straddles the property line and is also a pre-existing nonconforming structure. The surrounding properties are primarily single family homes situated on lots of comparable size and situation. The proposal, the applicant proposes to add a total of approximately 1,142 sq.ft. to the rear of the existing structure. This would be comprised of 512 sq.ft. of heated floor area, 544 sq.ft. of garage, and 86 sq.ft. of side porch. The current proposal does not include the removal of the existing garage due to its shared nature. And the adjoining property owner has not yet consented to removal of this structure, half of which is on the adjoining property. The existing conditions, the lot width is 61.5 feet, so they're requesting 8.5 foot variance for the lot width. The lot area is less than the 8,000 sq.ft. per the ordinance. So they would need a 1,112 sq.ft. variance there. And then the front setback, the ordinance requirement is 25 feet. They need a 16 foot variance for that. Those are the existing conditions. For the addition, they would need a three foot variance from the side setback to the east, and a 16 foot variance from the rear setback. As far as findings, special conditions, this home is existing nonconforming structure, predates the current zoning bulk and area requirements. Staff finds that the request to bring the existing lot and structure into compliance demonstrates sufficient special conditions to warrant granting a variance for this request. Board of Adjustments October 4, 2004 Page 9 However, staff finds that the variance request to allow an addition of approximately 50% of the existing home onto the site does not sufficiently demonstrate the existing special conditions or circumstances which warrant approval for the 16 foot rear setback variance. A special condition does exist to the east in that there is a seven foot six inch block wall that's been erected by an adjoining property owner. And so this wall does reduce the impacts of a setback encroachment onto the side property to the east. The request for the encroachment into the rear setback, however, is based solely on the desire of the applicant to expand the size of the existing house and no special conditions exist that reduce that impact on current or future property owners to the north. Bringing this lot into compliance would permit the applicant to make additions to the home without further variances, specifically to the west nine feet and to the south of approximately 25 feet. Resulting actions, the existing nonconforming nature of the lot and structure predates the applicant and therefore is not a result of actions of the applicant. Granting the requested variance would not confer special privileges. The use of this property is permitted by right in the RSF-4 zoning district. So staff s recommendation is for the approval of the requested variances to bring the nonconforming portions of the lot and structure into compliance. These would be the lot width variance of 8.5 feet, the request for the lot area variance, and the request for the front setback variance of 16 feet. Staff recommends denial of the requested rear setback and side setback variance based on the findings herein. Green: Okay, thank you. Would the applicant like to address us on this issue? Park: My name's Brett Park. One thing I'd like to just mention first is under Number #2, the findings for deprivation of rights in the last line, I think that instead of south, that should be north. It's simple a typo. Green: So noted. Park: Another point, first I'd like to say we respect staffs findings, and understand their comments and appreciate that. One thing that I might make a note of is that there may be, in our opinion, there's a special condition to the north depth of the Mathias lot; it's the lot that faces on to Washington St. and the depth of their backyard, the way it extends to the east is inaccessible for future development and I don't know whether Mathias, or the owners of that home in the future expanding back to the east that great a distance, so we'd like for you to just consider that as a possibility under those special conditions. And in addition to staffs information that was presented today, our client Gina Perkins has gotten letters of consent from all of her adjacent neighbors, and I think that that has been submitted; it's hopefully part of your packets now. Board of Adjustments October 4, 2004 Page 10 Green: That's correct. Warrick: Pages 4.16-4.21. Park: Anecdotally, I think this report has been very enthusiastic despite how we were very, very simple with our little note. But Gina's recount of her neighbor's opinion of her property and the development of the project, she showed them the design drawings and everyone was very enthusiastic about it. You can take that to the bank. The one thing that we are facing with this project that I'd like for you to consider is that the owner to the property to the west, Sharp, who shares the garage, is not the active property manager. Our understanding is that she is in residence at City Hospital and is not actively part of the communication regarding this, so we really can't move forward on the removal of the shared garage. This request that we're making today would give us the opportunity to have the confidence to pursue that in the future and it is certainly Ms. Perkins' intent not to have the shared property for the clarity of the title of the property, not to have to deal with that in the future. It's also the opinion of the property manager of Ms. Sharp's property to the west there, that the issues of shared maintenance and shared property between her as a long time property owner and resident and the more, for lack of a better word, transient nature of the rental property presents on ongoing difficulty that would be addressed by having some alternative to a shared garage, so this is something that's really important to Gina Perkins, but it would also be important to anyone who might buy that property to the west. It would solve some problems in terms of the clarity to the title and ownership and access and use of that shared garage. Not to mention that the shared garage is certainly built over any, it's an encroaching, nonconforming oddity in the neighborhood. Maybe not oddity, there are other shared garages, but it could be better, we think that our proposal is better than what's there now. Green: My main question I guess is that if agreement on the disposition of that existing garage cannot be done, I guess you're not going to be able to access the new garage very easily are you. Park: That's true. Virginia's husband enjoys restoring antique gumbalt machines and has plans for the use of that garage and shop for that purpose, and in the mean time, they plan to have a good active use of that function until the time that it could be used as a garage. Green: Okay. Nickle: I can tell you that from a real estate stand point, that often times when you do have these shared garages it can lead to problems when you want to sell your property, because a lot of buyers don't understand that concept and Board of Adjustments October 4, 2004 Page 11 they're aware that agreements or disagreements can occur about the maintenance, etc. etc. So I think that's something to consider. I guess the other thing is, I see where the residential addition is, and if you said that that could be a garage, you'd have to make a 90° turn into that thing somehow to put your car in the garage, and I think an attached garage is a desirable feature for most homeowners. Alt: Do we have any rules regarding how much of a piece of property can be paved over which is not paved over? Warrick: That's a good question. In some districts we do. Let me real quick just reference this one to make sure what the regulation is. Kohler: I guess the thing I'm struggling with is the granting special privileges. I can see how this is not granting special privileges. Warrick: Going back if I may, there is a restriction with regard to building area on any lot, the area occupied by all buildings shall not exceed 40% of the total area of such lot. Now that's just the structure cover on the lot, but it doesn't necessarily have a green space requirement, but the buildings cannot cover more than 40% of the lot area. Park: We calculated that and we're at 39%. 1 Warrick: Is that with the detached garage existing? So if the existing garage stayed, then this addition would exceed that 40%. Park: That is correct. Warrick: The addition wouldn't be possible under that condition unless the detached garage were removed prior to submitting that addition. I think it would be an appropriate additional condition should the board choose to grant the variance for the proposed addition. It could not be placed unless the detached, existing garage were removed first. Olszewski: Bob, you had something. Green: Can we first just look at the existing nonconforming structure, and try to see what kind of motion and how we're going to dispose of that part of the request, and then let's separately look at the addition request. Warrick: I think it'd be great to do this in two separate votes. Olszewski: Should it have been presented in two different? Board of Adjustments October 4, 2004 Page 12 Green: Basically it was, there are two sections in the recommendations and then there were two sections in the actual request letter as I read it. It would probably be appropriate to keep it separate that way. Are there any other questions or comments concerning the request items? There are three different items for the non -conforming structure? Nickle: Number 1,2, and 3 there? Green: Right. It's for the lot width variance, the lot area variance, and the front setback variance for the existing structure. Olszewski: What exactly are the regulations regarding non -conforming structures that would be a part of that? Warrick: As a non -conforming structure, this building could remain. It could not be expanded upon by more than 25% without variances to bring it into compliance, and that is an owner occupied single family home may expand by 25% within the setback requirements and it's provided that that can occur with a nonconforming structure. However, the proposal is for more than 25% of an addition. But back to the existing conditions on this lot. Lot area and lot width are pre-existing conditions that were made evident by the adoption of current zoning regulations. The fact that the front portion of the structure encroaches the 25 foot setback is also a situation that existed prior to current zoning regulations. All of those can certainly remain in place and the structure not be affected by those non - conformities, unless it were destroyed or damaged 50% or more, at which point, it could not be reconstructed in this location and at that point in time, we would have to address the lot width and lot area issues as well. Olszewski: And you're talking about the garage, right? Warrick: We're talking about the existing single family home. Olszewski: Oh I'm sorry, my question had to do with Number two, which had to do with the detached garage shall remain non -conforming. Warrick: Okay, I thought we were just talking about the existing conditions here. Green: It's part of the first one I believe also. Warrick: Okay, I understand. The intent of staff's recommendation was not to address the non -conforming, existing, detached garage but to allow it to remain as an existing, non -conforming structure, and again, it would be permitted in that location until such time as it were damaged or destroyed, and then it would not be allowed to be relocated there. That's the intent of our recommendation. Board of Adjustments October 4, 2004 Page 13 Olszewski: And the thing about increasing it by 25%, that had nothing to do with that. Warrick: That's correct, I'm sorry, I was addressing something different. Olszewski: So it could just sit there, but if something happened to it, they couldn't put it back? Warrick: That's right. Olszewski: Okay, I'm clear now. Kunzelmann: Is this a common condition with this garage situation, the shared garage? Has that happened elsewhere? Warrick: I know that there are several of those in the older, historic areas of town. We haven't, to my knowledge, really addressed that through the variances in the past. They've pretty well stayed until they were so old, or both parties decided to tear them down. They're not very common. I can't resolve permitting them yet. One side works a little bit different than the other. It's not something we address really commonly. Perkins: This parking side is bowed. Nickle: That's part of the problem that I was speaking of before. They're all in the historic area. And this lady obviously is incapacitated, etc., but you've got others that become kind of spiteful to the issues. It's just a situation as you say, if nobody does anything it just remains a nonconforming use, but its usually not a good or plus for marketing the property if it has a shared garage like that. Olson: Is the interior of that garage, is it split in any way? Perkins: My side's a little bigger than the other side and as long as I've, my family's owned this house for 50 years, and as long as I can remember, that other side's only been used for storage. Kohler: Is there a wall? Perkins: Yeah, there's a wall. And I'm trying to buy that property, hopefully, but she doesn't want to sell it, and is going to leave it to some nephews wherever they are. And I told David Ashley who manages it that please give me first option so I can control that property, so we'll see. Green: And you're Mrs. Perkins, right? Board of Adjustments October 4, 2004 Page 14 Perkins: Yes. Kohler: If we want to move on. Well maybe we should vote on the first issue. Green: Yes, let's address the non -conforming issue first. Is there a motion on that part of it? MOTION: Kohler: I move that we approve the first staff recommendation, including the three requirements for compliance to make the existing single family residence a conforming structure. Kunzelmann: I second. Green: Okay, there's a motion and a second to approve the first part of the non- conforming variance request consisting of three items, concerning lot width, lot area, and front setback along with the two staff conditions, and a second. Is there any further discussion? Does anyone from the audience want to address this issue? Shall the request pass? Roll Call: Upon the completion of roll call, the motion to approve the variance for the existing nonconforming structures passed by a vote of 6-0-0. Green: The next issue now concerns the side setback and rear setback request in order to accommodate the future addition, so we can open that up for discussion and comments. Kohler: I guess what I was going to say on that, is that if he had chosen, and I'm not trying to do your planning for you, but if he had chosen a one car garage and done some reconfiguring here, you could have done that even probably except the access from the existing driveway. I really think the issue becomes you could almost stay within the existing setback or a little beyond it. In my mind if it's the difference between that and a two car garage, than what's the hardship, or what is the special condition? Perkins: There is a dormer on the second floor that faces to the north with windows. That bathroom has been recently remodeled. We're trying to, with the roof lines tying into the existing structure, not interrupt that roof line, not interrupt those windows, so there is some consideration in the design for the way the roof line of the addition will tie into the existing. Kohler: Well you could still do that, it just wouldn't go back as far by making it a one car garage. I'm just trying to think what is the special condition that, you know, if it's the difference between a one car and a two car garage, where the one car would be workable, the two car isn't obviously, plus we Board of Adjustments October 4, 2004 Page 15 would be allowing something that's not even usable as proposed. It's just a stretch for me, that is all. Park: I think part of your question is relevant, most certainly your comments are relevant. You said if a two car or one car garage is workable, maybe less workable in terms or in perspective of the 20 foot rear setback, but a one car garage is not adequate for Ms. Perkin's ultimate use of the property. And that's something that currently she has parking accommodations for one car in the old garage. And that has its own problems attached to it. But the issue here was find for accommodation for her needs and thinking in terms of what the value of the property would be long term when this detached garage was removed. And I think that's a very real proposition, it's not just something that's out there, we just don't have the resources immediately to address it. And probably within the next two to five years, that's going to be easily resolved, maybe even sooner than that. Perkins: I could add too, if a one car garage was what was built and you had two cars in the family, then the second car is going to have to park outside. Kohler: Or park in the existing detached garage. Park: And also the location of the garage as it is drawn accommodates enough back around space so that they can, they don't have to back down the entire length of the driveway, they can turn the car around. Kohler: I just, I guess this board doesn't normally grant variances based on design issues or additional spatial requirements just to enhance the value of the property or even the needs of the owner. It's not a variance issue, I mean it's not a legitimate reason, in my mind, to grant a variance for someone to cross over a setback line just because someone needs more space in their house. That's just the nature of variances is to address a special condition. Perkins: If the lot were bigger, then maybe we wouldn't need to come before you, I mean if the lot were built to today's standards. Olszewski: This is something actually that I was thinking of. Am I looking at this right that your neighbors, someone mentioned probably won't build behind you? Is that another lot, Number 5 back there? Warrick: It looks like a portion of a lot was adjusted onto there at some point in time. Olszewski: And so it's a kind of greenspace kind of thing? The ideal thing, of course, is for you to own that. I mean that's the ideal thing, because then there wouldn't be a setback problem. Board of Adjustments October 4, 2004 Page 16 Green: Still be a side setback problem. Olszewski: There wouldn't be a rear setback problem. Perkins: John, he owns the lot, his lot goes clear behind the people on the east of me and on the west of me. So I mean it goes clear back, almost to Willow. And that's one lot there. It's a huge lot, he certainly didn't object. He thought it was great. Olszewski: The other problem we have here is the 40%. That's a big one here because of this. And the other problem I see is that that garage is still there and I have to agree with Bob, that's not part of what we're supposed to do unless there is a true special condition. Nickle: I guess the only way I could consider that a special condition is that until such time as she could have the ability to tear down the garage, then she's stuck with that. That is a special condition that she has no control over until she can obtain the other half of the garage, she can't do anything with it. That would be my only way to construe that is that it's a special condition because she can't do anything about it. It was there, predated all of our setback regulations, etc., and now she finds she can't tear it down because of the dual ownership nature of the property and if she would she could or if she could she would, and to me, and I don't know what to do about the 40% regulation. Dawn, any wisdom or judgment there, how do you get around that? Warrick: That's a bulk and area regulation as part of the zoning ordinance and the only way to get around or not comply with the 40% coverage of structure maximum is by this board granting a variance. Nickle: But that would be a special condition for the bulk. That would be a special condition for why she couldn't meet the bulk, because that was already there and there was nothing she could do about it. I can definitely see that being a special condition. But that isn't a special condition for building in the setback. Kohler: Another thing is the way I'm looking at it. What if this wasn't a garage? What if this was additional living area and you didn't need driveway access? Nickle: Are you talking about back here? Kohler: What I'm saying is, what you're calling a special condition, if that was not a garage. If she was building like a playroom she wouldn't need the access. What you were saying about that being a special condition would go away. Board of Adjustments October 4, 2004 Page 17 Nickle: Well, certainly the 40% would be affected. Kohler: You're saying, and I'm interested in your argument because I'm trying to figure this out in the best way possible. But you're saying that it's possible to interpret a special condition in the fact that she has an existing garage that she shares with someone else that she has no control over. And I'm willing to buy that, except the problem is, I'm not looking at this addition as a garage, per say, I'm looking at it as a built structure that would not necessarily, it would be the same if it was a living room where access wasn't an issue. That special condition would not be there. So, I mean I'm struggling with this. Perkins: If access weren't an issue, vehicular access weren't an issue, for a side - entry garage, then we wouldn't need to ask for the setback to the east, but we need that garage to be a little bit closer to the east property line because of the turn around. Kohler: I'm more worried, yeah. I mean the rear property line is the one that's being egregiously encroached upon. Nickle: If this didn't exist and they just wanted to have a garage back here as proposed, you would say yes, no? Kohler: I wouldn't because I'm looking at this as a structure, not as a garage. Olszewski: In other words you're saying, it's not the east that's bothersome, it's the rear setback that's bothersome no matter what it is. Kohler: And I'm not giving a whole lot of credit for the fact that they can't move this existing garage, because I'm looking at this as a structure, not a garage that needs access. If it were detached, it would be a little bit different. But it's attached, it is part of the house. Nickle: I guess my thought is most garages that we see built out there today are attached garages, just for convenience. I don't have to put my car in the garage and then go out in the elements dragging groceries, etc. So I think an attached garage is much more desirable from a usage standpoint. Kohler: Well, it's going to enhance the value of the house, there's no question. Olszewski: Except for at this point she can't use it as a garage. Nickle: I guess you can, but it would be difficult. You'd have to back down the driveway, basically. Board of Adjustments October 4, 2004 Page 18 Kohler: It's just also, if everyone that wanted to add square footage to their house, which is doing in my opinion, even though it's a garage. To add footprint to your house, everyone who wanted to increase the value of their property, if they all came to get a variance in order to do that on a regular basis, that's not what we're here for. Whitaker: Well, if you follow that line of logic, you would basically not have setbacks, because everybody could come in and say, "Well, we have to have a bigger room because we have more kids than the guy next door, so we need to go over onto our setbacks." Or, "I own four cars, where am I going to put them all?" Eventually, if you continue to do that, you've gutted your purpose. Park: Regarding the 40%, it's based on a minimum lot size assumption, which we are below that anyways, so our 40% is in question there. I think that's a difficult proportion for me because we're dealing with a smaller than typical lot anyway. Secondly, we're not asking for anything, in my opinion I don't think it's an astounding or an unusual request that we would have a two car garage for a house, and if the lot were bigger there might be options available to us to be a little more gentle with the setback situation, we could be more sensitive or responsive to that. It's further compounded by the fact that we have this situation with the shared garage, which any involved party who's capable of having an active role in this situation would like to see that gone and I'm trying to be gentle with my choice of words there. What we have is a single opportunity to add on to the house. Gina doesn't want to have two or three different additions, or do this in phases, or do this over a long period of time. We have all the adjacent neighbors supporting it and view it as an improvement to the existing conditions whenever the existing detached garage goes away. And in all good faith, I think we truly honestly believe that that's just a matter of time, and not a very long matter of time, and the existing detached garage really doesn't serve the needs of Mrs. Perkins or her family. So, that's kind of how we had the nerve to bring this to you today, it was not an opportunity that we thought we were coming in just to see what we could get, it was an opportunity to say this is our very best shot at a solution that will be, at least by our actions, we've been as considerate as we can by asking the neighbors what their opinion was, and in terms of Mrs. Perkins's project costs, we've been as responsible as you can be with a reasonable way to tie into the existing structure and not have to rebuild a whole lot of stuff or tear out a lot of the existing house and finally, try to be accommodating to her functional needs on this. And at this point, I think it's our most responsible attempt at doing that. I do appreciate your thoughts on it. I don't feel like we're asking for a frivolous abandonment of the rear setback, I think that we've tried to be very responsible about it. It just happens that the conditions of the lot in the middle of the neighborhood and the size of the property is just sort of, we've taxed our Board of Adjustments October 4, 2004 Page 19 greatest resources to find a way that we feel like is the best possible thing that we can propose. Kohler: As far as the 40%, from what you just said, I totally agree, we just basically granted a 70 foot lot width, by voting, in effect. So we're probably under the 40% now if that's the case. Warrick: If we calculated it based on a standard lot of 8,000 sq.ft. Kohler: So on that issue, that's no longer a concern because in fact, we're giving you 70 feet. And if you were close at 61.5, you're probably fine, even though you didn't include the garage. Olszewski: Is that how you do that? Nickle: Well, it's kind of a same as. If you say now that this is equivalent to a 70 foot lot, than you can make your calculations. Kohler: In effect, isn't that what we did? Whitaker: You made it a conforming lot, yes. Olszewski: We made it a conforming lot, but did that make it a 70 foot lot? I mean it's conforming when it's a smaller lot. Green: It changes the ratio. Actually, it seems to me like the only special condition that I can really find here is the fact that it is a sub -size lot. We have recognized that point, we have already recognized it as a non- conforming lot of only 6800 sq.ft., and so that being a smaller than normal lot, causes you a lot of problems in turning radius, in order to enjoy a garage, a two -car garage with a structure like this, there's just not going to be very many options with this very small size lot. Now, if we base it on a 8,000 sq.ft. lot size, a normal lot size, they would be entitled to build it up to 3,200 sq.ft. of building on that lot, right? That's 40%. So, based on that, if we looked at 3,200 sq.ft. of total building area, are we still going to exceed that with that existing garage or half of that existing garage? I wouldn't think we would. Nickle: I guess the other thing if you will, and I know that we in some form or fashion considered it before in the historic districts etc., which we try to encourage rehabilitation of older properties and things like that, I think that we can look at that as a special condition, if you will, that because of the undersized lot that this went as part of the historic districts. We've seen that before, and that we can understand that we encountered some other things that our code just wasn't written for, and that's why you variances too is that special conditions that old historic structures, and you Board of Adjustments October 4, 2004 Page 20 try to make it livable. I think that's one of the goals up there, a livable city etc. I think we can consider that anyway, in my mind. Green: Other comments, questions? Is there anyone else in the audience that would like to address this? I'll entertain a motion. MOTION: Olszewski: Okay, I'll motion that we follow staff's recommendation and deny it with these findings. Kohler: Second. Green: There's a motion and a second to deny the request for this side setback and rear setback variance for the addition. Is there any further discussion? Shall the motion pass? Roll Call: Upon completion of roll call, the motion to deny the request for variances in the side and rear setbacks was rejected by a vote of 4-2-0 with Mr. Nickle, Mr. Kunzelmann, Ms. Alt, and Mr. Green voting no. Green: So the motion to deny has failed. Then I suppose we technically need a motion to approve if we're going to succeed, or does this confer approval? Whitaker: I love when you make it imaginative for me. I think for the sake of procedural thoroughness, you probably ought to have an opposing motion in favor of, citing the board's approval on the record, rather than simply the rejection of a denial. Green: That's two negatives; it does not necessarily make a positive. Olszewski: Okay, so I would ask, I would like to hear why everyone would like it to pass that said no. Kunzelmann: I am influenced greatly by the neighbors' letters; all of them support this project. The east setback, there's a concrete wall, so I don't think it infringes upon the neighbors at all. There's a greenspace behind, there's no structure within a sight line of the back of the building and the neighbor has written a letter. And this actually brings, the existing garage is actually further back than the proposed garage, so I think that bringing it a little further from the greenspace is desirable. I think as a historic neighborhood, I think improving properties in the historic neighborhood is desirable. Green: My purposes in voting against the denial, of course, I think I stated earlier that I feel a unique and special condition for this property, which is one of Board of Adjustments October 4, 2004 Page 21 the grounds that this board must consider as far as our statutorial limitations and requirements are concerned, the limitation is the small size of the lot. The concrete block fence, which is unique to that property I think, gives it an additional screening that normally wouldn't be had with all the other properties. And that's why I feel like we have grounds for granting this variance based on that uniqueness of the property. Alt: I agree. I think that it's a special condition because of the size of the lot and being in the area it is with that concrete barrier back there and then greenspace. So that's my reason. Nickle: All of the above. Kohler: And I'd like to make one comment. My concern on this was the rear setback encroachment, and I don't believe that the increased width of the lot because of the two car garage that required width. If this lot had been 70 feet or conforming, I don't believe that that rear setback would have been any less, or that rear encroachment would have been any less because of the width of two cars. And being an architect, I believe that it could have been reconfigured. I haven't done it yet, but it seems like to me there could have been less of an encroachment on the rear had you undertaken some different configurations. Olszewski: So is the spirit of the law for the rear setback about how far you are from your neighbors? Is that it, is it a civil thing? Whitaker: Originally setbacks were brought in, they're one of the earliest forms of zoning, even before the word zoning was being recognized, they were in order to provide separation between buildings after several historic great fires that burned down whole cities, it was then adopted as originally fire prevention and open air and light requirements. That's the history of how they came to be. Kohler: And fire access too. Nickle: I'd just like to say, and you mentioned this before, all of the adjoining property owners have no objections to the situation, that's very important in our considerations too. Green: Even though that can't be grounds for approval or denial. Olszewski: We just went to that meeting, and that was one of the two things they mentioned is that we cannot give a variance for economic reasons, it is against the law, and we cannot do it because it's popular, that's against the law. So we have to come up with something which now we have some reasoning, because I could not vote for something without some reasoning. Board of Adjustments October 4, 2004 Page 22 To me this was about economics, it was about property value enhancement. Nickle: If you had a 70 foot front lot, it would be a deeper lot. If it was a 70 foot minimum front, if you have 70 feet as a minimum, it would have to be deeper than that to meet the bulk requirements, so that's another reason. They couldn't meet the bulk requirements with a lot of this depth either, even if it was 70 foot frontage. So to me that's another reason that we can look at it as a special condition. Even if this were a 70 foot lot, it would have to be deeper to meet the bulk requirements, therefore the setback would be less of the property. Olszewski: One last thought. I have a really hard time going with it because that lot is smaller. Because that lot is smaller, I mean it's smaller, and therefore in that whole thing about 40%, that's supposed to be proportional. That part, the only part that's pushing me over the other way is the part that behind it, there's a very slim chance they are going to ever build, because they can't build anything but a single family house. Is that true? They can't, there's no way? Green: Only with a lot split. Warrick: A lot split would be a reach, the only potential that they may have would be to request either a duplex or granting unit approval for a second, detached structure through the Planning Commission. Olszewski: Yeah, but I mean that would have to be a special thing. Warrick: It would have to be specially approved. Warrick: By right, they can have one single family home on the tract to the north. Olszewski: And we're assuming that they're not going to expand it straight back, so we're assuming there's going to be green space back there. Okay, I'll buy that as a special condition. Green: Is there a motion for the affirmative? Kunzelmann: I move that we approve the variance as requested with staff recommendations. Green: Okay. Is there a second? Warrick: I have a question. Our recommendation was to deny. Board of Adjustments October 4, 2004 Page 23 MOTION: Kunzelmann: I move that we approve the variance as requested. Nickle: Second. Warrick: May I ask whether or not the motion and second included an assumption that there is also inherent in that approval an understanding as to the building coverage? Because really that's kind of what we've been discussing, and if that exceeds the 40%, then this board would need to acknowledge that part of that variance granting was to allow for the development as proposed in these site plans. Nickle: I think we don't know exactly. Whitaker: That's certainly what I've gathered from their discussion was that was their intent the whole time. Warrick: I just wanted to make sure that that was their intent of the motion was to approve as shown on these site plans with the percentage being whatever it may be. Kunzelmann: Yes. Green: And the second would accept that amendment? Nickle: Yes. Green: There has been a motion and a second to approve the variance as requested by the applicant and in compliance with the setbacks and the bulk requirements on the attached site plan. Does that clarify that? Is there any further discussion? Shall the motion pass? Roll Call: Upon completion of roll call, the motion to approve the variance for the side and rear setbacks was approved 5-1-0 with Mr. Kohler voting no. Green: The motion passes. Okay that is the final item of the new business of our Board of Adjustment. Is there any other business coming before the Board of Adjustment at this time? Warrick: No sir. Green: Then we will consider the Board of Adjustments adjourned.