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.