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HomeMy WebLinkAboutLand Use Review Commission - Minutes - 04/14/2022 Shelley La Mastra, Chair Ian Shuff, Vice Chair David Lawton John McCoy Taylor Meyer Council Liaison: Shirley Peel Staff Liaison: Noah Beals LOCATION: City Council Chambers 300 LaPorte Avenue Fort Collins, CO 80521 The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224-6001) for assistance. REGULAR MEETING APRIL 14, 2022 8:30 AM • CALL TO ORDER and ROLL CALL All Commission members were present. • APPROVAL OF MINUTES FROM PREVIOUS MEETING Lawton made a motion, seconded by Shuff to approve the March 10, 2022, Minutes. The motion was adopted unanimously. • CITIZEN PARTICIPATION (Items Not on the Agenda) • APPEALS FOR VARIANCE TO THE LAND USE CODE 1. APPEAL ZBA220006 Address: 401 Greenvale Dr. Owner/Petitioner: Daniel & Kelsey Walsh Zoning District: R-L Code Section: 4.4(D)(2)(c) Project Description: This is a request for an accessory building (garage) to encroach 10 feet into the required 15-foot rear- yard setback. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is on Greenvale Drive, situated between Greenvale Drive and Fossil Creek Pkwy. The request is to build a garage in the rear yard. The rear yard faces Fossil Creek Pkwy. It is in the R-L zone district, and thus requires a 15-foot zone setback. LAND USE REVIEW COMMISSION MEETING MINUTES Land Use Review Commission Page 2 April 14, 2022 Beals offered two site plans, one showing the 15-foot setback with a five-foot side setback, and the other showing the current proposal as request, with a five-foot side setback and a 10-foot encroachment into the rear 15-foot setback. Beals presented illustrations of the proposed garage structure, as well as pictures of the front of the lot taken from Greenvale Drive. The neighborhood was originally built in the county and then later annexed into the city. The rear of the property, taken from Fossil Creek Drive, show that the property sits lower than the street and sidewalk along Fossil Creek Drive. From that direction, one would really only be seeing the roof of the proposed garage structure due to the change in grade. Chair La Mastra asked Beals if the existing shed structure would be remaining or would be removed for the new garage. Beals answered based on his understating that the existing shed would be staying, but the application could be asked during their presentation to confirm. Vice Chair Shuff asked Beals if Fossil Creek is classified as a collector-level street. Beals responded he believed it is classified as a collector-level street and can confirm via research. Application Presentation: Applicant Daniel Walsh, 401 Greenvale Dr., addressed the Commission, and agreed to hold the hearing in a hybrid format. Walsh stated that they had applied for a variance under the justification that the encroachment into the 15-foot rear setback would be nominal and inconsequential when considered within the context of the neighborhood. Walsh stated there are no homes that abut the rear of the property, and neighbors on the east and west have both voiced their support. Walsh commented that encroaching on the rear setback would greatly improve the functionality of the proposed garage. Walsh stated the rear property line measures approximately 48 feet, and the proposed garage is 22 feet x 24 feet; if placed to meet the required setback, the garage would only be 8-9 feet from the house. Walsh stated the existing shed would be torn down to make way for construction of the proposed garage. Walsh also stated the sidewalk to the rear of the property, along Fossil Creek Pkwy, is approximately 20 feet from their rear property line, and is approximately 4.5 above the grade of their property. For these reasons, the applicant believes the proposed encroachment to be nominal and inconsequential when considered in the context of the neighborhood. Commission member Lawton questioned if there would be impact to the tree shown in pictures. Applicant Walsh indicated the tree is within the proposed footprint of the garage and would need to come down prior to construction. Lawton questioned if the intent was to use the proposed structure as the primary garage, and then to re-purpose the existing attached garage space. Applicant Walsh indicated the existing garage’s use would be maintained. Walsh described himself as a “hobby mechanic” and stated the goal of the proposed garage is to provide him with a more dedicated mechanic’s space. Chair La Mastra questioned the overall peak height, which is noted as a 9-foot wall height to the truss. La Mastra asked the applicant if they can provide the overall height of the gable roof. The applicant was unsure, but stated the intent was to match the overall home. Beals provided answer to Vice Chair Shuff’s earlier question about street classifications, noting that Fossil Creek Pkwy is classified as a “two-lane collector”. Commission Discussion: Vice Chair Shuff commented that this case is interesting, because there are no properties fronting Fossil Creek Pkwy, and so there is not really a set relationship or character. The biggest potential impact would be the view from Fossil Creek Pkwy, but the proposed structure is small and low, sitting below grade. The lot is fairly shallow, which could justify hardship. Shuff stated his support of granting the variance, which would provide more space between the house and the garage. The overall door is facing north, away from Fossil Creek Pkwy which also minimizes potential impact. Land Use Review Commission Page 3 April 14, 2022 Commission member Lawton commented that if the garage were to meet the current setback, it would be almost impossible to maneuver a vehicle into it’s entry. The requested encroachment would provide for better access to the proposed garage structure. Commission member Meyer stated he could be in support of the application. When looking at the two versions of the site plan, the difference is fairly nominal. The shed may in fact be less apparent if it is placed closer to the street, within the encroachment as requested. Additionally, the hardship of access created by the setback is understandable. Chair La Mastra agreed with the previous statements and added that not having across the street is helpful. We do not want to change the streetscape when travelling down Fossil Creek Pkwy; without the change in grade, it may be harder to support the request, but the 4.5-5 feet grade difference will help to minimize the impact of the proposed structure on the existing view scape. Commission Member Shuff made a motion, seconded by Lawton to APPROVE ZBA220006 for the following reasons: under Section 2.10.4(H), it is found that the variance is not detrimental to the public good, the public sidewalk is setback 20 feet from the rear property line; the proposed garage takes vehicle access from Greenvale Drive; the public sidewalk is set at a higher grade than a property line. Therefore, the variance request will not diverge from the standard but in a nominal and inconsequential way when considering the context of the neighborhood and will continue to advance the purpose of the Land Use Code contained in section 1.2.2. Yeas: Meyer, La Mastra, Mc Coy, Lawton, Shuff Nays: - THE MOTION CARRIED, THE ITEM WAS APPROVED 2. APPEAL ZBA220007 Address: 2108 S College Ave. Owner: Raising Canes Chicken Fingers Petitioner: Denise de la Cruz, Elite Signs & Designs, Inc. Zoning District: C-G Code Section: 3.8.7.1(G) Project Description: This is a request to add an additional drive-thru menu board to each of the two existing drive-thru lanes, resulting in two drive-thru menu boards per lane. The maximum number of drive-thru lane signs is one per drive-thru lane. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is located on South College Avenue, and has been in the current location with a drive-through lane for approximately 10 years. In the last few years, they have tried to mitigate the impact of the drive-through lanes onto the public right of way and have added two lanes to their property. Beals noted that within our Land Use Code, which was updated in 2017-18, there was an allowance for a drive-through lane sign, which were limited 30 sq ft per drive through lane. Beals explained that the current request is to not only have a 30 sq ft menu drive-thru lane sign, but to also have an additional sign placed in the front of the drive-through lane. This would exceed the allowable signage according to current code. Beals noted that with the addition of the second drive-thru lane, the traffic pattern has changed so that the north lane is exit-only one-way, and the south lanes are exit and enter two-way drives. Beals also noted a new canopy that has been added to the drive-thru lanes, as well as the existing menu board signs. Chair La Mastra asked Beals if there had been any previous modifications for signage to this drive- through. Beals confirmed that there were no previous modifications, and the applicant is currently in compliance with sign code. Land Use Review Commission Page 4 April 14, 2022 Commission member McCoy asked if the variance was based on square footage or number of signs? Beals commented that the request contains elements of sign square footage as well as additional numbers of signs. Application Presentation: Applicant representative James Waller, Civil Engineering representative for Raising Canes, addressed the Board and agreed to hold the hearing in a hybrid format. Waller stated the main reason they would like to install the requested “pre-sale” boards along the drive-through lanes is to expedite traffic queuing. The goal is to move vehicles as fast as possible in order to minimize traffic back-ups onto College Ave. during peak times. Vice Chair Shuff asked if the proposed signage design is a corporate standard or customized to the site? Waller responded that the sign was as nation-wide design and has been included in newer franchise sites throughout the Denver metro area. Chair La Mastra asked Waller to describe the contents of the sign, and to describe how this type of sign helps to move traffic through the drive-through lanes. Waller stated the sign describes four main combo meals and what is included in each, as well as information regarding common “larger orders” like tailgate packs etc. Beals added that part of the sign code allowance for a drive-thru lane signs allows for the sign to be 100% digital, knowing that menus of this type may change from breakfast to lunch, as specials change, as orders are placed, etc. This is different from other grounds signs, which are generally limited to 50% of their space being digital. Commission member McCoy asked Waller if he could identify how much faster orders are placed when this type of sign is present. Waller stated he did not have that information available at this time. Light traffic impact studies have shown that the queuing process is made faster. Lawton asked Waller if this measure would fix the traffic problems on College Ave created by the Raising Cane’s drive- through lanes; Waller responded the combination of these signs with the double drive-through lanes would help to solve the problem. The double drive-through lanes and created some improvement; the addition of the pre-sale menu boards would create additional improvement to traffic patterns. McCoy asked Beals if there had been instances of traffic instances in the area of Raising Canes. Beals stated he did not have actual accident figures available but had heard anecdotally of a few accidents in the vicinity. Commission members stated they have all experienced the traffic back-ups created by traffic queuing problems and have noticed improvements since the double drive-through lane was opened. Commission member Lawton asked if the primary ordering sign could be reduced in size, so that the combination of the pre-sale and point-of-order signs could be within the allowable sign area? Waller responded that this could potentially be the case but did not want to answer definitely at this point because he personally is not responsible for the creation/design of the specific signs. Lawton noted that perhaps one of the existing panes on the existing menu signs could be removed in order to spread the allowable sign area amongst more signs. La Mastra asked for clarification regarding the adjacent buildings; Beals noted that there is a combination of residential and commercial properties. Vice Chair Shuff added that there is a 6 to 8-foot retaining wall behind the property, which helps to break up the environment. La Mastra asked the applicant if digital signs had been considered; Waller stated he could follow up with the sign maker to discuss that possibility. Land Use Review Commission Page 5 April 14, 2022 Commission Discussion: Commission member Shuff stated his opinion that this request is a bit of a tough one. Shuff acknowledged that there is obviously a bit of an issue with the current traffic flow, so every few seconds gained to speed up ordering helps. Shuff stated this could potentially be viewed as a hardship justification. Looking at the impact, the proposed sign location is behind College Ave, so wouldn’t have much impact from that viewpoint. The larger impact may be to the adjoining properties to the south and east; however, the presence of a double-lane drive through is already a significant impact so at some point it is all relative. Shuff stated he would like to see the signs a bit smaller, in an attempt to fit within the standard sign allowance. This may be a feasible compromise for the applicant. Chair La Mastra stated her difficulty with granting approval of this request, in part because in La Mastra’s opinion the applicant did not do a good job of presenting on hardship. In fact, when looking at the application request there is nothing in the application or letter that refers to hardship or nominal and inconsequential justifications. The Commission is tasked with making determinations based on those justification standards. While it can be done very easily, and may be means for approval, within our bounds for approval it is difficult to come to those conclusions for approval. Assistant City Attorney Claire Havelda offered comment, directing Commission’s attention to Land Use Code Section 2.10.4(H)(1): the last part of the hardship analysis says that the hardship cannot be caused by act or omission of the occupant or applicant. This is offered for consideration. Additionally, subsection 2 of that, when we talk about support the purpose of the land use code. There has been discussion of traffic and safety, so may be a better fit for the conversation. La Mastra asked Havelda for clarification regarding safety concerns, which are created due to large volumes of business/customers. How would the Commission approve based on that? Havelda responded to La Mastra’s question, stating that it depends on which part of the Code the decision is anchored upon. When we look at Land Use Code Section 2.10.4(H), subsections (1), (2) and (3) are all “or” statements, not “and” statements. So, you can look at hardship OR fulfilling the Land Use Code. It is also up to the Commission to determine who has created the hardship. Shuff stated that based on Havelda’s statements and information, we do appear to have the means to come up with hardship justification. When it was originally created with one lane, it functioned fine for a while. It has been a change in eating culture and habits over the last few years that have affected the drive-through lanes usage. Could the applicant trim the sign down 26%, and get it down to 30 square feet? That would allow for an additional sign without going over the limit. La Mastra commented that because the requested sign would be 26% over the allowable square footage, it would necessitate significantly reducing the size of the proposed new signs or re-doing their entire main sign. Shuff stated that he believed this would give the applicant options. Commission member Lawton commented that he believes there are indeed options that may be looked upon more favorably by the Commission. Looking at ordering location and signage there, it may involve limiting signage there. There is good intent to reduce the amount of time customers spend in queue, but there may have been easier ways to achieve that rather than putting up more signage beyond what is allowable. Commission member Meyer agrees that this is definitely a numbers game, and the applicant has not supplied numbers for review. It would be great to see some statistics about traffic flow through a drive through, by providing additional signs. Would also like to see statistics about how many traffic incidents/accidents have occurred at that location. It seems to be a legitimate safety hazard. IT would be nice to have more knowledge about whether these signs are helpful in that regards. The Commission is now comparing a sign code about a little bit more of an eye sore compared to a legitimate safety hazard. It seems like a no-brainer – whatever we can do to help the situation is important to do. Meyer stated his surprise that this issue is now coming before the Land Use Review Commission, rather than being addressed by city engineering or another similar group. IT seems to make sense that adding these couple signs could improve traffic, as has the addition of the second Land Use Review Commission Page 6 April 14, 2022 drive-through lane. Perhaps the applicant can be encouraged to reduce signage to meet the overall 30 square foot maximum while still achieving their goal. La Mastra commented we have discussed Starbucks quite a bit, who also experiences high volume of traffic through its drive-through lane, which is also accessed off S College Ave. However, Starbucks sells primarily drinks and snacks, so it is not an apples-to-apples comparison when discussing sign square footage. Menu needs and number of entries included may be different and necessitate different types of signs. La Mastra continued, stating that she understands the issue of sign clutter, but looking at the pictures of the site you can see large retaining walls directly behind and to the south of the property, which is itself surrounded by built landscaping. Therefore, we may be able to consider the request based on the justification of nominal and inconsequential in the context of the neighborhood, because there really isn’t a lot of impact created by the proposed placement of the signs. La Mastra stated her willingness to support the request as-is but would not be in support of asking the applicants to re-do their entire signage on their property in order to meet the 30 square foot maximum. Commission member McCoy stated he completely agreed with the previous statements offered by La Mastra and added that anything that helps to take standing/queued traffic off S College Ave is all part of Midtown trying to improve. Traffic jams and standing cars in the far-right lane only make things worse. This variance should be granted based on the issue of safety alone. La Mastra agreed with McCoy’s statements and said she would agree with approving based on either Havelda’s recommendation, or on the basis of nominal and inconsequential based on the photos of the neighborhood context and surrounding areas. Commission Member Shuff made a motion, seconded by Meyer to APPROVE ZBA220007 for the following reasons: based on Section 2.10.4(H), the variance will be nominal and inconsequential in relation to it being behind the primary building, and the adjacent properties to the east and south have large retaining walls; to the north is landscaping. Based on these elements, the signage is not very visible to the public right of way. Beals asked Shuff for clarification if the Commission would be limiting the size of the second sign to what is being proposed. Shuff stated his motion stands on the request as submitted. Beals asked if this motion passes and someone wanted to replace the sign, it would still be limited to the size as submitted. Shuff confirmed this to be accurate. Havelda asked for clarification, asking if in the motion put forth by Shuff is considering subsection (3) – nominal and inconsequential when compared to the neighborhood or if it stands also non subsection (2) – safety considerations. Shuff made an amendment to his motion, to include the consideration of subsection (2) as additional grounds for justification. Yeas: Meyer, La Mastra, McCoy, Shuff Nays: Lawton THE MOTION CARRIED, THE ITEM WAS APPROVED Land Use Review Commission Page 7 April 14, 2022 3. APPEAL ZBA220008 Address: 811 W Mountain Ave. Owner: Cindy & Earl Caditz Petitioner: Steve Josephs, Contractor Zoning District: N-C-L Code Section: 4.7(D)(2)(a)(2) Project Description: This is a request for a variance to increase the allowable floor area in the N-C-L zone by 1,127 square feet. The total square footage allowed on the lot is 2,690 square feet, and the proposed alteration will result in a total floor area of 3,817 square feet. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is located on W Mountain Ave, near the corner of W Mountain Ave and S Grant Ave. There is an existing primary house and an existing accessory building. The existing primary building does have some second-floor level to it. In this case, we are demoing the existing second floor and building a new second floor. Beals explained that the request would entail going from a non-conforming use, demoing that, and asking for a variance to come back to what is there a maybe a bit over. Beals presented pictures of the current and proposed structures, stating the existing building does have some portions of the second floor that currently used as living space, and other sections that are used as attic storage areas. The proposed structure would include a true second floor that extends to the entirety of the building footprint. The south elevation shows more of the existing second floor, while the north elevation currently appears to be more of a single-story space. Commission member Lawton asked Beals to confirm that the current second-story space is non- conforming as far as usage. Beals clarified that the current second story is non-conforming based on square footage. Commission member Meyer asked Beals if proposed eave heights are in compliance with Land Use Code requirements? Beals stated that eave height requirements pertain to accessory buildings; we are considering the wall heigh requirements for primary buildings. The proposed building should meet the requirements for wall heights. Beals stated the wall height maximum is stated as 18 feet; wall heights within the elevation are noted as 17 feet 10 inches. Vice Chair Shuff asked if we have a break-down of existing upper floor area versus the proposed space in terms of total square footage. Beals directed Shuff to page 26 of the Hearing packet. Shuff stated that the way it is being presented, the existing and proposed FAR appear to be the same. Beals concurred, noting the N-C-L zone district has its own way of calculating floor area. The applicant can help to clarify the specific uses within the proposed second story area. Shuff asked Beals if it were safe to assume that the current primary structure was built under a previous version of the N-C-L zoning requirements. Beals agreed that it would be safe to assume that to be true. Additionally, different portions of the house were probably approved a different times/part within N-C-L. Application Presentation: Applicant representative Steve Josephs addressed the Commission and agreed to hold the hearing in a hybrid format. Josephs stated the current second story is “all over the place” and is carpeted wall-to- wall except for a vaulted area just to the left of the front door. Josephs stated he attempted to calculate some percentages based on various wall heights but was later asked to do it as a square footage of the whole second floor. When calculated in this manner, the proposal would not add any additional square footage, which is already over the allowable maximum. The homeowners want to make changes; how would one justify making changes while also reducing the overall square footage and thus reducing property value? Instead, the applicants believe the best thing to do is to take the existing Land Use Review Commission Page 8 April 14, 2022 footprint, ensure overall heights are in compliance, and reconstruct a new second story. Josephs offered a few reasons for doing so, including a history of multiple additions to the property which present differing floor heights/uneven floors. A new second-floor platform above first story walls would provide a new, consistent floor level. The current homeowners are looking to clean-up and simplify the flow of the second story. Chair La Mastra asked Josephs to clarify the “they” referred to when Josephs stated he was directed to calculate as existing floor area, asking he was referring to City staff. Josephs affirmed that he was directed to calculate in this manner by City staff. Commission Discussion: Vice Chair Shuff stated he knew the previous owner of the house and can confirm the assessment of the second floor as being pretty cut up. The addition does end up being a lot of square footage, and the vaulted area in the front is counted as part of FAR. The current home has a smaller roof from than the proposed structure; the front portion of the second level does create a bit more square footage than what is there today. Shuff stated his appreciation for the applicant’s attempt to keep the eave line low as possible, to meet land use code there. The house is large for the lot, but the footprint does already exist. The Commission today is looking at size and scale. Chair La Mastra asked, when viewing the east and west elevations of the new structure, where the smaller roof line ends, and the larger roof line begins. How much of the house is being raised u compared to current? Josephs indicated the transition occurs approximately mid-way back, where the roof hips up a bit over the fourth window from front. Josephs stated the interior wall height below the lower roof portion is 11 feet before the angle of the roof begins. La Mastra asked Josephs if he could provide an overall height of new and existing gable roofs, for comparison. La Mastra commented that the proposed structure presents a massive side elevation. If superimposed over the existing elevation, how much massing is actually being added? When viewing the aerial view, the home appears to be significantly longer than neighboring homes. Shuff commented that the home was originally a one-story front, technically with eleven-foot walls before the 14-foot portion. If one really examined that condition today, where the 14-foot offset occurs, it would not be the full area. What is being proposed is increasing floor area. Beals stated when you have something that is non-conforming and you self-demo, you can’t automatically bring back/reconstruct what was there, but instead have to reconstruct back in a way that is in compliance. The simple calculation was to look at basic square footage and bring that back in the reconstruction. However, there are different roof forms and pitches in what is being proposed when compared to existing. So, it does seem to be an increase in what is existing in that sense. Shuff commented that this is something that needs to be considered; what level of demolition triggers compliance? There is a line there, but that line may not be defined. Beals stated that if you are removing square footage and then bringing it back, that definitely triggers a need for compliance. Josephs stated they are trying to maintain existing first-floor walls; some window locations will be changing but the goal is to maintain the current framing as much as possible. Josephs also answered a previous question regarding eave/roof heights, indicating the existing roof peak is approximately 21 feet; the new building peak would be approximately 25 feet. Commission member Meyer stated that if we were comparing the proposed design to existing, we may be able to argue that it is nominal and inconsequential. However, the challenge is that we are comparing the proposed to what is allowed. Nothing about this is nominal and inconsequential when compared to what is allowed by the Land Use Code. Meyer commented that when reading the applicant’s letter, none of the items included check the box for nominal and inconsequential when comparing to what is allowed by Code. Meyer stated his opinion that it appears to be too much above Land Use Review Commission Page 9 April 14, 2022 and beyond, with the added fact that we are demoing what is grandfathered in and not allowed already. That seems to be a self-imposed hardship. Meyer recommended that it be in the best interest of the applicant if they can what they can do to work around the existing conditions as best as possible. As presented, Meyer does not feel he can support a request that is so far from the allowable code. La Mastra agreed with the comments offered by Meyer, adding that we can’t look at this in context of what is already existing. Based on information offered by Beals, when a structure is demoed, it effectively reverts back to “ground zero” in relation to code and current requirements. If we were presented this with a 40% increase, we would never call this nominal and inconsequential. As proposed, the entire front half of the property is now floor area. La Mastra stated that given this context, it is harder to support the request. Shuff agreed with the comments offered by Meyer and La Mastra. Shuff stated that if the intent were to merely remodel the existing second floor, without physically changing the confines of what was previously built, it may be easier to approve. By capturing the front area within the proposed reconstruction in addition to the already substantial remainder of the project, it becomes difficult to justify based on what is allowed and what is requested. La Mastra asked Beals if he could provide clarification regarding where the code defines the demolition: is it due to the fact that the entire second floor is coming down? Is it tied to the need to pull a building permit to re-do the interior without changing the footprint? Where is that line? Beals responded that he would find that specific answer, and in the meantime provide some background. Beals commented the Land Use Code and Building Code need to work together in this type of instance, to determine for instance what is a complete demo vs. renovation? In past, we have seen examples such as: a wall of a house was encroaching into a setback. They were able to get it down to the studs and leave them in place, then build off of that wall. That interpretation has happened in the past; with building code updates and a new chief official, that interpretation has been questioned. Is that truly an alteration, or a complete restructure? In near past, it has been titled a complete restructure rather than alteration. We have looked at this in different eras, just as this home was built over different eras. Beals stated that right now, we would stand that even leaving just a wall is not enough to say it is just an alteration, when it is really a reconstruction of an entire floor. At this point, it is something that is left for interpretation by City staff, and then could be appealed to the Building Review Board or this Commission as well. Shuff commented based on Beals information, that potentially if the applicant wanted to leave the second-floor walls in place, make corrections to the second floor, maybe even look at re-roofing that portion, that they would truly not be changing the essence of what is there today. Shuff comments his belief there is nuance within what level of alteration there is, and it gets a little fuzzy. There is opportunity to make minor modifications to the upper level, but not really to change the condition of the front area. La Mastra stated what she believed she heard from Beals, which is even to correct the existing second-floor as far as bringing portions to the same level, without changing massing or heights, that would be considered to be a demo, and would still be subject to this Commission to approve floor area ratio, even if there were no changes to the elevations. That seems problematic if one can’t fix structural issues in certain instances i.e. what if a tree branch fell on that portion. Beals responded that on a non-conforming structure, if there is a natural disaster you are allowed to reconstruct a non-conforming structure. In this instance, the structure is in place and may not be ideal, but it seems to be we’d issue a permit for it being sound, so it is really a case of self-demoing a non- conforming structure, and if you want to bring it back it should be coming into compliance or seeking a variance from this Commission. Land Use Review Commission Page 10 April 14, 2022 Commission member Lawton agreed with Beals’ assessment, stating that in respect to this particular project what is being demoed is considered the non-conforming space. Then the expectation would be whatever design comes back would be conforming. Lawton can understand that expectation moving forward. Additionally, this proposed structure would be massive and needs to be considered in the context of the surrounding neighborhood. Commission member McCoy commented this is one of the hardest types of cases the Commission hears, wherein an applicant wants to improve a potentially non-conforming structure and not substantially change it. In comparison to what is there and what they want to do, there is no much difference. Meyer responded that when comparing what is proposed to what is existing we may be able to argue nominal and inconsequential; but we can’t make that argument when we compare the proposed to what is allowed by the Land Use Code. McCoy stated from his point of view, this reconstruction would make the property more valuable, and would also create increased valuation for surrounding properties. In that argument, there are less bounds on rules and regulations, so it may not be a legitimate argument. McCoy agrees with the first part of Meyer’s assessment, which is that the proposed is not that different from what is currently there. Because of this, McCoy would be in support of granting the variance. Meyer asked McCoy if he could still stand on his argument knowing that what is there will be removed? McCoy responded in reference to Shuff’s earlier comments, asking if there would in fact be any more floor space created. Shuff confirmed more floor space would be created. McCoy again stated this was a hard decision, as he believes the addition to the home would increase individual and neighborhood property values, and it isn’t significantly different from what is already there. La Mastra commented that one thing that helps the existing house is the front elevation, which is smaller. On the really narrow lots, one doesn’t perceive the full mass from street view. If the second story on the new version were to be stepped back, would that help? Shuff commented that was his thought behind his previous comments; what if a remodel was allowed to for the existing second floor, keeping the existing walls. That way it maintains the existing condition and the current FAR is set up. If there are no physical changes to the existing FAR, there would not be as big an issue as it would not change the ratio of the front façade. As proposed, the new front façade would be taller, more massive, and picks up floor area that isn’t currently there. La Mastra summarized the conversation, noting that there did not appear to be consensus amongst the Commission to approve the request as presented. La Mastra asked the applicant if they would be interested in tabling the item and coming back to it for a continuance, and maybe making some modifications based on the conversation? Or would they prefer that the Commission make a decision today? Applicant representative Josephs stated the evolution of the project began with an attempt to build under existing conditions. After multiple efforts, the homeowners were not in favor of what was being suggested. Without starting over, there may not be a path forward. Josephs stated that it wouldn’t hurt to table the item and try again but was not confident his clients would feel comfortable moving forward. La Mastra asked for clarification regarding process, asking that if a decision were to be made to deny the request, would the applicant need to endure a waiting period before re-applying. Beals indicated there would be a required waiting period if the exact same design and request were to be submitted. There is not a waiting period for this commission if an applicant submits a re-designed or reduced request. Land Use Review Commission Page 11 April 14, 2022 Based upon Beals clarification, La Mastra again asked Josephs if he would prefer that the item be tabled for a continuance, of if he preferred that the Commission make a motion today. Josephs asked if a continuance meant he would need to come back with an alternative design. La Mastra confirmed, stating for example that a new design might include modifications to the step backs and changes to the front façade that would reduce mass potentially. Beals commented that a continuance may mean that the applicant wants to re-do the design and come back with changes, or they want to keep their design and come back with additional information that is not presented at this time. Continuance based on a re-design would need to be submitted rather quickly in order to be placed on the May or possible June agenda. Josephs asked how much more time a continuance would provide. Beals stated that application deadline for May’s meeting has already lapsed, so a continuance would provide an opportunity to move the item to May without a new application. A continuance would also not introduce a new application fee. Josephs stated his preference to table the item for continuance to the May 2022 Land Use Commission Hearing. Commission Member Shuff made a motion, seconded by Lawton to CONTINUE ZBA220008 until May 2022, or a later time of the applicants choosing, up to six months from today. Yeas: Meyer, La Mastra, McCoy, Lawton, Shuff Nays: THE MOTION CARRIED, THE ITEM WAS TABLE TO THE MAY 2022 MEETING **Break La Mastra granted a five-minute break at 10:10am** **Break ended at 10:17am; Hearing was resumed** ROLL CALL: All Commission members were present. 4. APPEAL ZBA220009 Address: 320 Edwards St. Owner: 320 Edwards LLC (Ralph Kiel) Petitioner: Mark Taylor Clifton (Buyer) Zoning District: N-C-M Code Section: 4.8(D)(2)(b)(1), 4.8(E)(4) Project Description: This is a request to build a second story addition onto an existing house. The proposed design requires two variances: First to allow the addition to encroach 4.92 feet into the required 5-foot side- yard setback, matching the existing encroachment of the 1st story. Second to exceed the total square footage allowed on a lot in the NCM zone by 50.77 square feet. Total square footage allowed on lot is 3,175 square feet, and the proposed alteration will result in a total floor area of 3,225.77 square feet. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is located mid-block on Edwards Street. This property was included in a previous request made to the Commission by a previous potential buyer, who was requesting for a home occupation to be used in the secondary building on the property. That sale did not go through. Beals noted the secondary building is not a dwelling unit, it is just an accessory building, and provides more space for the occupants of the primary building. Beals described the request, noting it is a request to build a second story on a non-conforming structure. This building is an existing one-story building; the non-conformity comes from the side setback. The building is almost right on the property line, with .08 feet of space between the building and the property line. The request is to continue the existing location of the wall up to the second floor. A permit would have been issued if the second story walls were moved back to meet the five-foot setback requirement. Land Use Review Commission Page 12 April 14, 2022 Beals presented pictures of the existing structure along with renderings of the proposed structure. Some design elements are included in an attempt to meet an 18-foot wall height, with wall bends mimicking eave height elements. Pictures of the property line stake presented by Beals show how close the existing wall is to the lot line, which is further evident in a lot improvement survey drawing included in the materials. There is an existing driveway on the west side of the property, and the property does have rear alley access. The existing accessory building is visible from the alley and is seen in photographs taken from the alley perspective. Beals re-stated the two-fold nature of the request: 1) to build within the existing side setback, and 2) the second-floor addition would add square footage, putting them over the allotment by just over 50 square feet of what is allowed on the property. Commission member Lawton asked Beals if he could identify the age of the current structure. Beals stated the building was originally constructed in 1900. Beals noted the first Land Use Code was adopted by the city in 1929. Commission member Shuff asked Beals to confirm that if the applicant were to use the existing east wall in its current location, but then step back the second story to comply with the required setback, that would be allowed. Beals confirmed this as accurate. Existing wall could be used, and new construction would need to be stepped back in order to comply. Application Presentation: Applicant Mark Taylor Clifton addressed the Commission and agreed to hold the hearing in a hybrid format. Clifton stated that one of the reasons to bring the new wall to the lot line was to mitigate runoff to the neighboring property. Right now, as the roof sits, there is a small gray gable where there used to be a widow-walk roof with a diamond and a flat roof. Water damage is visible from the interior. At some point somebody built a small roof over the top, which caused drainage to flow to the neighboring lot. Clifton explained that by bringing the second story wall completely up, it will take the water that would have run off the side to the neighbor and control the flow in a better way. La Mastra asked the applicant if gutters could address the runoff problems. The applicant stated that the proposed plan does not include gutters, and even as it is the eave overhang is illegal. Because it is on the lot line, technically nothing should be overhanging. Any overhang into the neighboring property is not allowed. La Mastra asked Beals how zero lot line water runoff is handled for neighboring properties. Where is the balance between approving a setback and addressing water issues with neighboring properties? Beals stated that based on his knowledge of the Building Code, the code would say don’t cross the lot line. Depending on how close they are to the lot line, some elements would require additional fire rating. Beals is not sure what a gutter fire rating would be. Is there a way to ask for a variance to a building code? Yes. It may also necessitate some negotiation with neighbors. Beals asked if there may be a way to adjust the structure to keep everything within lot lines? Perhaps, but it would require more effort, time and cost. Beals commented he is unsure if there is another instrument for recording the crossing of the property line wherein those crossed portions would also be sold together. Commission member Lawton asked the applicant to describe how water drainage is changed or mitigated in the proposed design. The applicant explained that the roof valley would shed water to the front and rear corners of the home, where he is able to install catch gutters. Commission member Meyer asked if the existing roof currently overhangs into the neighboring property, and by approximately how much. The applicant indicated the existing roof does overhang the Land Use Review Commission Page 13 April 14, 2022 neighbor’s yard by approximately seven inches at the front and approximately two inches at the rear, due to the structure being built at a slight angle. Commission member Shuff provided information regarding the fire rating requirements, noting that it is a one hour rated, zero to three feet, and no openings allowed. Technically, a window wouldn’t even be allowed at that distance. As far as general discussion items, Shuff stated his understanding of the desire to try to use the full footprint; however, Shuff is of the opinion that the second floor really needs to step back. A bad condition should not be made worse by making it into a second level. Shuff does not see how the Commission could justify that. Additionally, there are some problems with the drainage. If you look at it by the hard line of the code, you would almost need to create a parapeted roof with literally no overhangs. Even a gutter would project 4-5 inches. There may be options and constraints that create opportunities for design. Shuff commented the increase in floor space is nominal, but the zero lot line conditions present here create a tough situation. La Mastra commented that perhaps her next question is a moot point given Shuff’s previous point regarding openings from 1-3 feet from property lines; but asked the applicant to describe the size and the sill height of the second story windows. The applicant responded that the sill height of the second story windows is 4 foot 8 inches, and measure 12 inches by 18 inches. La Mastra asked Beals if the side were to have larger dormers, how would that work with the setbacks. Beals stated dormers usually do need to meet the setback; there may be an allowance to encroach to a middle distance. Beals offered to check code for final clarification. Commission Discussion: Commission member Meyer commented regards to the extra square footage, he views that element of the request as nominal and inconsequential and can support the request. In regard to the setback, if the upper floor windows were to be removed from the design, then all you have is essentially a roof replacement, wherein a lower-sloped roof is removed and replaced with a higher-sloped roof on top, at the same time reducing the roof overhang so that it doesn’t cross the property line while also fixing a drainage problem. Meyer stated he thinks it is a great proposal; there are issues with the windows on the property line that need to be addressed by the Building Department, but that is not in our purview. As long as the new roof is minimizing overhang as much as possible and using good flashing and doing detail properly, the request can almost be viewed as a roof replacement project. La Mastra asked Meyer how he felt about the wall extension; Meyer responded that the new wall basically a gable, to the point that it is almost a story and a half design, not a true second level. Shuff agreed with the argument, noting that only 1/3 to ½ of the space is usable living space on the second level. Shuff asked Meyer how he felt about the flared wall as proposed. Meyer commented he didn’t understand the flared wall, other than it being an attempt to meet the 18-foot height requirement. Meyer stated what is interesting is that element is not being proposed as a variance request. Why is that? The applicant stated that the design of the wall is within the bounds of the code; it goes up to 18 feet and then steps back at the required 2:1 ratio. It is still on the lot line, hence the request for variance. Meyer asked Beals for clarification of wall height requirements, stating his understanding that code measures the 18-foot maximum to the top of the wall, but has nothing to do with the roof. So, one could have a roof over 18 feet tall as long as there is no wall under it. Beals responded the 18-foot wall height is a standard at a five-foot setback, not a zero-lot line. That is why a variance is needed in this instance. La Mastra commented despite the element being labelled a wall or roof it still doesn’t matter, as code is concerned with the area defined between the top roof angle down to the black horizontal line. That is Land Use Review Commission Page 14 April 14, 2022 the part that is out of compliance. Typically, when encroaching in, there is a correlating reduction. Here, we are encroaching 90%+ without and reduction. Meyer asked the applicant for the height of the peak of that wall. The applicant responded the height of the peak measures at 23.1 feet. La Mastra commented there are multiple reasons why we have these setbacks, including fire code issues, privacy, and others. When a structure with windows is right at a lot line and can look directly down on adjacent properties, that may need to be addressed by the Building Code. La Mastra stated her curiosity regarding dormers – this side window and wall element look almost like a really large dormer. La Mastra wondered if we could accommodate the front elevation, which is very nice. La Mastra would be more agreeable to running a 5-inch gutter on the side of the house rather than building up an 18-foot wall height on a zero-lot line. That seems not comparable in impact. Beals commented that in some cases there are certain elements allow encroachment into the setback. If there were a dormer at the five-foot setback, and it was flush with the lower level, it would be considered as part of the wall height and would need to maintain the 18-foot wall height. La Mastra asked what types/sizes of dormers could be allowed, and the differentiation between a window face and a wall. Beals explained that in cases when the dormer is not flush with the wall below it, you draw the imaginary line angle, and if the dormer fits in the line, then it can work. La Mastra asked if dormers are allowed encroachments; Beals stated that they are not. Shuff stated there has to be a distinction between a re-roof being a gable-end to an attic vs. a gable- end to finished space. There is a subtlety there. Shuff commented that he is struggling with this request, especially given the zero-lot line nature of the proposal. Even two or three feet can be difficult. Shuff understands this is an existing condition, but once you propose to change something, where does this Commission draw the line in what is being brought up to code? La Mastra agreed with Shuff’s comments, stating that we do need to be clear about what our basis line is. As proposed, La Mastra would not be in support of the request. Commission member Lawton asked Beals if there were any neighbor correspondence submitted or received for this variance request. Beals responded that he had not received any contacts from neighbors. Beals commented there is a non-essential driveway to the west, and perhaps that represents an alternative area to create additional square footage. There may also be alternative means to correct drainage without increasing square footage right in the setback. The applicant stated he did speak with the neighbors who indicated they were happy with the project; La Mastra responded that it was difficult for the Commission to not have those statements officially submitted for the record, because it then becomes hearsay. La Mastra reiterated that this request has two variances. one to increase square footage and the other to increase wall height. La Mastra stated that based on the current discussion, she would be in favor of increasing square footage but is not in support of increasing wall height on a zero-lot line. There are safety and privacy concerns, especially when the Building Code calls for no openings and fire ratings. There is a reason why we have setbacks of structures, and this could add to a potential safety hazard situation. Meyer commented that what is interesting is that by denying the encroachment setback, there is also a denial of the extra square footage, because it can no longer be fit in the current design. La Mastra stated that as Beals pointed out, they could put the additional square footage someplace else in a redesign. Once approved for the additional square footage, the applicant would not need to come back with a re-design assuming that the re-designed additional square footage meets all other requirements. Land Use Review Commission Page 15 April 14, 2022 Shuff asked the applicant if they would prefer a continuance to provide time for a re-design. Applicant Clifton stated his preference for a continuance, so long as it would not be a waste of the Commission’s time. If they think right now that a five-foot setback is appropriate at this time, he can redesign from that. La Mastra stated three feet is the cut-off for windows to be allowed, per building code. So, there would be a two-foot potential encroachment. Beals stated that if the applicant is willing to entertain the modifications as discussed, perhaps the Commission would entertain a motion to approve at a three-foot setback rather than zero-lot line. La Mastra commented it is hard to approve something that has not yet been seen. Meyer questioned how the gutter is then addressed? La Mastra responded there is a difference for fire code between a five-inch gutter and a wall. Commission Member Shuff made a motion, seconded by Meyer to CONTINUE ZBA220009 to May 2022, or a later time of the applicants choosing, up to six months from today. Yeas: Meyer, La Mastra, Mc Coy, Lawton, Shuff Nays: - THE MOTION CARRIED, THE ITEM WAS TABLED TO A LATER DATE 5. APPEAL ZBA220010 Address: 124 N Grant Ave. Owner: Yao Tingting & Robert Cohen Petitioner: Collins Ferris, Designer/Consultant Zoning District: N-C-L Code Section: 4.7(E)(4) Project Description: This is a request for a new accessory building with habitable space to encroach 2 feet into the required 5-foot side setback. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the Commission has previously heard this application earlier this year. The Commission did entertain a variance request for a similar proposed building and setback. The applicants and owner have refined their proposal and have a new request before the Commission. This property is on N Grant Avenue, second from the north alley. There is an existing shed on the property that does encroach into the setback. The design is to replace the existing structure with a new structure and maintain a similar setback. The new wall would be almost in line with existing in both location and length. The habitable space portion of the building is not setback to meet the minimum five-foot setback. The workshop and bathroom area is still proposed in a similar encroachment to existing. Beals noted there are no windows on the east wall that face the property line. There is a small window in the wall jog, bit it does not face into the neighbors’ property. Street view photographs show the driveway that leads from street to the existing shed building. Views from the alley side show a six-foot fence running roughly along the property line, as well as the placement of the existing shed. This request is essentially a new variance request because it is a refinement of the proposed design that was heard previously and can now be considered again. Commission member Lawton asked Beals to describe the significant changes between the original request/design and the one currently presented. Beals explained two main things to note: the applicant performed a survey and determined exact property lines; and the previous proposed building wall Land Use Review Commission Page 16 April 14, 2022 length along the north property line did not include the current jog. Therefore, the entire length of the proposed wall was encroaching into the setback. The current proposal has reduced the bedroom size and taken the wall back in to meet the required five-foot setback. Lawton asked what decision the Commission came to last time; Beals indicated that the previous request for variance was denied. Application Presentation: Applicant representative Collins Ferris, Designer, addressed the Commission and agreed to hold the hearing in a hybrid format. Ferris noted that based on the feedback from the initial meeting, it was deemed consequential that the entire 36-foot length of the wall was encroaching into the setback, and it would be more amenable if the project were more of a replacement of the existing structure/encroachment. Ferris referred to additional comments made in the previous meeting that perhaps the building could be moved to an alternative site on the property, though that was deemed to not be feasible due to existing matured landscape beds. Additionally, the applicant is wanting to improve their workshop space and maintain the current access with the existing drive. The current workshop has zero insulation and is constructed from simple stud framing. The new structure will the insulated, with sounds protections built in. The new proposed structure will maintain the existing footprint and bring some elements into compliance regarding setback. Chair La Mastra thanks the applicant for their willingness to address concerns and come back again with a re-design; it appears to be well improved. Commission Discussion: Commission member Shuff agrees with the statement offered by La Mastra, agreeing that it appears to be an improvement of design and the structure is nice and simple with minimal scale. Shuff does not have any problems with the current design. Commission member Lawton recalled previous discussions regarding how the building could be modified; the redesign seems to have taken some of those ideas into consideration while also pulling the habitable space within the required setback. Lawton stated his support for the current request. Commission member Meyer offered his support for the request, expressing his appreciating for the applicant’s efforts to make design changes as well as performing the survey to ensure precision. The current design seems to fix the challenges that were identified during the previous hearing. Commission Member Lawton made a motion, seconded by Shuff to Approve ZBA220010 for the following reasons: the variance request will not diverge from the standard but in a nominal and inconsequential way when considering the context of the neighborhood, and will continue to advance the purpose of the Land Use Code contained in section 1.2.2. The granting of the modification of standard would not be detrimental to the public good; there is an existing six- foot fence between the properties on the property line; the encroachment is limited to the workshop portion, and the workshop portion is 9 feet in height and 23 feet in length, and there are no windows on the encroachment facing the north property line. Yeas: Meyer, La Mastra, Mc Coy, Lawton, Shuff Nays: - THE MOTION CARRIED, THE ITEM WAS APPROVED • OTHER BUSINESS Beals noted that we will continue to meet in-person for next month’s meeting. • ADJOURNMENT – meeting adjourned at 11:11am