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HomeMy WebLinkAboutLand Use Review Commission - Minutes - 04/13/2023 Ian Shuff, Chair Dave Lawton, Vice Chair David Carron Nathaniel Coffman John McCoy Philip San Filippo Katie Vogel 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 13, 2023 8:30 AM • CALL TO ORDER and ROLL CALL All Commission members were present with the exception of member Coffman. • APPROVAL OF MINUTES FROM PREVIOUS MEETING (March 9, 2023 Minutes) Commission member Lawton made a motion, seconded by San Filippo to approve the March 9, 2023, Regular Hearing Minutes. The motion was adopted unanimously. • CITIZEN PARTICIPATION (Items Not on the Agenda) -None- • APPEALS FOR VARIANCE TO THE LAND USE CODE 1. APPEAL ZBA23003 Address: 2615 Chase Dr. Owner/Petitioner: Brian and Tamora Hood Zoning District: L-M-N Code Section: 3.5.2(E)(3) Project Description: There are two requests for an accessory structure: 1. Request to encroach 6.5 feet into the required 8-foot rear setback. 2. Request to encroach 3.5 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 property is located mid-block on Chase Dr, north of Topeka Ln. The request is to get a building permit for a shed that has already been installed. The shed is approximately 1.5 feet from the rear property line and from the side property line. The shed is the size and height that requires a building permit. LAND USE REVIEW COMMISSION MEETING MINUTES Land Use Review Commission Page 2 Minutes – April 13, 2023 When a building permit is required for an existing structure, it is required to meet the setbacks of the zone district. In this case, that means an 8-foot setback from the rear property line and a 5-foot setback from the side property line. Beals presented images of the property that show the shed in its current locati on; pictures show how close it is to the rear and side property lines; there is also a patio that extends from the back of the house into the yard. The shed location was chosen so as to maintain some amount of usable yard area. In evaluating this request, Staff determined that the subdivision was originally platted with easements along the property lines. There is a 5-foot drainage utility easement on the rear property line, as well as a 5-foot drainage utility easement on the side property line. This means that even if this Commission were to grant a variance for the requested 1.5-foot setbacks, the applicant would still have to either move the shed out of the easements, or would need to request an easement vacation from the Engineering Dept. At this time, Staff is recommending allowing the encroachment to match the easements, meaning a 5- foot setback from both the rear and side property lines. That is one option; the other option would be to grant the variance as requested, and then allow the applicant to pursue an easement vacation from Engineering. Additionally, the Commission could table the item until an easement vacation is achieved. Beals stated that he was unsure if utilities were currently running within the easement, or if the utilities partners would be amenable to vacate the easement. Therefore, it would be a risk to approve a variance without knowing if an easement vacation would be permissible. Chair Shuff asked Beals if, from a building permit standpoint, an accessory building under a certain height does not require a building permit or have to meet any setback requirements, and what that height is? Beals responded that 8 feet is the maximum height allowable without a permit. Shuff asked for the height of the shed in question; Beals stated the height of the shed is over 8 feet, but no sure of the exact height. Commission member San Filippo asked staff if a third possibility would be for the Com mission to approve the request as-is, with the applicant agreeing on-record that if there was work to be done in the easement then the applicant would move the shed, at their expense, to allow the work to occur? Beals stated that would be out of the scope of this Commission, as it does not deal with easements. That issue would need to be taken up with the City Engineer. Commission member Lawton asked if the shed was located on a concrete pad or free-standing? Beals responded that he was unsure and would look to the applicant to clarify during their presentation. Applicant Presentation: Applicants Brain and Tamora Hood, 2615 Chase Dr., addressed the Commission and offered comment. Mr. Hood began by stating that he did not have new information above what had been presented and was looking forward to answering questions. Mr. Hood also apologized to the Commission for not being aware that a building permit was needed six years ago when the shed was constructed; the contractor at the time informed them that no permit was needed. In response to a question of height from Chair Shuff Hood stated that the shed is approximately 9-feet tall. Additionally, Hood noted that the shed is built on a foundation of pressure -treated 4”x4” timbers. Hood stated that they would be amenable to some sort of agreement regarding movement of the shed if/when easement work is needed as discussed by San Filippo. Hood stated the shed has stood for the past six years without any issue. Hood recently served on his HOA Board, and during that time the Board had to enforce a CCR violation who, by process of elimination and timing, seems to have filed a complaint against the shed as a retaliatory measure. Hood noted that while CCIOA [Colorado Common Interest Ownership Act] may not pertain to municipalities, it does have a stature that HOAs only have one year to enforce HOA violations. No violations have been noted regarding the shed in the previous six years. Continuing, Hood noted that as soon as they received their notice, they immediately called Building Services and spoke with staff-person Jacob Hoffman. Hoffman was very helpful and performed an on- Land Use Review Commission Page 3 Minutes – April 13, 2023 site meeting and acknowledged that the City is often used as a tool when neighbors feel there is a dispute or an “axe to grind”. The Hoods also contacted two experts; the company that originally built the shed and Colorado Shed Movers. Both advised that custom-built sheds are not meant to be portable, meaning that whether the shed is moved one inch or across the yard, it would risk damaging the structural integrity of the shed. At that point it would not be repairable and would need to be torn down. Even if the shed were to be re-located, it would require a complete re-design of existing irrigation systems and would greatly reduce usable portions of the back yard. Hood stated that their property manager and HOA Board Member submitted a letter that described HOA policy that does not allow the placement of sheds but in the corner of rear yards. Most shed owners in the HOA have neglected to seek HOA approval and/or building permits. If the shed were to be moved, they would need to address the HOA policy as it is currently drafted. During a walk around the neighborhood, the Hood’s counted no less than 19 sheds that were located in a similar manner to their shed. How would this requirement apply to all the other existing sheds? No o ne would even be aware of this had complaint been lodged in a retaliatory manner. Hood then reiterated his reasoning and justifications for the current placement of the shed as well as the variance request. Commission member San Filippo asked if the drainage and utility easements were currently being used and/or filled with utilities? Hood stated the drainage utility to the north between their property and a neighbor’s is active; there may also be a telecom line in the rear easement, but there is no electrical/water/sewer. Public Comment: Audience member David Bonelli, 2609 Chase Dr. appeared in support of the variance request. Mr. Bonelli appeared in support of the request and stated that the shed in question in no way impedes the use or enjoyment of their property. Placing a shed in the middle of the yard, to meet setback and easements, would not allow full use of the yard. Commission Discussion: Commission member Lawton asked staff if the shed height was at the approved maximum of 8 feet, would the Commission even be hearing this appeal? Beals responded no, if the shed were under 8 feet in height and less than 120 sq ft, it would not require a variance from this commission. Lawton asked staff if it would still be an issue from the easement standpoint; Beals responded that easements could still pose a problem in this scenario, but that is outside of the scope of this commission and is instead within the purview of the City Engineer. Commission member Lawton offered his opinion that the Commission appears to be a bit “hamstrung” with what we can approve. In one case or another, despite what this Commission can approve, the shed may still have to be moved due to easements. Moving the shed could potentially destroy the shed, which is not the desired outcome. Commission member San Filippo wondered whether the applicant would be willing to carry the application until they are able to contact the City Engineer to determine if a waiver can be granted regarding the utility easements. That may then inform how this commission could address the setback variance request in the future. Commission member McCoy stated that he has seen this scenario before many times in the community within his professional work as a real estate broker, wherein sheds are placed within easements. McCoy stated his understanding that when a homeowner places a shed (or similar) within an easement, they do so at their own risk. The sh ed may never have to be moved depending on how/when the easement may need to be accessed in order to service or place utilities. McCoy asked Beals what his experience has been with the City/Engineering Dept.’s determination regarding structures placed in easements. Beals stated that he has previously seen scenarios where the Engineer requested that structures (sheds, garages, above-ground pools) be removed from easements. Regarding drainage easements, those are intended to move stormwater away from structures and drain towards catchments. Even if that type of drainage doesn’t have active utilities installed, it is still an important piece of our stormwater infrastructure. Commission member Carron offered his agreement with the previous statements and feels that even if the setback variance were to be granted today, the issue of the easement remains outside of the Land Use Review Commission Page 4 Minutes – April 13, 2023 scope of this commission. Therefore, it may not be best to reach a decision today, prior to the applicant engaging the City Engineer regarding the easement. Chair Shuff commented that from his perspective, the height of the existing shed could be considered nominal and inconsequential and does not present an issue. This commission in the past has dealt with other variances that are dependent on additional permitting or decision, mostly having to do with Historic Preservation and associated reviews. What are the options available to this commission? We could recommend alignment with the easements, per staff recommendation: we could consider approving existing shed location with additional conditions/agreements regarding moving of the shed if/when needed to clear the easement; or the item could be tabled. (Chris Hayes, Assistant City Attorney, advised the commission that the question to be decided by the commission today relates solely to Land Use Code Section 2.10.4, and the standards set forth in that section. To the extent that there may be future issues with Engineering, that could be addressed at a later date). Shuff commented from a justification standpoint, if a motion is made based on staff recommendations that is one option. If a motion is made allowing the shed to remain where it is, we must ask if the height of the shed is considered nominal and inconsequential enough based on what would be allowed if it was slightly smaller. Lawton asked to clarify, that we could approve the variance as presented today with the condition that it must also be reviewed and approved by City Engineering. Carron offered some discussion on what the conditions may be. Beals added that the appeal could be approved without conditions, and the applicant would still need to go before Engineering – that is one option. If the request were denied by Engineering, the applicant would need to submit another variance reques t to this commission, which would also require a new application fee. Beals explained that the item could also be tabled today, which would give the applicants time to engage with Engineering and still be able to continue this discussion under the current application, at a later date, and see what would be allowed. San Filippo asked if the applicant would be amenable to having the application tabled, to allow as much time as possible to work with Engineering to determine whether or not the easement needs to vacated? Applicant Hood, while acknowledging the time of the Board and his own time and costs, agreed that the best course of action today is for the item to be tabled. That would allow them to speak with Engineering at other departments as needed, without having to pay an additional fee, Carron asked if the commission were to grant the requested 18-inch setbacks now, and Engineering later determined that it must be moved back to a 5-foot setback, is that still within the variance? Shuff stated that might start the “vicious cycle” of uncertainties between variance requests and engineering requirements. San Filippo asked if the item is tabled, it is done so without further notice? Beals commented that is correct – the applicant would have six months to come before the commission again under the same application. San Filippo commented that six months should be adequate to attain the necessary information from Engineering and other departments as needed. Vice-Chair Lawton made a motion, seconded by San Filippo, to TABLE ZBA230003. The item may be re-heard by the Commission within six months of today’s hearing date. Yeas: McCoy, San Filippo, Shuff, Vogel, Lawton, Carron Nays: Absent: Coffman THE MOTION CARRIED, THE ITEM WAS TABLED Land Use Review Commission Page 5 Minutes – April 13, 2023 2. APPEAL ZBA230004 Address: 137 2nd St Owner/ Petitioner: Darel N. Emmot Zoning District: R-L Code Section: 4.4(D)(2)(d) Project Description: This is a request for a single-family dwelling to encroach 1.63 feet in the required 5-foot side setback. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is located on 2nd Street, just south of Logan Ave. The request is for a new addition to an existing house, to meet the existing encroachment of the existing house. Beals showed pictures of the property, describing the existing portion that is planned for d emolition as well as the rendering of the proposed new portion. Outside walls along the front would be maintained; the new addition would extend to an existing garage and would meet the current encroachment of the current structures. Elevation drawings were presented, showing front and side elevations, including the portion that would encroach into the side property. Beals noted the original structure was built into the setback; there are numerous other homes within the neighborhood that were similarly built into the setback as well. Beals noted, however, that most of these structures are single-story, and the proposed new design places the tallest wall elevation within the side setback. Chair Shuff asked in this residential zone district, is there any eave-height restriction? Beals clarified that within the R-L district, there is not a restriction on eave-height. Shuff also asked clarifying questions regarding some of the measurements. Shuff asked if we know approximately what portion of the existing building is remaining, and from a lineal-foot standpoint, how much is being proposed within the encroachment vs. existing. Based on the provided renderings, it appears to Shuff that the proposed addition would place more linear feet of wall within the encroachment than what is there currently. Beals agreed with Shuff’s observations, estimating that more than 50% of the existing structure is planned to be demolished. More than 50% of what is left is being built up. The length of the addition is longer than existing. Commission member San Filippo asked that if the request were to be approved, would we also be approving the existing structure remaining at a setback of 1.63 feet? Beals answered that the existing structure is not part of the current request and is considered “legal non-conforming”. If/when the existing structure were to be demolished, they do not have a right to build back to current but would instead need to be built to current code. Shuff summarized that if the proposed addition were to setback 1.63 feet, and they left the existing portion not to be demoed, that would be allowed because existing walls can be maintained within their setback. Beals responded that what is out there currently, if they were to build a second story above existing, the second story would be required to conform to code as well because it is considered new construction. Applicant Presentation: Applicant Darel N. Emmot, 137 2nd Street, addressed the Commission and offered comment. Emmot stated for clarification that the proposed addition is not actually a two-story, but instead includes two rows of high windows for the purpose of solar collection. The space above the additional bathroom and bedrooms is actually quite short and is considered a storage space. Therefore, it is really a tall one-story. Emmot clarified that the 1.63 feet identified is the measurement of the encroachment into the setback, so the setback is maintained at 3.37 feet. In respect to the existing structure, the back-half is built to a much lower quality than the front half of the residence. Where one could, by default, have a longer section at the existing setback by extending from the existing structure. The problem is that the Land Use Review Commission Page 6 Minutes – April 13, 2023 existing structure has a very shallow foundation that would have to be mitigated without being destroyed. Therefore, the two main advantages the application is seeking are to maintain the continuity of the north side of the house without having a 1.63-foot jog at the point of joining, as well as the creation of an additional 68 square feet (which is about 10% of the overall addition). Emmot also noted that the surrounding neighborhood has many structures that are within the setback, including their own. Emmot cited a count of 92 different structures in the neighborhood th at are currently within the setback. Therefore, the request does not pose a hardship to neighbors or the context of the neighborhood. Chair Shuff asked for the height of the tall eave included in the renderings: Emmot responded the eave height reaches a maximum of 21 feet. Shuff asked how close the adjacent property is to the property line; Emmot responded the distance is measured to be 18 feet. Commission member San Filippo asked applicant Emmot if they had given any consideration to meeting the required 5-foot setback, due to the fact that the proposed is considered new construction? This would potentially create a jog along the north wall, but San Filippo feels the applicant would have the latitude to do so give that this is a full demolition of that portion of the existing structure. A variance could be avoided all together if a 5-foot setback were to be maintained. Emmot answered this would reduce the planned addition by about 68 square feet; that doesn’t seem like the preference given a choice. While it does not represent a big hardship, it may require incorporating the existing foundation into the new/proposed structure. San Filippo commented that he was not so much troubled by the eave height/second story, if in fact the setback is complied with. San Filippo recently toured this area and observed many homes that have “mushroomed”, where second story additions have been added on top/behind the existing one- story residences. Public Comment: -NONE- Commission Discussion: Chair Shuff offered his opinion that even though this is a one-story with a loft, it is still a very tall building for the site. It feels like the same ceiling height could be achieved for the loft without as much heel length in the truss. Even beyond that, it is a taller faced up against an encroachment. Hardship justification is not apparent, and there appears to be several other options that could be pursued with the design of the addition. Based on those aspects, Shuff is not comfortable with approving the request. Commission member Carron agreed with the statements offered by Shuff, stating that because of the extent of the demolition and rebuild, this addition is essentially new construction (as opposed to renovation), and building code concepts tend to support the notion that new construction ought to be built to meet current code. Commission member San Filippo offered his agreement, noting that the hardship cited seems to be purely self-created and could be avoided with compliance with the code and setback requirements. Commission member Vogel agreed with the statements offered by members and noted the lack of supporting letters or correspondence from neighbors. The impact on the neighborhood is therefore unknown and potentially detrimental. Carron added that the proposed addition wall is located on the north side of the property, so shading issues on adjacent lots need to be considered as well. Commission member Lawton commented that there are multiple opportunities to correct and revise the design at this point, so it is hard to find justification for hardship at this point. Land Use Review Commission Page 7 Minutes – April 13, 2023 San Filippo made a motion, seconded by Carron, to DENY ZBA230004 for the following reasons: a two-story building encroaching into the setback creates increased looming structure along the north property line; though other buildings in the neighborhood encroach into the side setbacks these buildings all tend to be one-story; insufficient evidence has been provided in showing how the proposal supports the standards in a way equally well or better than a proposal that complies with the standard; insufficient evidence has been provided in establishing a unique hardship to the property. Yeas: McCoy, San Filippo, Shuff, Vogel, Lawton, Carron Nays: Absent: Coffman THE MOTION CARRIED, THE ITEM WAS DENIED 3. APPEAL ZBA230006 Address: 5238 Apple Dr Owner/Petitioner: Patrick and Karen Murphy Zoning District: U-E Code Section: 3.5.2(F)(1) Project Description: This is a request to use chain link fencing with PDS slats as screening material for the outdoor storage of materials and inventory. Chain link fencing with or without slats cannot be used for screening purposes. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is located at the corner of Apple Drive and Apple Blossom Lane. The request is to build a new addition to the house that would include an attached garage. The proposed garage would be forward of the primary residence by 12 feet. In the current garage standards, garage doors are required to be recessed behind the primary wall of the residence façade by at least 4 feet. To note, this neighborhood was originally developed in the County and was later annexed into the city after most of the homes had been built. Most of the homes do not comply with the standard. Additionally, the diagonal orientation of the home on the corner lot makes it more d ifficult to determine what is considered the “front” property line. One way to comply with the standard is to “side load” the garage, so the garage door doesn’t face the property line. This situation is unique in that the residence on the lot angles to the corner apex, rather than parallel to a lot line. The proposed garage would maintain a significant distance away from the required setbacks. Within this subdivision, there are no sidewalks at this time. Elevations drawings presented show the current structure compared to what is being proposed. Commission member San Filippo asked if the proposed garage is intended to be a two - or three-door garage? Beals responded that, based on the supplied renderings, it appears that the proposed garage would be changed from the existing two-car space to a larger three-door garage to accommodate vehicles and perhaps and RV. Applicant Presentation: Applicant Patrick Murphy, 5238 Apple Dr., addressed the Commission and offered comment. Murphy stated they currently have a 1.5-car garage and lots of space, so with the addition would like to create a larger 3-car garage in order to take advantage of the space on the lot. Murphy directed discussion to the code issue of recessed garage. Murphy explained that he was not aware of this code requirement when initially working with his architect. The first plans included a garage that was 14 feet in front of the home, then was adjusted to 8 feet in front of the home. That still maintained 25+ feet from the setback. When walking down the street, the garage is off to the left and is partially obscured by vegetation. All houses are angled in different directions, and few houses face each other head-on. The proposed garage would not obscure any existing views and is not noticeable from the street level. Land Use Review Commission Page 8 Minutes – April 13, 2023 Murphy stated that his architect had advised that an 8-foot extension of the garage may be acceptable under code given the presence of a front porch; Murphy stated he never envisioned an 8-foot extension and is thus asking for the garage to extend 12 feet beyond the face of the home. At this size, Murphy is confident that the garage impact would be nominal and inconsequential to both the neighborhood and his lot. Public Comment: -NONE- Commission Discussion: Commission member Lawton noted that due to the unusual nature of the lot and the meeting of the required setbacks, the intent of the code to dissuade structures from being placed too close to the lot lines is intrinsically met. Lawton stated his opinion that the proposed garage would be acceptable due to the orientation of the lot and large setbacks previously noted in staff and applicant presentations. Commission member Carron stated the proposed garage would not detract from the neighborhood character. Due to the nature of this neighborhood being first developed in the County and later annexed to the city, the proposed addition would maintain the current ch aracter of the neighborhood, and its impact would be considered nominal and inconsequential. Commission member San Filippo agreed with the previous statements of Lawton and Carron, adding that he was cognizant of the fact that there are not persons in attendance today who are speaking in opposition of the request. San Filippo also appreciated the large setback distance that would be maintained between the garage and the lot line, despite the challenges posed by the “curse of the corner lot”. Chair Shuff agreed with the statements offered by other members and noted that this development is unique compared to others due to the fact that it was originally within the county and was later annexed to the city boundaries. Additionally, the applicant has demonstrated that a large setback would be maintained even with the proposed new garage. Therefore, Shuff has no problems supporting the application request. Prior to a motion being made, applicant Murphy stated to the Commission that he would be happy with a 14-foot extension of the garage past the primary residence wall; if not 14 feet, then 12 would b e fine as well. If neither of those measurements is acceptable, Murphy stated he would accept whatever the Commission decides today. Shuff clarified that because the variance request called out a 12 -foot extension, and only have plans describing that dimension, they are limited to approving or denying that dimension as requested/presented. San Filippo added that because the request and notice both referenced the 12-foot dimension, the Commission is limited to considering only that measurement. Murphy then stated that the notice he received via mail indicated an 8-foot dimension being requested, which is incorrect. After multiple attempts to reach the Zoning department, Murphy was able to speak to staff to indicate the correct request dimension is 12 feet. [This is reflected in the Staff Report included in the Agenda Packet]. Beals indicated that the application materials listed both an 8- and 12-feet dimensions; the 12-foot dimension was ultimately included in Staff Report and Agenda Packet. If the applicant would like to request a 14-foot extension for the garage, the current item could be tabled and re-noticed, or a decision could be made to approve/deny the request for a 12-foot extension for the garage. Shuff clarified to the commission that the motion to approve or deny would be considering the 12 -foot extension as requested. Carron made a motion, seconded by Vogel, to APPROVE ZBA230006 for the following reasons: the variance is not detrimental to the public good; the existing neighborhood does not comply with the garage standards; the house sits further back by more than double the required front setback. Therefore, the variance requests will not diverge from the standard but in a nominal, inconsequential way, when considered in the context of the neighborhood, and will continue to advance the purpose of the Land Use Code contained in Section 1.2.2 Yeas: McCoy, San Filippo, Shuff, Vogel, Lawton, Carron Nays: Absent: Coffman THE MOTION CARRIED, THE ITEM WAS APPROVED Land Use Review Commission Page 9 Minutes – April 13, 2023 4. APPEAL ZBA230007 Address: 6004 S College Ave Owner: Spas R Us, dba Aqua Spas Inc Petitioner: James Matt (“Jaws”) Davis, Owner Zoning District: C-G Code Section: 3.8.11(B) Project Description: This is a request to use chain link fencing with PDS slats as screening material for the outdoor storage of materials and inventory. Chain link fencing with or without slats cannot be used for screening purposes. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is located north of E Skyway Drive, along South College Ave. The property consists of two parcels, and both are under the ownership of the same owner. The request is for a new business to move into the site from their current location further south along S College Ave. The applicants are attempting to prepare the subject property for the move and new business activities. With that, they would like outdoor storage. Under code, outdoor storage is required to be screened. Our Land Use Code prohibits the use of chain-link fencing to be used for screening purposes, regardless of whether the chain-link has slats installed or not. Chain link fence is allowable for security purposes, but when it is used for screening purposes as well it is prohibited by code. The request is to use the currently fenced area, as a storage area for inventory and use the chain -link fence for screening purposes as well. Beals presented aerial views of the property, noting the chain link fence is not present in the photos and was installed more recently. Chain link fencing can be installed without a permit and is prohibited from having any barbed wired (unless being used to hold livestock) and must be maintained at a height of 6 feet or less. When items are to be stored outside on-premises, it triggers a requirement for a screening fence. Pictures of the property were presented by Beals, which show the current chain -link fence installed with slatting. Beals explained that some portions of S College Ave have a frontage road in place, though it is not maintained consistently along this area. In the future, there might be a change where an existing, unimproved public right of way (Aran St) is improved and existing vehicle access from S College Ave would be moved to Aran St. Across Aran St, there is a residential neighborhood with a direct view of the rear of the subject property and outdoor storage lot. Beals again noted that if the outdoor lot is to be used for storage purposes, code requires that it be screened from public view. Commission member San Filippo stated he was trying to understand the comment included in the Staff Report, which states “The use for outdoor storage is currently being reviewed for approval through a Minor Amendment process.” San Filippo asked if outdoor storage is permitted within this zone, but only after seeking specific approval to do so? Beals clarified that this property needs to seek approval for outdoor storage, as it has not previously been authorized for this property in the past. Thus, there is a Minor Amendment application that will be reviewed for the outdoor storage allowance. Part of that review is to verify that the site complies with the screening material that is required by code. The Minor Amendment does not grant approval to use different types of materials for screening purposes – that is what this Commission is deciding today. The Minor Amendment application will need to be adjusted accordingly based on the approval/denial of the current request before the Commission today. San Filippo asked if this application is premature; Beals answered no. The business owners could potentially move into the new location and submit a Minor Amendment application for outdoor storage afterwards, or they could attempt to get the approval beforehand, like they are currently doing. Land Use Review Commission Page 10 Minutes – April 13, 2023 Commission member McCoy asked Beals for clarification, as he understood that chain-link fencing is acceptable for security purposes, but not for screening if/when the fenced area is used for storage or even fleet vehicle parking. Beals stated that “storage” is considered to be any materials, supply materials, products, or vehicles that are to be stored longer than 24 hours. If they wanted to simply create a parking lot, then a security fence would be fine (assuming the lot conformed to parking lot design standards). The intent here is to use the area for product and inventory storage, along with the necessary trucks and lifts needed to move inventory. Shuff commented that the Minor Amendment application seems logical at this point, as it is almost a concurrent process to the variance request at this point. Applicant Presentation: Applicants James “Jaws” Davis, 6004 S College Ave, addressed the Commission and offered comment. Davis stated that Aqua Spas has been in business more than 17 years, in a location just a few buildings south of the subject property. The decision to move locations was made in part due to some issues with the city regarding loading/unloading practices. Davis explained the district used to be County and was then annexed into the city approximately 10 years ago. Thus, most of the buildings along this corridor had existent chain link fences. When Davis began engaging the development process, he became aware of the need for a permit for outdoor storage. Davis directed attention to aerial views of the property, noting that the building has always had storage behind it. Also, the lot sits far enough back from College Ave that most of the storage area is blocked or hard to see. Once the area was annexed, the existing location of 6024 S College was negatively impacted due to street changes that caused their loading docks to now be oriented sideways to the direction of semi travel. Therefore, when semis come to make delivery, that stretch of road is blocked. Police have made contact multiple times and have directed the semi drivers that they must place cones when blocking the street to allow them to back up to the loading docks. Davis stated that approximately 6-9 months ago, city staff told them that they did not have the authority to put out cones, despite the instructions from police. Due to these difficulties, an alternative property was identified that would fulfill the needs of the business. Aqua Spas has been in their current location for a long time and didn’t want to uproot and relocate to a different part of town – the area is colloquially known as “spa row” because of the multiple spa dealers. Davis stated the subject property was currently purchased by a neighboring property owner and then soon after was sold to Davis/Aqua Spas. Davis stated the chain link fence was already installed at the time of purchase. The building fits the needs of Aqua Spas due to the ample storage and aesthetically pleasing nature of the chain link fence. The current location at 6024 S College is not zoned for outdoor storage, though there is an area that is currently fenced with chain link being used for storage. Davis stated that for them to operate, they needed approval of the chain link in order gain approval of outdoor storage. Davis commented that this entire area needs cleaning up, and they are attempting to do their part by using nice chain link fence. Davis stated that in conversations with Zoning inspectors, inspectors have acknowledged that many neighboring properties are not compliant, but have been grandfathered in. When Davis pulled a permit for sign and electrical, it triggered the need for a permit/variance to allow for outdoor storage. Over $300,000 has been invested in the location to bring it into compliance with new zoning requirements. Davis explained Aqua Spas operates six locations, but the Fort Collins store is used as the primary inventory storage location and central delivery hub. The site has recently been improved with asphalt and ADA parking spaces. The new location now takes deliveries fully off of Skyway and fully onto the new property. Davis noted the frontage road in front of the property was very recently re-paved and is now in much better condition than what is visible in the presentation pictures. Public Comment: Romika Chandra, Office Manger for Aqua Spas, addressed the Commission and offered comment. Chandra stated that the new location compared to current is almost twice as big. Chandra asserted Land Use Review Commission Page 11 Minutes – April 13, 2023 that the chain link fence was in place prior to the purchase by Aqua Spas. Chandra stated that in previous discussion with Zoning staff, they were told that chain link fence was ok for security, and for privacy purposes they could use irrigation cloth wrapped around the fence. Chandra commented that for aesthetic reasons, this was not an acceptable solution. While many of the neighboring properties along S College Ave have existent chain link fencing, none have slatting installed like the fence in question. Chandra stated Aqua Spas has nearly $700,000 worth of equipment that needs to be securely stored on-site, and the area inside of the chain link fence would be the perfect place for storage. Nearly 27 security cameras have been installed on the property, encompassing the perimeter of the building as well as the chained storage area. There is also a natural/landscaped area directly behind the property. Chandra stated that many of the other buildings along the corridor have visible “junk” on their lots, and that Aqua Spas is trying to avoid that. The current chain link fence is compliant with the maximum height of 6 feet tall, which can be included in the commission’s decision-making. Commission member San Filippo asked for clarification regarding the “landscaped area”, asking if Chandra was referring to the area between the fence and the unpaved portion of Aran Dr. Chandra responded that she was referring to the entire area adjacent to Aran Dr, midway between E Saturn Dr and E Skyway Dr. San Filippo commented that he had visited the area recently, and it appeared to be a drainage ditch, which is significantly below where the fence ends on the east side of the property. Commission Discussion: Chair Shuff began discussion by asking for some points of clarification from staff. Shuff asked what triggered the need for a Minor Amendment – is it the change in use to outdoor storage on the property? Beals responded that Shuff’s understanding is correct, a Minor Amendment is triggered by outdoor storage on the site. The city was made aware of the need for outdoor storage on this property and has experienced problems with storage overflowing into the public right of way on the current site. When staff became aware that the business was moving, they wanted to be sure that the property was set up so the owners could use the site with outdoor storage. Shuff asked if the purchase of a property triggers a Minor Amendment? Beals explained the sign and electrical permits probably came in first; Zoning Dept. performs a review of all incoming permit applications. When staff determined that Aqua Spas was moving locations, they made the applicant aware that outdoor storage was not yet permitted for that property, which then triggered the need for a Minor Amendment. Commission member Carron asked to verify one of the images included on pg. 61 of the Agenda Packet, which seems to show a portion of solid fencing. Upon review, it was determined that the fence in the picture was chain link with slatting, and that shading in the photograph creates an optical illusion that makes it appear solid. Applicant Davis provided additional comment, explaining that the fence does go around the side and entire back of the property. Davis also stated that he purchased the business from the previous owner within the last five years, and many of the previous problems with outdoor storage were associated with the previous owner. Moving to 6004 S College Ave is a means to comply with local rules and regulations. Commission member Vogel asked what type of fencing is “supposed” to be installed for screening, if not chain link. Beals responded that options are a bit more open. It could be a fence or wall; usually materials need to tie into the primary structure or neighborhood context. An example would be a wood - panel fence; brick wall; brick panel fence with brick columns; corrugated metal could potentially be justified; similarly siding to that which is on the building currently could also be employed. Vogel commented that she was struggling to determine when the existing chain link fence was actually installed. Applicant Davis stated the fence was installed prior to their purchase of the building. Vogel stated that we have several different Google Earth images of the property, including one from 2021 that does not show the fence. Davis and Chandra indicated that they purchased the property in December of 2022. Land Use Review Commission Page 12 Minutes – April 13, 2023 Commission member McCoy asked Beals if there is a zone within Fort Collins where chain link f encing is acceptable? Beals responded no zones allow chain link fence for screening purposes. If screening is required anywhere within Fort Collins, chain link fencing is not allowed to be used. Shuff asked if the applicants could choose to screen within or outside of the existing chain link security fence? Beals responded yes – the current chain link fence is considered security fencing, so screening could be placed in a different location, or they could fully remove and replace the chain link with screening fence. Shuff asked if it matters from a public view perspective, does an existing neighboring building that blocks the view of a subject property count as screening, or does each property need to stand on its own regarding the screening requirement? Beals answered that each property does need to meet the requirement independently of what is occurring outside of their property, as that is always subject to change. San Filippo asked if landscaping materials can be used for screening? Beals responded that it is possible but is very hard. Planting vegetation now to provide screening is difficult, as plantings would need to be placed with such density as to create full opacity. However, we can’t wait multiple years for the landscaping to come to maturity to achieve compliant screening. San Filippo relayed his observations from a recent tour of the area and subject property, noting the patch-work nature of the frontage road and adjacent properties. San Filippo also noted that of the many chain link fences he observed in the area, none appeared to have slatting installed similar to the applicant’s fence. In San Filippo’s view, this area is considered the “working end” of Fort Collins and is due for some improvements. The fence is not readily visible when travelling at speed along S College Ave. As chain link fencing goes, San Filippo does not find this unattractive and would support this application. Shuff commented that it is always difficult when areas are annexed into the city and are required to comply with new and different regulations. Part of the issue is that those who apply for permits first are expected to bring properties up to code. This requirement is in our Land Use Code, and this commission is not allowed to look at financial costs or impacts when deciding. Shuff agreed that while the fence is not visible from S College Ave, this represents the transition that occurs with annexation. Carron asked if the north property line, adjacent to the detention pond, is currently fenced. Davis responded that area currently belongs to Ace’s – the subject property is screened along that property line back to the building. Chandra added explanation, noting that there is a fence gate along the west side of the fence, and the fence is present along the entirety of the east side of the property. Shuff asked Commission members to begin considering the justification rational as put forth by the applicant, in an attempt to move towards a motion. Commission member Lawton agreed with the previous comments, and greed that this is the opportunity for the property to be brought up to code and provide the kind of screening that is necessary or desired in this area. Lawton acknowledged the nature of the business as a combination of industrial and retail and understands the need for outdoor storage. However, the character of the storage screening provides a fit with the buildings in the area as well as the neighbors to the back. Most likely, Aran St will be improved to provide continued access to the neighborhood behind the subject property. At that point it will be even more important to have adequate screening around the storage area. Again, this is an opportunity to upgrade the property and come into compliance with code. While particular materials have not yet been determined, chain link fence is not the solution. San Filippo explained that while he previously stated that he had no problems with the applicati on, he certainly understands that code compliance generally starts one property at a time. Over the course of time, as the properties along this corridor come before this commission, screening requirements will have to be complied with unless there is significant hardship. As much as San Filippo is not troubled by the application at face value, it is understood that each application is taken individually and stands on its own. Consideration is also given to the precedent being set with each application. Therefore, San Filippo believes the applicant needs to comply with the screening requirements set forth by code. Land Use Review Commission Page 13 Minutes – April 13, 2023 Carron offered his agreement, commenting it can be hard when an area begins to come into compliance one property at a time, and can be somewhat haphazard in the application. Storage is present and is being reviewed for permits through the Minor Amendment. Because this is effectively a new use/new business, current screening requirements ought to be met. McCoy agreed with the previous comments. In terms of hardship, screening fences can be expensive and there doesn’t seem to be a lot of latitude for what is considered a fence. Therefore, McCoy would like to offer a period of time for wherein the applicant is able to come into compliance, especially considering that many of the surrounding properties are not in compliance and are indeed using chain link fence to screen storage areas. McCoy is unsure of the timeline that could be offered, but in the meantime the existing chain link fence looks better than most of the other existing chain link fencing in the area. Shuff asked staff and legal counsel if there is a precedent for applying time -based condition to a potential motion. Assistant Attorney Chris Haynes advised that he was unaware of any existing precedent that would provide guidance, but also is not aware of any reason why this type of condition could not be placed within a motion to approve. Beals attempted to recall any situations where time conditions were placed on approval; as an example, Beals cited sign code, which places a time limit on annexed properties to come into compliance. There is some thought of time limits in the code – in this case, a motion may allow outdoor storage to be “unscreened” for x-number of months, so that it is clear the chain-link fence is not considered screening. Details could then be worked into the Minor Amendment once a decision is made by this commission. Shuff discussed possible elements that could be included in a motion to improve, including a time element to allow the applicant due time to procure and install appropriate screening. There may be an element of hardship in the applicant being one of the first asked to comply with city regulations. However, we need to ensure that the code is being followed in this area. San Filippo asked if the security gate could remain as-is with slatted chain link, due to the need for opening and closing. Beals noted that gates are often clad with elements like wood or metal that would be considered screening. Some gates are not built to hold that material or amount of weight; there are gates available for purchase for that purpose. San Filippo shared his opinion that screening the gate may be overkill, as the gate will most likely be opening and closing quite frequently. Carron noted that the gate is a cantilever-style, and therefore subject to certain structural requirements. Carron asked I the gate is motorized; applicant Davis responded that it is not. Shuff advised the commission that a potential motion may also include language indicating which specific sections of fencing need to be screened. Consideration can b e given to the setback distance from S College Ave as well as visibility from the road for each distinct portion of the fence. San Filippo asked Shuff if he were proposing a schedule of sorts; Shuff responded that schedule had been mentioned, as well as the option to not screen the gate, etc. McCoy spoke to due diligence of the purchase process, noting how easy it would have been to discover that the fence was not compliant with current requirements prior to purchase. Knowing that his area would have a lot of buyers asking about storage and fencing requirements, this seems to be an easily discoverable requirement for those wanting to utilize outside storage within this zone. Beals confirmed that the Zoning Department is receiving an increasing number of questions regarding outside storage and fencing/screening requirements. Beals also spoke to Chair Shuff’s comment regarding the possibility of making a motion that places conditions on specific portions of the fence. Carron suggested that the code requirement as written pertains to “fences” rather than “gates”, so the existing gate with covering could potentially be maintained. That may strike more of a middle -ground balance when crafting conditions for approval. Commission member Vogel agreed with the statements made by Carron, supporting the desire to find an appropriate middle-ground for approval with conditions. Land Use Review Commission Page 14 Minutes – April 13, 2023 Lawton asked, from a procedural perspective, is it better to approve but only for a section or to deny with caveats? What is the most appropriate manner to craft a decision in this scenario? Beals responded to Lawton by suggesting that if the intent is to allow some sections of the fence to remain, that the Commission put forth an approval motion with conditions, specifically relating to individual sections. Shuff clarified that a motion could be made that allowed some of existing slatted chain link fence to remain while requiring screening in other portions. Beals confirmed, noting that because the request was for the entire fence to be mai ntained as “screening”, to allow a portion to do so would necessitate a motion of approval with conditions. Assistant Attorney Chris Hayes urged the commission to be as specific as possible in terms of phrasing, perhaps using terms such as “Approved in part”. Shuff voiced his comfort with drafting a conditional approval, suggesting that the North and East portions of fence be required to comply with the screening requirement, while maintaining the chain link slatted fence on the South. The west portion of fixed fencing needs to be screened, but the gate may be maintained as-is. McCoy asked how close the Minor Amendment is to approval; Beals indicated that the process is close to finishing. This variance decision is one of the final pieces that need a determination prior to approval of the Minor Amendment. Shuff asked if six months was appropriate as far as a timeframe for compliance; San Filippo and others offered their agreement. San Filippo made a motion, seconded by Vogel, to APPROVE with CONDITIONS ZBA230007 for the following reasons: subject to the condition that within six months of the approval of the Minor Amendment, that screening compliant with City code be installed along the North and East sides of the property, as well as the portion of the West side that faces College Ave, excluding the gated portion. The South portion of the fencing is also exc luded from the need for screening. Additionally, reasoning deduced by the Commission during their discussion regarding this application before considering the motion. Justification for approval is also based upon hardship described and evidenced by the applicant. Yeas: McCoy, San Filippo, Shuff, Vogel, Lawton, Carron Nays: Absent: Coffman THE MOTION CARRIED, THE ITEM WAS APPROVED with CONDITIONS • ADJOURNMENT – meeting adjourned at 10:47am Meeting Minutes were approved at the May 11, 2023 LURC Regular Meeting. All members voted yes with the exception of Coffman who abstained and Vogel who was absent.