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HomeMy WebLinkAboutZoning Board Of Appeals - Minutes - 08/09/2001Council Liaison: Karen Weitkunat Staff Liaison: Peter Barnes (221-6760) 1 Chairperson: William Stockover Phone: 482-4895 (II) A regular meeting of the Zoning Board of Appeals was held on Thursday, August 9, 2001, in the Council Chambers of the Fort Collins Municipal Building at 300 LaPorte Avenue, Fort Collins. 0T.717Ti�ir.�:i. David Ayraud Thad Pawlikowski Steve Remington Diane Shannon William Stockover BOARD MEMBERS ABSENT: Martin Breth Andy Miscio STAFF MEMBERS PRESENT: Peter Barnes, Zoning Administrator Paul Eckman, Deputy City Attorney Gary Lopez, Zoning Inspector Sandra Kendrick, Staff Support to the Board 1. ROLL CALL The meeting was called to order by Chairperson Stockover and roll call was taken. 2. APPROVAL OF MINUTES: A motion was made by Board Member Shannon to approve the minutes from the June 28, 2001 meeting. Board Member Ayraud seconded the motion. The motion passed unanimously. A motion was made by Board Member Shannon to approve the minutes ZBA August 9, 2001 Page 2 from the July 12, 2001 meeting. Board Member Remington seconded the motion. The motion passed with Board Member Ayraud abstaining. 3. APPEAL NO. 2351--Denied Address: 3439 Warren Farm Drive Petitioner: KB Homes Zone: LMN Section: 3.5.2(D) Back rg ound: The variance would reduce the required north side yard setback from 5 feet to 4.3 feet. The foundation was mistakenly poured several inches to the north from its intended location thus creating a setback of only 4.3 feet. The setback on the south side is 5.7 feet. Had the foundation been placed correctly the home would have 5-foot setbacks on both the north and south sides. There is a separation distance of 9.8 feet between 3439 Warren Farm Dr. and 3433 Warren Farm Dr. Petitioner's Statement of Hardship: The homeowner has already moved into the house. A minor amendment cannot be applied for in this situation to shift the property lines, as that would create both homes being out of building code compliance (10 feet separation between buildings). Staff Comments: On July 1, 2001, the City began requiring surveys of houses prior to the issuance of a certificate of occupancy in order to ensure that buildings are constructed in compliance with the required setbacks. A certificate of occupancy was issued for this particular house in May prior to the date that the City required surveys. The builder found out after the fact that the building did not comply with the required 5-foot setback and is seeking a variance at this time in order to avoid any problems for the current owner. This is a voluntary appeal in that the City is not requiring a variance since the certificate of occupancy has already been issued and the error came to the City's attention after the July 1, 2001 date. Peter Barnes explained the Improvement Location Certificate (ILC) to the Board which was instituted because of the growing number of homes that are not complying with the setback requirements and are contrary to the site plan that was submitted with the building permit application. KB Homes submitted this ILC after July 1 which was two months after the Certificate of Occupancy was issued. Gary Lopez presented slides relevant to this appeal. ZBA August 9, 2001 Page 3 Shannon asked if the required setbacks are because of fire regulations. Barnes stated that a 5-yard setback is more than the Building Code requires for separation between buildings. Single family homes can be as close as six feet and still be allowed to have window and door openings along the side walls. These two homes would be 9.8 feet apart at the closest point, which would exceed the six feet required by the Building Code and Fire Code for separation. The zoning setback of 5 feet is more of an aesthetic requirement and to insure a little more distance for adequate fight and ventilation to circulate through the buildings and properties. The action the City could take would be to revoke the Certificate of Occupancy, have the occupants move out and KB Homes would be required to move the house. Applicant Participation: Charles Barrister, Denver, CO, is a member of the firm that is handling the surveying and engineering for this project. The reason that KB Homes brought this to the attention of the Board is that they felt it was in the best interest to protect the buyer of the property and also the general public. This problem was not discovered until after the house was under construction and about 80 to 90% complete. Remington asked if the house was designed to fill the whole width that is available since the south side setback is 5.7 feet and the north side is 4.3 feet. The Applicant said the house was designed to meet the required 5-foot side yard setback to be in compliance with the current zoning regulations. KB Homes has been very diligent to make sure all the checks and balances for this project are followed. His firm stakes the house for construction and performs a check on the property before the concrete is poured for the foundation to make sure that it is in the right spot. This was performed on this house and after they had been at the property, but prior to the concrete being poured for the foundation, the forms were moved. They are unsure why this was done, but the resulting problem with the house is that it was shifted .7 feet to the north. Shannon asked why this was not presented when the problem was discovered at the time the house was about 80% completed. The Applicant stated that KB Homes was alerted to the problem at that time and they contacted the City to find out about the appeal process. Ayraud wondered if the homeowner was aware of the setback problem at the time of purchase. The Applicant said the homeowner did not know at that time. The problem was discovered when the ILC was performed as the final check on this process. Board Discussion Discussion was held concerning what the hardship would be in this case. Shannon asked what the consequences would be if appeal were turned down. Barnes stated that there would be none. The City could revoke a Certificate of Occupancy and require that the house be modified to correct the problem, but because the home is already purchased and a family is living there, the City probably would not impose that type of hardship on them - If the home had not received a CO and an ILC had revealed the problem the situation ZBA August 9, 2001 Page 4 would be different. The Board would deny it and the City would not issue a CO until the problem was resolved. Remington asked Attorney Eckman his opinion on this. Eckman said the Code does not deal with Code or process changes as creating a hardship. It deals with whether there is something unique to the property itself. The Board needs to find some exceptional physical condition or other extraordinary, exceptional conditions unique to the property. He referred to another case that came before the City of Fort Collins in 1948. A building inspector at the time did not enforce a particular provision of the Code and then began to enforce it later. The question was can it be enforced in the future since it was not enforced it in the past. The court said yes. Just because the section had not been enforced prior to a certain event, it could be enforced later. He believed that would be permissible in this case if the staff elected not to enforce the Code regarding this house. Remington asked the Applicant if there was any feature that is unique to this property that would qualify for a variance as a hardship. The Applicant stated that the hardship created is for the new homeowners of the property. Ayraud asked if the lots were set up so there would be 5 feet on each side and not any spare room. The Applicant stated it was set up with 5 feet on each side. Barnes explained that one of the reasons the City instituted requiring surveys is because of projects that are being developed under the Land Use Code and this was one of the first ones. There are smaller and smaller lots and less margin for error. Builders are being held responsible and are being encouraged to get the surveys done when the foundation is poured. At that time it can be determined if there is a problem. It is much easier to tear out a foundation and start over than it is to tear down a house and move it over. Ayraud asked about history of hardship with narrow lots like older subdivisions in old town. Barnes stated that newer developments are reverting back to narrower lots. The difference is older sections of town is that the lots are deeper while the new developments have fairly shallow lots. This particular lot is 70 feet in depth while the ones in Old Town are up to 190 feet in depth. The older ones were approved before the City had a zoning code. Shannon asked if this variance could be approved under the exceptional situation which would be the hardship on the homeowner with the absolute stipulation that this would not happen again because the rules have changed. Eckman stated he would like to guide the Board against a stipulation that the Board never grant one of these again because it will bind the Board in the future. Stockover asked if they could base their findings on the fact that the house was built before the new rule. Barnes stated that there are probably dozens of houses that were constructed before July 1 that have not been sold and do not have a Certificate of Occupancy. When July 1 was selected, it was known that there were maybe a thousand homes already under construction that had permits issued before July 1, but before those ZBA August 9, 2001 Page 5 were occupied they wanted to make sure there were resolutions. There have been numerous Improvement Location Certificates come in that show noncompliance. Through various methods those builders have been able to correct the situation, either by purchasing the property next door and doing a lot line adjustment or at the foundation stage, the foundation has been ripped up and restarted. This should be minimized in the future, but there are homes which are not in compliance and do not have a CO yet, so he cautioned the Board not to use the fact that it was built before July 1. Remington asked if this could be considered an exceptional situation. Eckman said if the Board decides this is an extraordinary and exceptional situation unique to the property, it certainly fits the Code. Eckman asked the Applicant since staff is not going to require anything to be corrected with regard to this problem, how will this voluntary appeal affect the current owner. The Applicant replied that if the current owner decided to sell the house in the future, this problem would arise and create a hardship upon the owner of the property that they were not aware of when the property was purchased. Nor was the builder aware of the problem because they were attempting to follow the correct procedure to make sure the location of the house was placed correctly at the construction stage. The title company handling the transfer of the property would discover the problem. Eckman asked if it would reduce the value of the property. The applicant said the property would not be able to be sold as is. The situation would have to be resolved with the City which is why Kaufman and Broad is bringing this to the attention of Fort Collins at this time. Ayraud asked if the Board does not approve this, can they come back in the future on the exact same issue. Eckman stated a person can apply for the same variance over and over again, but there is a time spacing between requests. Remington asked if the people to the north received notice of this appeal. The Applicant said the property is under contract, but KB Homes would have received the notice. Stockover asked who instigated the new rule requiring surveys before the certificate of occupancy is issued. Barnes said staff made the rule. The Code requires that before certificate of occupancy is issued, the City has basically certified that the property complies with all applicable regulations. The City could not do that without requiring some sort of documentation. The City also has energy calculations, insulation certificates and others where people certify that the Code was met. Stockover understands the reason KB Homes is asking for the variance, but cannot see a way to grant it. Ayraud stated that until there is an actual hardship, he doesn't find any at this time. Remington agreed. Stockover said this cannot be solved without bending the rules for every single appeal from here on out. Ayraud made a motion to deny Appeal 2351 because there is not a current hardship facing the homeowners in order to grant the variance. Stockover seconded the motion. ZBA August 9, 2001 Page 6 Ayraud stated for the record that if the owner of the home had trouble selling the property, then he would consider that to be a hardship not of their own making and would think that that would be grounds for a hardship variance. Vote: Yeas: Ayraud, Pawlikowski, Stockover, Shannon, Remington Nays: None 4. APPEAL NO. 2352--Approved Address: 1324 W Mountain Ave Petitioner: Wendy Williams Zone: NCL Section: 4.6(E)(4) Back rg ound: The variance would reduce the required street side setback along Lyons Street from 15 feet to 12.75 feet in order to allow a second story addition to the existing one story home. The addition will be directly on top of the existing west wall, which is already at a 12.75- foot setback. Petitioner's Statement of Hardship: The existing home is already at a nonconforming setback, and the addition will not increase the degree of nonconfornuty. Building up is the most feasible way to add additional floor space and to stay within the historical character. The existing home is small, only 888 square feet, but the building footprint will not change, except for a connection to the detached garage. A letter from Kathleen Mannix, 1308 W. Mountain Ave. was read in support of this appeal. Staff Comments: Gary Lopez. presented slides relevant to the appeal. The house to the east of this property does not meet setback, estimating that the setback is 7 to 8 feet from the property line assuming the property lines match up. Barnes referred to the written staff comments the Board received concerning older developed subdivisions and existing nonconformities. This appeal is a good example of an area that was platted long before the City had a zoning code The house was constructed before there was a zoning code and it is already in nonconformance with setback ZBA August 9, 2001 Page 7 regulations on a corner property. At the March 15, 2001 ZBA meeting the Board heard a similar request for a street side setback variance and the Board approved that variance on the equal to or better than standard. At the first appeal today everything was centered on hardship. The Board has two standards for which they can grant variances, one is based on some hardship due to narrowness, shallowness, physical conditions, some extraordinary or exceptional situations unique to that property or the Board can grant relief if they find that the proposal is equal to or better than the standard. In this case the standard is a 15- foot setback from a property line along a side street. In the March appeal the Board granted the variance based primarily on an equal to or better than standard finding that the purpose of the setback would be to ensure that an adjoining landowner would not have a building mass of any height too close to the property line. On corner lots, the Board determined that the street on the comer side setback would ensure adequate separation from nearby properties and that the street acts as a buffer. However, the Board also determined that such an equal to or better than standard was appropriate only when linked to some other existing factor such as existing landscaping or an existing nonconforming setback situation. The Board did not want to set a precedent and were concerned about new construction ignoring the 15-foot setback asking for a variance because the street acts as a buffer. They felt that the equal to or better than standard was met because the purpose of the Code was to ensure separation but only when there was some other existing nonconformity. This home is nonconforming and has an existing setback of 12 feet 9 inches. Applicant Participation: Wendy Williams, 1324 W. Mountain Ave. addressed the Board stating that they had considered adding to the back of the house rather than adding a second story, but since the house was already long and narrow, they did not want to have the freight train look and wanted to maintain the back yard. Remington asked if this has been presented to the Historical Preservation group. The Applicant replied she has scheduled a meeting, but needed the variance first. Board Discussion: Shannon stated that as long as everything else is in compliance, the problem of the nonconforming setbacks as a reason to approve this as well as the Applicant will be meeting with Historic Preservation, it complies with the equal to or better than standard. Stockover agreed that there were not any major issues with this appeal. Remington said if the Board does approve it, there should be a condition that it meets with historical guidelines as well. Ayraud asked if this property is a comer lot. Barnes replied that it is on the corner of Lyons and Mountain. Remington asked if this would be approved on the equal to or better than standard or on a hardship. Ayraud said the one that was approved in March was an equal to or better than standard. Eckman pointed out that the specific ZBA August 9, 2001 Page 8 language to the equal to or better than standard is that the Board needs to find that the proposal as submitted will promote the general purpose of the standard for which the variance is requested equally well or better than a proposal which complies with the standard for which the variance is requested. A finding needs to be made as to why this is so. Remington stated that the purpose of the setback is to provide space between properties. The unique location on the corner accomplishes that, however by allowing them to follow the existing outline, they can meet the needs of the historical character of the house and the historical committee. If they were required to build at 15 feet there would have to be a design change, which is out of character with the older style house. Remington made a motion that Appeal 2352 be approved on an equal to or better than standard for the facts that have been outlined in the discussion and contingent on gaining approval from the Historical Commission as well. Barnes asked if they were linking the equal to or better than also to the fact that it is a nonconforming setback. Remington stated that was correct. Barnes said that is key. If it is granted because it was equal to or better than the purpose of the standards requiring setbacks since it is on a comer lot and there is separation and if it is linked to the nonconformity, that prevents a new developer building a new subdivision to ask for blanket variances on every comer lot. Remington said it would be linked to nonconformity and also to the historical character of the house and the neighborhood. Shannon seconded the motion. Vote: Ayes: Ayraud, Pawlikowski, Stockover, Shannon, Remington Nays: None 5. APPEAL NO. 2353--Approved Address: 1501 Peterson St Petitioner: Kim Normandin Zone: NCL Section: 4.6(E)(4) Background: The variance would reduce the street side setback along the Lake Street property line from 15 feet to 11 feet in order to allow the existing detached garage to be demolished and replaced with a new attached two -car garage with a greenhouse attached to the south side of the new garage. Petitioner's Statement of Hardship: The greenhouse needs southern exposure and this location is the most feasible due to existing landscape and water features to the west. Placing the greenhouse behind the garage causes the garage to be moved further north than the existing garage. ZBA August 9, 2001 Page 9 Staff Comments: Gary Lopez presented slides relevant to the appeal. Barnes pointed out that there is no sidewalk along Lake Street. Applicant Participation: Kim Normandin, 300 Jackson Ave, is working with the owners on the addition design of the garage and greenhouse. The applicant addressed the Board explaining the concept of the design is to provide a greenhouse that is directly accessible from the house, therefore the connection between the house and the garage is a natural spot to access both the greenhouse and the garage. The existing garage is 20' x 20' which needs to be expanded in length to 24 feet to hold the owner's truck. The south setback is 5 feet, the greenhouse would be 10 feet and the garage would be 24 feet which leaves 11 feet to the setback. This corner lot is 50 feet wide and with the setback requirements of 15 feet on street side and 5 feet on the side yard setback there is a buildable area of 30 feet. There is a formal garden to the west side of the proposed structure with large trees and a walkway with a water feature. To move the greenhouse to the west would impact this layout. A large American Elm tree is located on the street and there are three or four more trees located to the west along the street side. Shannon asked about the water feature. The Applicant stated it was a standing fountain in the center of the rear of the garden with a pathway that circles around to the fountain. Stockover questioned Barnes about what the Code states in regard to the number of feet between the back of garage and the street so people can see as they are backing out. Barnes replied that there are two Code requirements that deal with setbacks along a street in this particular zone. One is that there has to be 15 feet from the property line along the street, in this case, Lake Street, and the Code requires that the garage door has to be set back at least 20 feet behind the back of the public sidewalk. That 20 feet is required in order to ensure enough space to accommodate a vehicle in the driveway without hanging over or encroaching upon the sidewalk. If a public sidewalk is for public access and if the vehicle encroaches over sidewalks, then the sidewalks become nonfunctional for one of the purposes for which they are intended. There currently is no sidewalk there and Barnes asked the Engineering Department to look at the property to determine if a sidewalk would be put in because the City has sidewalk improvement programs. They were also asked to look at the issue of the large trees that are along Lake Street. Knowing where a sidewalk would be put in would help in determining if there would be a problem in the future to any sort of driveway length. The front of the lot along Peterson Street has a detached sidewalk and that is the typical configuration found in the older part of town. There is the curb of the street, a median area, a detached sidewalk then about four feet from the back of the sidewalk to the property line. That would be ideally the same way the sidewalk would be installed on Lake Street. If it were installed to meet the same ZBA August 9, 2001 Page 10 standard that the rest of the old town neighborhoods comply with, that would mean the garage doors of the new garage would only be 15 feet behind the sidewalk which could violate the intent of the Code. Engineering did look at the property and reported that there is a potential for a detached sidewalk at this location, although there are no plans at this time. A large portion of the right of way may be needed to curve the walk around the three large trees along the western area of the lot. Where the existing curb cut and driveway is, there the sidewalk would be at its normal location which would put it 4 feet from the property line. Engineering also said that since the property is located across the street from the old Fort Collins High School, (now CSU), a sidewalk is justified. In the event it is put in, it would be put in where normal sidewalks are which would create a fixture problem. The Applicant asked if the 4-foot distance from the back of the sidewalk to the property line could be altered by 4 feet so that 8 feet from the curb could allow for the extra 4 feet. Barnes explained the problem to the Engineering Department and they said they would install the sidewalk in the normal location. If that can be negotiated, Barnes did not know. It would need to be discussed with the Engineering Department. There will need to be some meandering around the trees and that part of the sidewalk would be closer to the property line than normal. Ayraud asked the owner if the variance were granted and a sidewalk built, would they have a problem with parking only in the garage and not in the driveway. The owner, Joel Bedford, addressed the Board and said that would not be a problem Barnes responded that he is concerned how that condition could be imposed on future owners. Ayraud asked if the Board could impose a condition on the City as a part of a variance request. Eckman said yes, since the City is a party of the variance request. Ayraud wondered if the Board is a part of the City, or independent, and could we put a condition on themselves. Eckman said it has never been done before, but since the City is here, staff is here, and the Board is part of the City, he could not tell them that they could not. Barnes said if the Board was thinking about putting a condition on the location of the sidewalk, Engineering staff was not there so the appeal would have to be tabled until they could be present. The Applicant pointed out that no homes face Lake Street. Between Peterson and Mathews there are two properties and they both face Mathews or Peterson, not Lake Street. In Support of the Appeal Joel Bedford, 1501 Peterson Street, addressed the Board about the issue of other sidewalks in the neighborhood. There is a sidewalk across the street along Lake Street around the old Fort Collins High School if one wants to take a stroll. Remington and Whedbee has street side sidewalks, so they are not all offset sidewalks. ZBA August 9, 2001 Page 11 Board Discussion: Stockover is in favor granting this appeal. Shannon agreed although there may be a problem in the future. Remington thought that they could be creating a potential problem in the future. There should be some resolution from the Engineering Department concerning the sidewalks before he would grant this appeal. Ayraud said he would also like the issue with the sidewalk and the Engineering Department resolved. After discussion, it was decided that if a sidewalk was built later, and vehicles encroached onto it, the City would be issuing tickets, so the issue of parking in the driveway would be self - enforcing. Ayraud made a motion that Appeal 2353 be approved based on the hardship that this is a comer lot with existing landscaping so the building cannot be expanded north onto the property without interfering with the trees. Also, the petitioners have acknowledged they understand the issue about the sidewalk being built and dealing with the City Code at that point regarding parking in the driveway. Shannon seconded the motion. Vote: Yeas: Ayraud, Pawlikowski, Stockover, Shannon Nays: Remington 6. APPEAL NO. 2354--Approved Address: 817 Maple St Petitioner: Monica Lambert & Andy Rex Zone: NCM Section: 4.7(E)(4) Background: The variance would reduce the required side yard setback along the east lot line from 5 feet to 2 feet in order to allow a second floor addition to the existing home. The second floor will be the same size as the main floor and be constructed on top of the existing walls. The existing east wall of the home is already at a 2-foot setback from the east lot line. Petitioner's Statement of Hardship: The house is small, 745 square feet, and the lot is narrow, only 35 feet wide. The height of the new wall will only be 3 feet higher than the existing wall height. Due to the ZBA August 9, 2001 Page 12 narrowness of the lot, the existence of the detached garage and mature trees, going up with the addition is more feasible than going out with a one story addition. Four letters from neighbors were submitted and read in support of the appeal. Staff Comments: Gary Lopez presented slides relevant to this appeal. There is an alley both on the south side and on the west side of this property. Ayraud asked if the appeal has anything to do with the new wall being three feet higher or if it is just concerning the setback. Barnes said there is a relationship with the required setback and the height of the wall when the wall height exceeds 18 feet, but since the new wall does not exceed 18 feet, it is just concerning the setback. Applicant Participation: Monica Lambert, 817 Maple Street, added that the houses in the surrounding area were built between 1910 and 1915. This house was built in 1909 with a 75% change in 1958. The home now looks like it was built in the 1940s and they would like to have it look more in character with the neighborhood. Historic Preservation has been contacted and they have looked at the proposed changes. Board Discussion: Shannon made a motion to approve Appeal 2354 based on narrowness of lot, existing noncompliance, existing landscaping and the fact that it is going to be in the original footprint. Ayraud seconded the motion. Vote: Yeas: Ayraud, Pawlikowski, Stockover, Shannon, Remington. Nays: None. Other Business: Stockover requested a "cheat sheet", a fill in the blanks guide to assist in making motions that contains all the information necessary to make motions. Eckman agreed to prepare one. Meeting adjourned at 10:15 a.m. William Stockover, Chairperson Peter Barnes, Zoning Administrator