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HomeMy WebLinkAboutZoning Board Of Appeals - Minutes - 06/28/2001A regular meeting of the Zoning Board of Appeals was held on Thursday June 28, 2001, in the Council Chambers of the Fort Collins Municipal Building at 300 LaPorte Avenue, Fort Collins. :�•�IX1 I:_1_ 's David Ayraud Martin Breth Andy Miscio Thad Pawlikowski Steve Remington Diane Shannon William Stockover C • 'L 1 1 u1C C_ ► None 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. APPEAL NO. 2342 -- Approved Address: 2000 Harmony Dr Petitioner: Ed Davis Zone: UE Section: 4.1(D)(2)(d) ZBA June 28, 2001 Page 2 Background: The variance would reduce the required side yard setback along the south lot line from 5 feet to 4 feet in order to allow the construction of a two-story addition to the rear of the existing house. The south wall of the addition will line up with the existing south wall of the home. Petitioner's Statement ofHardshin: The original builder did not build the home parallel to the side lot line. Therefore, the front corner of the home is 6.75' from the lot line, while the existing back corner is only 5 feet from the lot line. Any addition along the existing south wall will continue to get closer to the lot line. While the lot is not irregularly shaped, the fact that the home was constructed canted on the lot does create a harship. Staff Comments: This is an older subdivision that was constructed in compliance with the RL setback standards contained in the previous zoning code. Therefore, a 5' side yard setback is required. If the original builder had built the home parallel to the lot line, then a variance would not be required for this addition. Barnes explained that this property is in the UE, Urban Estate, Zoning District that requires a 20- foot side yard setback. A code change was made that states if the subdivision that the property is located in was developed under the RL standard, those RL setback requirements would apply. In this case, a side yard setback in the RL zone is 5 feet, which explains why this request is to reduce the setback from 5 feet to 4 feet. Slides were presented relevant to this appeal. The request is to construct an addition on the back of the house lining it up with the existing wall of the house. Because the house is canted on the lot, the new rear comer of the house will be even closer to the side lot line than the existing rear corner and thus the need for the variance. Applicant Participation: Ed Davis, 2000 Harmony Dr, addressed the Board. If the variance is not granted, he will have to offset the house a foot to the north to meet the 5-foot requirement. Shannon asked the applicant why it can not be offset. The applicant said it would inconvenience the interior design. Rather than a straight wall proceeding to the east they would need to offset one foot and then go east 12 feet. Shannon asked why the addition could not be done on the north side. The applicant stated that the addition is to accommodate a kitchen and dining area that is too small. ZBA June 28, 2001 Page 3 Board Discussion: Breth said he is having a hard time finding a hardship even though the house is canted on the lot because there is still plenty of lot to work with. There doesn't seem to be any topography or landscaping that is in the way and he would have a hard time supporting the variance. Ayraud asked Barnes to explain making the setbacks 5 feet. Barnes said it was unreasonable to require 20-foot setbacks for these subdivisions that were already developed in compliance with different standards. Ayraud asked if they thought 5 feet would be adequate to separate the homes. Barnes stated it would because a lot of them already had those minimum setbacks. He said the Board needs to treat this as if the requirement was 5 feet and a RL subdivision. Miscio asked the Applicant how far the neighbor is from the property line. The Applicant said the distance is 30 feet which makes the distance from his actual structure to the Applicant's proposed addition would be 34 feet. The Applicant responded to Breth's statement. Even though the lots are large, there is no place else to move on the lot and add on to the kitchen and dining room. Ayraud asked if this had been discussed with the neighbor and the Applicant stated that it was fine with the neighbor. Remington made a motion that Appeal 2342 be approved for the hardship stated. Miscio seconded the motion. Vote: Yeas: Pawlikowski, Shannon, Stockover, Miscio, Remington. Nays: Breth, Ayraud 3. APPEAL NO.2343 — Approved with conditions Address: Lots 18-24, 41-47 Rigden Farms Petitioner: Robert Hand for owners Zone: LMN Section: 3.5.2(D)(3) & 3.8.3(1) Background: The variance would reduce the required rear yard setback for detached garages/carriage units/lofts on Lots 18-24 and 41-47 of Rigden Farm 1st from 15 feet to 5 feet and would allow home occupations to be conducted in these detached buildings, rather than in the house located on the front of the lots. ZBA June 28, 2001 Page 4 Petitioner's Statement of Hardship: See attached letter. Staff Comments: A staff report has been provided to Board members. In addition, Barnes stated that there are two aspects to this request, one is to reduce the rear yard setback from 15 feet to 5 feet. In this particular zone, LMN, the code does require a 15-foot setback from the rear property line. This proposal is to allow detached garages or carriage house units or loft areas, so there could be a combination of three different types of units. One lot may have a detached garage, another lot could have a carriage house unit which would be another dwelling and another could have a detached garage with a loft area above which may be accessory living space for the occupant of the home such as a recreation room or a personal office. It could also be a home occupation activity so the other request being asked of the Board is for a variance to allow home occupation activities in detached buildings. The home occupation ordinance requires that all aspects of the home business be conducted within the dwelling, not in detached buildings. Variances have been allowed in older neighborhoods to convert an older detached garage for home occupation purposes when there is not an attached garage, but this request is to allow new garages to be used to accommodate home occupations. Breth asked if the carriage units could be rented out. Barnes answered that the code does not stipulate who occupies that dwelling unit, only the number of unrelated people that can occupy the unit. It does not matter if it is owner occupied or a rental. Miscio asked if the units could have separate meters and kitchens. Barnes stated it could not be a duplex. It would be a detached building which means by definition there could be two detached single family dwellings on one lot. The utility department does require separate taps for the detached buildings if it is going to be a dwelling unit. Barnes said there can be two dwelling units on a lot anywhere in town in any zone as long as there is enough lot area to accommodate two dwelling units. In the LMN there are density requirements and there are still an extra 41 units that can be constructed in addition to the main units that are approved on each lot. When the maximum density has been reached at Rigden Farm, a permit cannot be issued for someone to convert a detached garage to a dwelling unit. Shannon asked if once the density is reached if a person wants to convert a garage to dwelling unit because his neighbor has one, will they have to come to the Board for a variance. Baines said their request of the ZBA would be for a variance to increase the density. It would have to be determined whether they had a hardship or it was an equal to or better than purpose of the standard. Troy Jones, Current Planning Department project planner on most of the Rigden Farm projects, explained that the dwelling units in these detached buildings are not part of the variance request. The rear yard setback and putting an office in the detached buildings is the variance request. There are no plans to convert the garage, only a dwelling unit or office above the garage. ZBA June 28, 2001 Page 5 Barnes pointed out that the description of the variance is to reduce the rear yard setback for detached garages/detached carriage units/detached lofts. The variance is to have a detached building which can have multiple uses, so the variance is for a setback request and not uses. Remington asked if they can have all those uses as long as they built the building 15 feet from the rear lot line and it would not have to be reviewed. Barnes answered a home occupation could not be in the detached building without a variance, but all other uses would be allowed. Jones said there have been quite a few modification requests to the Land Use Code. If the project is under review, the Planning and Zoning Board decides whether the rules in the Land Use Code can be varied which is called a modification. Once there is an approval by the Planning & Zoning Board, it becomes the role of the Zoning Board of Appeals to approve any deviation from the Land Use Code. Jones presented slides relevant to the appeal. Jones explained the equal to or better than clause in the Land Use Code. Because the Land Use Code was so prescriptive, there are situations that come up that had not been considered. The modification procedure was introduced as an option that an applicant can do for projects under review by the P&Z Board to allow deviation from the Land Use Code. If this case would have come to the Planning and Zoning Board during review, staff would support the request. Jones presented the overall development plan. The zoning in the area where the request is made has been approved at between 4.4 and 5.8 dwelling unit per acre which translates to 150 - 200 units. They now have the ability to add 41 additional units. The first request is for a 5-foot setback and the applicant has proposed that if there were a 15- foot setback there would be two backyard areas, one between the primary house and the detached building and another behind the detached building. These are not very cohesive and staff agrees if the detached building was moved back, the area between the two buildings would be maximized and be more usable. The covenants within Rigden Farm do not allow for privacy fences between lots, so privacy is not an issue. Ayraud asked since the covenants already prohibit privacy fences, would a rear yard setback of 15 feet provide the privacy that is already taken away by the covenants. Jones stated it is the intent of the developer to provide a theme that is not imposing that lack of privacy is a bad thing, but a good thing. They are trying to create an open feeling. Remington asked if the home occupation issue in the detached garage has the same requirements as in an attached garage. Barnes said the home occupation license includes numerous sections of regulations that must be complied with. The only code section of the home occupation ordinance that is being requested to be varied at this time is the ability to use a detached building for home occupation activity. Shannon asked if the 5-foot setback is for an utility easement. Jones stated the rear 5 feet is dedicated as a utility easement. ZBA June 28, 2001 Page 6 Applicant Participation: Robert Hand, 1901 Avery Ct, addressed the Board. Rigden Farm is the first large development that has come under City Plan and part of the idea was to incorporate neo-traditional design, new urban feeling with openness, smaller lots with detached garages. There are two products, houses with attached garages and options for detached garages. That garage has an option to put carriage unit/loft/granny flat above it for guest room, bonus room or home office that would typically be inside a residence. If a homeowner wanted to make it a rentable dwelling unit they would need to get a permit to put a kitchen in the unit and pay additional impact fees. When the project was first started, it was assumed that there was a 5-foot rear setback for a utility easement. Since this was the intent of the developer and the intent of the design, it should have been caught earlier and been a modification of the Planning and Zoning Board. Trying to maintain the 15-foot setback also causes problems in a turning radius for cars. Miscio asked if the kind of home occupations would be strictly office or a type of service, such as massage therapist. Barnes said there are currently over 5000 licensed home occupations so there is quite a variety that can be approved, for instance, chiropractor, hair salon, CPA, attorney, music instructor. Miscio has a concern that the neighborhood would change into a retail/commercial orientation. Barnes explained that the home occupation ordinance does not allow retail sales, restaurants, tea rooms or bed and breakfasts. The intent here is that the carriage unit will be used, not the garage itself. Miscio stated his concern about having a separate structure for a home occupation as opposed to an in-house occupation. The character of the home occupation is not the same. Ayraud asked if it is an option for these 14 lots to have a detached garage. Hand replied that it is. Ayraud asked if there are any homes built on these 14 lots. Hand said there were three houses under construction which will be model homes, two with an attached garage and one with a detached garage. Ayraud asked if the buyer would have the option of a 15 or 5 foot setback. Hand said there would be that option. In Favor of the Appeal: Fred Croce, 718 Meadowrun Dr, an owner and developer of Rigden Farm, said they are the guinea pigs for City Plan. It took 18 months to develop the plan. The intent of Rigden Farm and City Plan is to have neighborhood uses that would be compatible with or similar to the downtown old town area. There is a need for greater density to support the high cost of infrastructure today. The proposal that Bob Hand and his group have put together is right in line with what Rigden Farm is all about. ZBA June 28, 2001 Page 7 Vaughn Furness, Jim Sell Design, the lead planners on the Rigden Farm project addressed the Board. During the master plan process, the possibility of the setback was overlooked and part of the reason was the lead in coming through under City Plan. There were other big issues and a lot of time was spent trying to get a project that worked and at the same time the City was having to modify the Land Use Code in order to allow a buildable project. The purpose of the LMN Zoning is to promote a mixed use development to encourage more mixed use in neighborhoods rather than a commercial center in a neighborhood. Greg Byrne, Director of Community. Planning and Environmental Services, explained that the Planning and Zoning Board normally receives a very extensive staff report and a recommendation. ZBA does not and he supervises both sets of staff and thought it was ironic that staff from both sides of the Community Planning Service area are speaking to the ZBA. Also, he feels that they are at the meeting because a mistake was made. The ZBA is in an awkward position. This should have been handled by a private developer and City staff team along with the Planning and Zoning Board. If it had been handled that way, staff would have recommended approval to the P&Z Board. Early in the discussions with the developer of Rigden Farm this kind of development was dicussed. They are providing an option that was envisioned in City Plan and the Code. One of the criticisms of the Land Use Code is that is so prescriptive it boxes people in. The modification process is offered to give developers an option to break the rules and come up with creative solutions that were consistent with the intent and purposes of City Plan and the Code. The answer to the question about whether each lot could have a carriage house is yes. The plan was to provide maximum flexibility both for the developer and the consumer and still fall within the density range of the overall phase of Rigden Farm Miscio asked if it was not for the utility easement, could there be two garages back to back with a common wall. Byrne said that would be a possibility, but that is not the request at this meeting. Miscio asked if every lot has a 5-foot utility easement in the back. Byrne said yes. Miscio asked if there could be wall to wall structure in this subdivision. Byrne said there could not. Board Discussion: Shannon felt that the change in the rear yard setback complies with the spirit of the Land Use Code and also that the Land Use Code was meant to be flexible, that it was going to be a living document. Ayraud was concerned with the privacy issue and also about the distance of 10 feet between dwellings that are back to back. Breth said that situation exists on every lot in town, since the code requires only a 5 foot side setback. Miscio asked if there is a restriction as to how big the carriage house can be. Barnes said certain zones have lot area -to -floor area ratio requirements. The LMN zone deals with density and not lot coverage, so there is not a foot limitation on dwellings. Miscio asked if there could be a carriage house from one end of the lot to the other. Barnes reminded him that there are setback ZBA June 28, 2001 Page 8 requirements — 5 feet on the sides and 15 feet in the rear. The issue that may come into play is the stormwater utility department concerns. They could have regulations on building coverage on the size of those back buildings and if this appeal is granted there should be condition that stormwater department concerns would override the variance. Remington had a concern about rewriting the Code under the the equal to or better than standard, by saying that if reducing the rear setback is equal to or better than the standard because we are increasing the back yard space, then the next person that comes before the Board with a variance on a rear yard setback, the Board is saying that less is better. Barnes offered a comment that if the Board goes with the equal to or better than standard, the Board has to site specific findings of fact for their reasons that this would be equal to or better than. Barnes proposed adding an E-1 to the findings of fact contained in the staff report which would say granting this variance would be in keeping with the vision of the Rigden Farm Project development plan. That would prevent others from asking for a similar variance. City Plan is not intended to change the character of existing developments and the RL zone was kept intact from the old zoning code that predated the Land Use Code. It was rolled over and all existing subdivisions that were low density were zoned RL. The NCL and NCM and NCB which are three old town zoning districts were rolled over. If this variance was granted without any thought to how it would impact the rest of the developed community, the Code would have to be amended to reduce the setback from 15 to 5 feet. Ayraud asked what makes this equal to or better than. Would the change from a 15-foot setback not be for privacy but for variety and to make bigger back yards. Breth said the 15-foot setback applied when the dwelling unit was going to be 15 feet off the property line and the house behind had a15-foot setback so the houses were 30 feet apart. Where there will be garages and potential carriage houses that are only five feet apart there is a difference. It is also enhanced by the fact that they will not allow fences. Discussion was held concerning converting the carriage houses into dwelling units. Barnes explained the variance request is for the detached buildings which could be dwelling units. The buyers will know this up front and 41 additional dwelling units are allowed. Breth asked if after it is all built out, someone could come before the ZBA three years down the road and say they do not have a carriage unit and since there is enough room to add one, could they build one. Barnes said they would have to come before the Board and ask for a variance. They may not be able to qualify under the hardship variance because it would be self imposed. It would have to be an equal to or better than standard again but they would be exceeding the density of the vision plan. It might be exceeding the density of the Land Use Code. No one has entitlement to do something just because someone else did. Shannon said we are addressing issues we are not asked to address. Ayraud stated that they were addressing issues that part of City Plan was meant to address. The fact that they asked for a variance impacts other issues. The Board is required to look at those issues or else the whole Plan is being ignored. Barnes explained that a carriage unit may be built on one lot and another one on the lot next door so they would be 10 feet apart. Whether or not that is appropriate to ZBA June 28, 2001 Page 9 have dwellings 10 feet apart is a concern. It may need a condition where they have to be on opposite comers of the lots. If it is just garages, it may not be a problem, but if it is carriage houses they may need to be flipped on the other side of the lot. Hand addressed the Board concerning some of the issues being discussed. He was just looking at the practical side of the issue which was getting a car into the detached garage. The second filing of Rigden Farm will be asking for this modification because they want the option of building detached garages. As far as dwelling units being 10 feet apart, that is what the homes are now. They are built with a 5-foot side yard setback so the houses are 10 feet apart. Phase 2 of Rigden Farm is going through PDP at this time and they will ask for a modification from the P&Z Board so that it will blanket the entire development. Shannon asked if it would influence P&Z if the ZBA does approve this variance. Eckman said it should not. Jones said the criteria available to them to use to grant a modification does not address anything about precedents that have been set. The issue will stand on its own. Barnes said the standards they have to find are identical to the standards the ZBA have to find in order to grant the modification for the equal to or better than. Miscio asked if anyone had a problem with a detached building being used for an occupational use. Stockover stated that the rules and regulations are already in place for that. Jones read a portion of the staff report that would clarify that issue. The purpose of allowing a home occupation as a permitted accessory use to a dwelling is to permit the inhabitants of the dwelling to conduct self employment (and one support employee) on the property where that inhabitant resides in buildings where the residential character that one would normally expect to find on a residential lot such as homes, sheds, or garages. This self-employment use is intended to only be permitted when the impact to the neighborhood is minimal. So if it is a type of building in the backyard that would not normally be in a backyard, it would not be allowed through the home occupation standards anyway. Ayraud asked since there are no neighbors now how are they being notified of this variance. Barnes said notices went out to property owners who own within a certain radius of that block. None of them were occupied by homeowners, but homeowners that are going to buy in this block will know going into it that this can be done. Ayraud questions how the new homeowners are going to know the possibilities. Ordinances and covenants can be looked up, but how will they know about this variance which changed the ordinance. Hand explained there will be a map in the sales office to show the utility easements, and the different options of each lot. Remington made a motion that Appeal 2343 be approved under the equal to or better than standards based on findings of fact and conclusion as outlined in the staff report with two additions, one being E-1 that keeps with the specific intent and character of Rigden Farm subdivision and E-2 that it is a new subdivision, not detrimental to the public good as outlined in the staff report and with the condition that the stormwater department concerns overrides this variance. ZBA June 28, 2001 Page 10 Eckman said the Board could adopt all the findings of fact that are contained in the staff report especially with regard with the first variance, A B,C,D,E plus the ones that have been specifically mentioned. Shannon seconded the motion. Miscio asked if there are any other codes that need to be addressed such as fire. Breth said no extra fire protection is necessary since they are 10 feet apart. Vote: Yeas: Breth, Pawlikowski, Shannon, Stockover, Ayraud, Miscio, and Remington Nays: None. Ayraud stated the motion adopted only addressed Findings A through E regarding setbacks and did not include findings regarding home occupation. Ayraud moved to amend the motion by adopting Findings F through I to include use for home occupations. Shannon seconded the motion. Vote: Yeas: Breth, Pawlikowski, Shannon, Stockover, Ayraud, Miscio, and Remington Nays: None. Both parts of Appeal 2343 have been approved. Breth asked if the Code should be changed to allow home occupations in detached buildings. Jones said that is under consideration for the next round of Code revisions. Breth asked if it would be retroactive to existing conditions of existing detached garages. Jones said it would be for anyone who applied for a permit after the rule is changed if it is changed. Breth asked if it would be for existing garages or the construction of a new garage. Bames said he would not be in favor of allowing people building new detached buildings in existing subdivisions. They need to get a zoning variance. The impact on existing developments would need to be thought through clearly and any Code changes regarding that item would come before the ZBA for their recommendation. Remington asked if modifications by P&Z and variances by ZBA are published anywhere with the ordinances. Jones said when modifications are done there is a general note placed on the approved site plan that specifically calls out what modifications were granted. Eckman stated that we do not record with Latimer County Clerk and Recorder any notice of these variances that are granted. Likewise, since it has already been platted and all the site plans have been previously recorded, it is not possible to put a note on that as is done with the modifications that have been granted by the P&Z. Maybe a notice of the variances that are granted by the ZBA should be recorded. Remington was concerned about these particular 14 lots being sold and if someone does a survey, it will not be correct. Breth said they can rewrite the covenants that these particular lots are allowed to have carriage houses/garages 5 feet off the property line. ZBA June 28, 2001 Page 11 Jones stated that it would probably be appropriate that before a code change is taken to Council it would be taken to P&Z board for recommendation and also bring it before the ZBA for their input. Breth said he would like to have the ZBA input first since ZBA is the one with the problem down the road. Jones said staff will draft a proposed code change and bring it to both ZBA and P&Z for their recommendations and in their motions whether it is supported as purposed by staff or whether a change should be made. Other Business: None Meeting adjourned at 10:30 a.m. a, i� William Stockover, Chairperson D✓-�, 13 a-�" Peter Barnes, Zoning Administrator