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HomeMy WebLinkAbout09/10/2015 - Zoning Board Of Appeals - Agenda - Regular MeetingMichael Bello, Chair Heidi Shuff, Vice Chair Daphne Bear Bob Long John McCoy Ralph Shields Butch Stockover Council Liaison: Bob Overbeck 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 SEPTEMBER 10, 2015 8:30 AM  CALL TO ORDER and ROLL CALL  CITIZEN PARTICIPATION (Items Not on the Agenda)  APPROVAL OF MINUTES FROM PREVIOUS MEETING  APPEALS FOR VARIANCE TO THE LAND USE CODE 1. APPEAL ZBA150036 Address: 2201 Cedarwood Drive Petitioner: Mark Deines, ABD Ltd. Owners: Patrick Plaisance & Altisaya Vimuktanon Zoning District: R-L Code Section: 4.4(D)(2)(c) Project Description The variance request is to build a 635 sq. ft. addition to the house and allow two corners of the addition to encroach into the rear setback 7.42 ft. and 3 ft. 2. APPEAL ZBA150037 Address: 2902 Blue Leaf Drive Petitioner/Owner: Aran Fridal Zoning District: R-L Code Section: 4.4(D)(2)(c) Project Description: The variance would allow a deck to be built 5 ft. into the required 15 ft. rear-yard setback. ZONING BOARD OF APPEALS AGENDA Zoning Board of Appeals Page 2 September 10, 2015 3. APPEAL ZBA150038 Address: 200 S. College Ave, Suite 100 Petitioner: Amy Laner. ANJO Designs Owner: Jesse Laner, C3 Real Estate Solutions Zoning District: D Code Section: 3.8.7(M)(1), 3.8.7(M)(4)(a), 3.8.7(M)(4)(c), 3.8.7(M)(4)(d) Project Description: The request is to allow an Electronic Message Center sign, approximately 5 sq. ft., to be displayed in the ground floor window of the building. This request would require the following variances: 1) Allow the sign’s message to be animated. 2) Allow the message to change more than once per minute. 3) Allow the changing message to scroll. 4) Allow the message to display more than a single color, value, and hue with a single color background. 5) Allow the electronic message center to be 100% of the total sign face area; maximum allowed is 50%.  OTHER BUSINESS  ADJOURNMENT Michael Bello, Chair Heidi Shuff, Vice Chair Daphne Bear Bob Long John McCoy Ralph Shields Butch Stockover Council Liaison: Bob Overbeck 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. • Call to Order and Roll Call REGULAR MEETING MAY 14, 2015 8:30 AM • Approval of Minutes from April meeting Shuff made a motion, seconded by Bear, to approve the minutes of the April 2015 meeting. Yeas: Shuff, Long, Shields, Bello, Bear and McCoy. Nays: none. Abstain: Stockover. THE MOTION CARRIED. • Bello stated that the Zoning Board of Appeals By-Laws contain provisions regarding the order of hearings of an appeal and the order is not consistent with the order found in the Land Use Code. However the By-Laws allow the order to be different if a majority of the Boardmembers present approves the change. • Bello made a motion, seconded by Shuff: that the Board approve the Order of Hearings of an Appeal as described in Land Use Code Section 2.2.7(c) for the first appeal. Yeas: Shuff, Long, Shields, Bello, Bear and Stockover. Nays: none. THE MOTION CARRIED. • Citizen Participation (Items Not on the Agenda) • Appeals for Variance to the Land Use Code 1. APPEAL #BPA15001 Address: Petitioners Owners: Zoning District: 201 East Elizabeth Street 1) Joseph Piesman 2) John Snyder 3) Cindy & Tom Laupa 4) Aaron & Ashley McGrew Paul Milewski and Julie Rickett N-C-B Zoning Board of Appeals Page2 5.14.15 Project Description: On April 15, 2015, the Community Development and Neighborhood Services (CONS) Director made a decision under Land Use Code Section 3.8.25 to authorize a change of use permit which would allow a previously abandoned fraternity house to be re-established on the property at 201 East Elizabeth Street. Three conditions were imposed on this approval: • The building occupants shall be limited to 18 occupants. • No fraternity meeting shall exceed 18 attendees. • Eight off-street parking spaces are provided as shown on the site plan dated 03/26/15. (**Secretary's note: Please see the verbatim transcript for this item.) 2. APPEAL #2804 - Approved Address: Petitioner/Owner: Zoning District: Code Section: Project Description: 5331 Fossil Ridge Drive Paulo deBrito R-L 4.4(D)(2)(c) The variance would allow a patio cover with posts to encroach 2 feet into the required 15 foot rear- yard setback. Staff Presentation: Beals showed slides relative to the appeal and noted that it is a corner lot on Fossil Ridge Dr and Fossil Ridge Dr West. The slides show both existing conditions and the proposed patio cover. The existing condition has a kind of walk out basement with a retaining wall around it. The structure is an attached structure so it allows for a zero setback on the side of the property but there are still in place rear and front setbacks. The proposed structure is a covering with posts which would encroach into the rear-yard setback by two feet. The applicant's letter explained that when it rains there is a pooling issue and possibly flooding conditions. He noted there is HOA open space behind the subject property and the covering structure would be open on two sides, with one side next to the home and one side next to a fence. This property was built and approved while it was still in Larimer County. Applicant Presentation: R Cook Cloninger, 5327 Fossil Ridge Drive, spoke as a representative of the deBrito's. She noted the neighborhood was annexed into the City in 2012 and many nonconforming structures exist in the neighborhood. She clarified the home is a single family attached townhome built in 1979-80. They have designed the roof to come over the patio wall that makes it like a swimming pool. The rain water would be diverted into the yard rather than into the cement area of the patio. The deBrito's have had damaging flooding issues twice in the last two years and the requested patio cover will help prevent future flooding. As a neighbor, she is in support of the variance. Audience Participation: None Board Discussion: Long stated this does not seem to be an issue at all; there is the hardship of the well, and given that it backs to open space it's not really impacting anyone to the rear. Bear made a motion, seconded by Stockover, to approve Appeal No. 2804 for the following reasons: the granting of the variance would not be detrimental to the public good, the variance request will not diverge from the standards but in a nominal an inconsequential way when considered within the context of the neighborhood, the HOA land immediately behind Zoning Board of Appeals Page3 5.14.15 the property provides adequate separation to neighboring residential properties. The appeal is specific to the encroachment for a structure that is open on two sides. Yeas: Shuff, Long, Shields, Bello, Bear, Stockover and McCoy. Nays: none. THE MOTION CARRIED. 3. APPEAL #2805 - Approved Address: Petitioner/Owners: Zoning District: Code Section: Project Description: 1052 Briarwood Road Edward and Christine Fast R-L 4.4(D)(2)(c) The variance request would allow the minimum rear-yard 15 foot setback required in the R-L zoning district be reduced to 7 feet in order to accommodate an addition to the existing shed. At completion the shed will be 8 feet x 24 feet, or 200 square feet. Staff Presentation: Beals showed slides relevant to the appeal and noted that this addition takes the size of the structure over the 120 square feet or less requirement for a shed not needing a permit; therefore a building permit is required. If the structure were a stand-alone structure, instead of an addition, it would not require a building permit. Beals stated staff is recommending approval of the variance and noted there are two homes behind the property. Bear asked if the existing shed is also eight feet tall. Beals replied in the affirmative. Bello asked if an additional detached shed could be built. Beals replied in the affirmative and noted the lot size must be three times greater than the total building floor area in the R-L zone district. Applicant Presentation: Eddie Fast, 1052 Briarwood Road, stated this addition would house the items not enclosed in the shed. Audience Participation: None Board Discussion: Bear asked if there was any neighborhood opposition. Beals replied that he did not receive any opposition correspondence. Shuff stated the issue appears to be nominal and inconsequential. Bello made a motion, seconded by Shuff, to approve Appeal No. 2805 for the following reasons: the granting of the variance would not be detrimental to the public good, if the addition was a free-standing structure, it would not require a building permit, the height of the structure is only two feet taller than an allowed six-foot tall fence, the total size of the shed is approximately 200 square feet in size, and the grade change of the lot gives the appearance that the addition is shorter than the existing portion of the shed. Therefore, the variance request will not diverge from the standards but in a nominal and inconsequential in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Yeas: Shuff, Long, Shields, Bello, Bear, Stockover and McCoy. Nays: none. THE MOTION CARRIED. 4. APPEAL #2806 - Tabled Address: Petitioner: Owners: Zoning District: Code Section: 965 Bungalow Court Jeff Schneider, Armstead Construction Louis and Barbara Sunderland N-C-L 4. 7(0)(3) Zoning Board of Appeals Page 4 5.14.15 Project Description: The existing structure exceeds the rear 50% of the lot allowable floor area by 25.75 square feet. The variance request would allow an additional 229 square feet of allowable floor area in the rear 50% of the lot for a new one-car garage. Staff Presentation: Beals showed slides relevant to the appeal and stated the property is located between Washington and Mack Streets and is on the corner of Bungalow Court. The garage proposal still meets setbacks; therefore, the appeal request is to increase allowable floor area. Previously, a similar variance request for a garage was approved; however, the structure was never built and the variance expired. The lot depth is quite short, at 66 feet, and typical lot depth in the N-C-L is 140 to 190 feet. He stated Staff is recommending approval and could be considered a hardship not caused by the applicant and a strict application of the code would result in a practical difficulty upon the applicant. Bello asked if the whole garage would be in the rear portion of the lot. Beals replied in the affirmative. Shuff asked how the home and garage would be oriented. Beals replied the front door is on the west side of the structure and Bungalow Court wraps around the lot. Usually when a street changes direction there will be a new street named, but because this is the same street, we really have to go with which way the front door faces. Applicant Presentation: Jeff Schneider, Armstead Construction, homeowner representative, stated, on Option B, should the front door face north vs the west; the allowable floor area division would have been different. He noted the current residence is already non-conforming and is over the allowable rear-lot square footage. He noted detached structures are not uncommon in the area. Audience Participation: None Board Discussion: Shuff clarified that the variance request was only for increased square footage in the rear half of the lot. The site plan shows the proposed garage being located in line with the front entry of the house rather than ten feet back, per code. Beals acknowledged there is a newer code section which states that the accessory structure, or garage, would need to be set back an additional ten feet from the primary building. Therefore, if the Board approves the floor area variance, the structure would need to be set back ten feet. Bello commented that if it were stepped back ten feet then the rear setback would be in violation. He stated it may be beneficial to table this item in order to keep the applicant from needing to re-apply for the additional variance. The Board discussed options. Shuff noted that we would need to get a formal request with additional information. Eckman remarked that there would also need to be public notification for the different issues. Bello asked the applicant if tabling and re-submitting the item would be preferred. Mr. Schneider replied in the affirmative. Bello made a motion, seconded by Shuff, to table Appeal No. 2806 until the June meeting. Yeas: Shuff, Long, Bello, Shields, Bear, Stockover and McCoy. Nays: none. THE MOTION CARRIED. 5. APPEAL #2807 - Approved with 10 foot eave height Address: Petitioner/Owner: Zoning District: Code Section: 417 Maple Street Platinum Properties, LLLP N-C-M 4.8(E)(3) Zoning Board of Appeals Page 5 5.14.15 Project Description: The variance would allow a two car garage to be built encroaching 10 feet into the required 15 feet rear yard setback. (**Secretary's Note: Long recused himself from the discussion of this item due to a conflict of interest.) Staff Presentation: Beals showed slides relevant to the appeal and stated this property is located between N. Sherwood and N. Meldrum. This parcel was the result of a lot subdivision from the rear half of two lots. He stated the proposed garage would sit five feet from the rear lot line and the proposed eave height is 13 feet. The rear property line for this property is the side property line of the neighbor. Because this is the rear property line there is a 15 foot setback required, but the neighbor would only have a 5 foot setback for the same property line. They are proposing to have a 5 foot setback, which would be similar to that of neighboring properties. The proposed height of the structure is 13 feet at the 5 foot setback and then slopes higher to the peak. There are no windows on the south wall of the building facing the neighbor. Beals stated staff is recommending approval of the variance and stated a letter was received by a neighbor indicating concerns with the request. Shuff asked if the proposal meets the code height requirements for an accessory building. Beals replied the eave height limit for an accessory building is 13 feet. Applicant Presentation: Larry Peterson, General Partner of Platinum Properties LLLP, new owner of the property, stated this is an irregular lot on an alley and described the aspects of the lot. He stated the proposed eave height is 13 feet on the side wall and stated this would be a considerable improvement to the property. Mr. Peterson stated the objecting neighbor was under the impression this was a duplex; however, it will be a single-family residence. Additionally, he stated neighbor Mark Williams does not object to the garage. Bear asked about the reason for the garage position. Mr. Peterson replied the lot is irregularly shaped and this location would preserve back yard space without dividing the yard into 2 spaces. Bello asked the applicant to speak to the height of the structure and asked if there is living space above the garage. Mr. Peterson replied in the negative and stated that space is additional storage. Bello asked if Mr. Peterson has been in touch with the concerned neighbor. Mr. Peterson replied his partner has had a conversation with the neighbor who was concerned the property was going to be a duplex; after assuring him the intent was single-family; the neighbor seemed to imply he was no longer concerned . However, there is no written documentation of that. Shields asked about the house height. Mr. Peterson replied the house is garden-level and guessed the eaves are about twelve feet. Bello asked if the garage would be taller than the house. Mr. Peterson replied it would be about a foot and a half taller. Bello asked if the applicant would be willing to reduce the height of the garage. Mr. Peterson replied he does not see an issue with that. McCoy asked about the structure on the other side of the fence. Mr. Peterson replied it is a concrete block structure with two garage doors which open onto the alley. McCoy asked if the height of that structure is similar to the proposed garage. Mr. Peterson replied it is probably eight feet in eave height. McCoy asked what property is to the east. Beals replied that the property across the alley is a two- story multi-family building and there is a commercial auto repair shop across Maple St. Audience Participation: None Zoning Board of Appeals Page 6 5.14.15 Board Discussion: Shuff stated the eave height along a side lot line for an accessory building with no habitable space is limited to ten feet at grade, as per the Land Use Code for the N-C-M zone district. Mr. Peterson replied that area was supposed to be storage; however, a 10 foot eave height could probably work. Beals clarified the difference between habitable and non-habitable space and the code requirements for each; a 13 foot eave height is allowed for habitable space and a 10 foot eave height is allowed for non-habitable space. Additionally, he noted the request is only for the rear setback and an additional variance would be required should the applicant want the 13 foot eave height. The building permit would require a 10 foot eave height. Bello made a motion, seconded by Shields, to approve Appeal No. 2807 for the following reasons: the granting of the variance would not be detrimental to the public good; on the other side of the property line there is a five foot side yard setback, the south side of the building that faces the rear property line would need to have an eave height no higher than 10 feet; there are no windows on the south side of the building; therefore the variance would not diverge from the standard but in a nominal and inconsequential way when considered in the context of the neighborhood, and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2 Shuff noted the neighbor to the south had concerns about the size and mass of the garage and stated the mass issue has been addressed and the size is less than the 600 square feet allowed by code. The vote on the motion was as follows: Yeas: Shuff, Shields, Bello, Stockover and McCoy. Nays: Bear. THE MOTION CARRIED. 6. APPEAL #2808 - Approved Address: Petitioner/Owners: Zoning District: Code Section: Project Description: 6325 Kyle Avenue Clarence and Carol Rothfuss U-E 4.2(0)(2)(d) The variance would allow a 240 square foot shed to encroach 8 feet into the required 20 feet side- yard setback. Staff Presentation: Beals showed slides relevant to the appeal and stated this property was originally developed in the County and, as U-E zoned in the City, requires a 20 foot setback. He noted the property abuts the Larimer County Humane Society property to the north. The Humane Society has a different use with different setbacks. Residential use has a 20 foot setback. The Humane Society driveway is next to this property. The proposed shed would help to visually block that traffic. Beals stated the proposed 240 square foot 8 foot tall shed is actually already constructed. Staff is recommending approval. Applicant Presentation: Clarence Rothfuss, 6325 Kyle Avenue stated that his house has a walk out basement that is on an acre lot which slopes. This is the only place to locate the shed without driving on someone else's property. He applied for a building permit and was told he needed a variance. He thought 12 feet would be enough of a setback and later was told since he had a bigger lot that he needed a 20 foot setback. He has started construction. Shuff asked how far the structure is from the side property line. Mr. Rothfuss replied it is 12 feet from the north line, which is the side property line. It's approximately 30 feet from the front to the street. He described how the sloping lot creates issues with placing the shed without lots of fill dirt. Zoning Board of Appeals Page 7 5.14.15 Bello remarked that Mr. Rothfuss knew he needed a variance but built the shed anyway. Mr. Rothfuss responded that he did not know he needed a variance until after the shed was built. It would be tricky to move the shed. Beals clarified Mr. Rothfuss had applied for a building permit but it was never issued. Stockover asked why the shed could not be moved. Mr. Rothfuss replied the shed would need to be dug into the ground because of the slope and a tree would need to be removed. Stockover asked why the shed could not be built at grade. Mr. Rothfuss replied he would have to put in 4 feet of fill . The current location of the shed was previously the Humane Society driveway. A survey showed the driveway was in the wrong place and on his property. Bello asked if this shed would be driven into. Mr. Rothfuss replied in the negative that will be used for storage. Audience Participation: None Board Discussion: Bear stated there are other sheds in the area and this will have no real impact on the neighbor. Long noted the property abuts an intense commercial use possibly with the driveway for that use on part of his property. Bear made a motion, seconded by Shuff, to approve Appeal No. 2808 for the following reasons: the granting of the variance would not be detrimental to the public good, the other side of the property is the driveway to the Larimer County Humane Society, the variance request will not diverge from the standard but in a nominal and inconsequential way when considered in the context of the neighborhood, and this variance will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Bello asked if the new Human Society will be located in this location. Mr. Rothfuss replied it will be in a new location near the airport. The vote on the motion was as follows: Yeas: Shuff, Shields, Bello, Bear, Stockover and McCoy. Nays: None. THE MOTION CARRIED. 7. APPEAL #2809 -Approved Address: Petitioner: Owner: Zoning District: Code Section: Project Description: 4014 S. Lemay Avenue #4 Zak George Landscaping Terry L Dickinson, Revocable Trust R-L 4.4(D)(2)(c) The variance would allow a pergola 13.6 feet in height, and side screens, to be attached to the existing deck at a zero foot setback from the rear property line. The approved PU D allowed for a 5 feet encroachment into the required 15 feet rear-yard setback. Staff Presentation: Beals showed slides relevant to the appeal, noting the property abuts the golf course. He stated the property already has a deck, but the applicant would like to add a pergola and screening in order to prevent damage to the main structure from golf balls. Additionally, Beals stated there is a utility and drainage easement in the area; for which the providers do not want to vacate the easement but both would accept the encroachment. Beals noted staff is recommending approval of the variance request. McCoy asked if the existing deck encroaches into the easement. Beals replied in the affirmative. Zoning Board of Appeals Page 8 5.14.15 Bello asked if the proposed structure is enclosed. Beals replied there is screening with an open stair case on the south side. Stockover asked if there is landscaping on the other side of the property line. Beals confirmed the hedges and shrubs are primarily outside the property line. Applicant Presentation: Zak Villegas, Zak George Landscape, stated the pergola posts will be set next to the existing deck and clarified the pergola eaves do not cross the property line. He stated this change would not affect views of the neighbors and would help protect the property from golf balls. Bello asked about the edging. Mr. Villegas replied the HOA has approved the replacement of the concrete edging with strip stone edging. Shuff asked what the pergola wall height will be. Mr. Villegas replied they would be rail height approximately 36 inches tall, if they are constructed. They are still in design stage. Shuff suggested the Board consider the drawing with the section view without the pergola extensions. Audience Participation: None Board Discussion: Bear asked if there is a similar screen a few properties away, based on the photos. Terry Dickinson, owner, 4014 South Lemay, Unit 4, stated the foldable privacy screen was put up by the new owner as protection from golf balls. Long stated this would not negatively impact the golf course and noted there was no opposition from neighbors. Shuff expressed concern this may be precedent setting, though she does not necessarily have any concerns with this particular proposal. Bello stated the applicant has not demonstrated what they are doing with screens. Mr. Villegas replied the screens are decorative metal and will be attached to the posts themselves. Stockover asked if this would be more than a typical wood-framed screen. Mr. Villegas replied a decorative metal design would be framed by the metal frame. Beals clarified that the staff report was intended for the pergola and screens. Mr. Villegas stated the pergola would not be attached to the deck but will sit to its east and the screens will not go all the way to the ground. Mr. Dickinson replied the screens will be the size of relatively large pictures. The stone section would be below the decorative screens, which would capture golf balls. He stated other units have protective devices of some type, including some pergolas similar to this design. Bear asked if golf balls are considered a hardship. Beals replied he did not use the hardship criteria as this is not the only property abutting a golf course and is therefore not unique. However, the Board could find that a hardship exists. Shuff suggested conditioning the approval to have a design similar to what is shown. Mr. Villegas replied the applicant wanted to ensure the variance was approved prior to committing to a design. Bello made a motion, seconded by Stockover, to approve Appeal No. 2809 for the following reasons: the variance is not detrimental to the public good, the property backs to a golf course providing open land greater than 15 feet, the approval is for the drawing labeled L 1A, with the pergola not extending past the columns, and the approval is for the screens on the drawing labeled custom designed metal screens; therefore, the variance request would not diverge from the standard except in a nominal and inconsequential way when considered in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Yeas: Shuff, Long, Shields, Bello, Bear, Stockover and McCoy. Nays: none. Zoning Board of Appeals Page 9 THE MOTION CARRIED. (**Secretary's note: The Board took a recess at this point in the meeting.) 8. APPEAL #2810 -Approved Address: Petitioners/Owners: Zoning District: Code Section: Project Description: 311 West Street Robert, Laura, Lark, and Delfinia Mosiman N-C-M 4.8(0)(3), 4.8(E)(4), 4.8(F)(1)(c) 5.14.15 The request is to allow a 240 square foot addition to the existing 288 square foot garage with the following 3 variances: 1) The addition would encroach 1.8 feet into the required 5 feet side-yard setback. 2) The addition would increase the allowable floor area in the rear 50% of the lot by 72 square feet. 3) The addition to an accessory building would encroach 1 foot into the additional 10 feet front yard setback from the principal building. Staff Presentation: Beals showed slides relevant to the appeal and discussed the variance requests. This is an existing garage and the house is in the rear half of the lot. The Board approved a variance request in January for the neighboring property, 307 West St, which included demolishing this 240 square foot garage in order to build a new 607 square foot garage. This variance request is to move the garage from 307 to 311 West St; attach to the existing garage; and match the setback of the existing garage which encroaches about 1.8 feet into the 5 foot side yard setback. They are currently meeting the total allowable floor area but not the allowable rear half. This accessory building is only 9 feet from the front portion of the primary structure. Beals stated staff is recommending approval of the three variances, noting the property owner owns both properties, and the most effected neighbor. Applicant Presentation: Robert Mosiman, 307 West Street and property owner at 311 West Street, stated he plans to use the property for extended family in the future. He originally intended to have this garage removed, but had issues with finding someone to take it and it was also very costly to have it moved. Buying 311 West St gave him the opportunity to save and repurpose the garage. He stated the garage could not fit on the property in any other fashion. He loves his front yard. Additionally, he noted he is the only neighbor affected by this change. He stated the garages will be easily retrofitted to mesh with one another. Bello asked if the rear wall will be taken out. Mr. Mosiman replied the garage door of his current garage will be in the middle of the two garages making it tandem garage that is only accessed from the alley. Audience Participation: None Board Discussion: Bello and Stockover stated this does not seem to be controversial. Long supported the repurposing of the garage. Bello made a motion, seconded by Bear, to approve Appeal No. 2810 for the following reasons: the granting of the variance would not be detrimental to the public good. The property to the south is owned by the petitioner, the additional 72 square feet does not exceed the allowable floor area for the lot, the addition does not exceed the limited 600 square feet for an accessory building, the addition matches the setback of the existing structure, all of the buildings are in the rear half of the lot and the accessory building is located further back than would another accessory building if the primary building was on the front half of the lot, and the addition of the accessory building does not include a driveway extending to the street. Zoning Board of Appeals Page 10 5.14.15 Therefore, the variance request will not diverge from the standard except in a nominal and inconsequential way when considered in the context of the neighborhood, and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Yeas: Shuff, Long, Shields, Bello, Bear, Stockover and McCoy. Nays: none. THE MOTION CARRIED. 9. APPEAL #2811 - Approved Address: Petitioner/Owner: Zoning District: Code Section: Project Description: 307 Riverside Avenue Sean Windsor C-L 3.5.2(E)(3); 3.8.19(A)(6) The variance would allow a new residential building to be built with portions of the walls encroaching 2 feet into the required side-yard setback and portions of the eaves encroaching an additional 6 inches past the allowed 2.5 feet projection into a required setback. Staff Presentation: Beals showed slides relevant to the appeal and discussed the variance request. This property is a unique shaped commercial use lot in between Whedbee and Smith St. The property line is shared by a commercial property and an alley. The neighbor on the east property line does not have the same setback as the residential setback and they could build closer to the property line. He stated staff is recommending approval of the variance given only two corners of the proposed building, not the entire length of the wall, encroach into the side setback. Bello asked if the property would be subdivided. Beals replied this C-L zone district would allow for multi-family or two single-family detached structures. There are no floor area ratios here. Shuff asked about the required front and side yard setbacks. Beals replied the residential setback standards in Article 3 would apply. Bello asked if Riverside is the front property line. Beals replied in the affirmative. The variance is only for the side yard setback. He stated the rear lot line is the property line most parallel with the front. Applicant Presentation: Sean Windsor, 513 East Oak Street, he is also the neighbor on the opposite side of the alley to this house. He stated he was originally told the rear setback was 8 feet. Bello noted the building could be moved two feet to the west without any variance. Mr. Windsor replied the alley is used to access homes and it would be beneficial to move the house east and provide more room on the alley side. Additionally, he noted the property on the other side of the alley is a commercial use and the actual property line has been difficult to locate by surveyors or the City. Beals clarified the front setback is 15 feet; side line setback is 5 feet; and the rear setback is 8 feet because of the alley. Mr. Windsor stated this structure will not have a garage and is 900 square feet total with a 500 square foot footprint. Audience Participation: None Board Discussion: Long noted non-rectangular lots make setback definitions difficult and it makes sense to place the home further from the alley. Stockover noted the commercial property could redevelop; therefore, the current use should not be taken into consideration. He stated he is not opposed to the variance, but would not include a reference to that use in the approval. Zoning Board of Appeals Page 11 5.14.15 Shuff asked if the commercial property is also in the C-L zone. Beals replied in the affirmative but noted commercial uses are not subject to the same setbacks as residential uses in the zone. Shuff asked if this variance would have any negative impact on what the commercial property owner could build within Building Code requirements. Beals replied it would be difficult to make that judgement at this point, but he would consider the impact nominal. Shuff stated the Board should be careful in its wording given this location seems convenient; however, the standards appear to be able to be met. She did state the nominal and inconsequential argument could be made. Bear asked if the variance request would be necessary if proposed building were to be used for commercial purposes. Beals replied in the negative stating a residential building with a commercial use would meet Code. McCoy stated the commercial property would likely remain a commercial use. Stockover stated the commercial property could expand to the property line which would impact the home owner. Additionally, he stated this type of infill needs to be accommodated as smaller housing is an important community need. Shuff agreed maximizing the space between the existing and proposed houses is beneficial Shuff made a motion, seconded by Long, to approve Appeal No. 2811 for the following reasons: the variances are not detrimental to the public good, the encroachment is for two corner points and not the entire length of the wall, the neighbor on the other side of the east property line does not have the same residential setback; therefore the variance request would not diverge from the standard but in a nominal and inconsequential way when considered in the context of the neighborhood, and will continue to advance the purposed of the Land Use Code as contained in Section 1.2.2. Yeas: Shuff, Long, Shields, Bello, Bear, Stockover and McCoy. Nays: none. THE MOTION CARRIED. 10. APPEAL #2812 -Approved with conditions Address: Petitioner/Owner: Zoning District: Code Section: Project Description: 4030 Big Dipper Drive Tyler Shurigar U-E 4.2(D)(2)(c) The variance would allow a 192 square feet accessory building to be built 12 feet into the required 25 feet rear-yard setback. Staff Presentation: Beals showed slide relevant to the appeal and discussed the variance request. The property is a corner lot; Strauss Cabin Rd and Big Dipper Dr. The lot requ irement in the U-E district is a half-acre. He stated this property is part of the Old Oak Estates subdivision and the final grading was not approved at the time the development agreement for the subdivision was approved; therefore, those plans needed to be worked out at time of building permit. This lot has substantial grading changes, eliminating buildable areas on the lot. The subdivision was approved with traditional drainage easements along Strauss Cabin and Big Dipper. The storm sewer got built outside of that easement. They built the house further back on the lot. They may have had room for the shed if they built the house closer to the street. He stated staff is recommending approval of the variance per the hardship criteria given the lot grading and position of the house on the lot. He stated any improvements should be approved through the Stormwater Department and stated one phone call was received requesting the shed be built smaller. Zoning Board of Appeals Page 12 5.14.15 McCoy asked if the house was built prior to the stormwater change. Beals replied he believes the existing grading was approved and stormwater changes were made as a condition of the building permit for the house. He recommends a condition to the variance that the retaining wall and the lot be approved by Stormwater. Applicant Presentation: Tyler Shurigar, 4030 Big Dipper Drive, stated the proposed retaining wall is being addressed by a hired engineer who is working with the Stormwater Department. He stated is proposing a 12x16 shed with a roll-up door to house ATVs and motorcycles. Audience Participation: None Board Discussion: Stockover stated it looks like new construction and the proposed shed seems large for the location. Bello asked if the shed door will face the alley or Strauss Cabin. Mr. Shurigar replied it would face west to the alley. Beals noted that what looks like an alley is a private access road; not a public road. Stockover asked if Mr. Shurigar has talked to the neighbor. Mr. Shurigar replied in the affirmative and stated the neighbor has not had much input regarding the shed and more conversation about the fence. Additionally, he stated he will be placing a split rail fence along the property line which is required by the HOA Shields asked if other locations were considered for the shed. Mr. Shurigar replied the only other location would be on the southeast corner where they want the retaining wall; which would be usable for grass; therefore, it was undesirable. Bello asked about moving the shed to the west. Mr. Shurigar replied it would still encroach. Bear commented that the rear yard setback is 25 feet and asked about the side yard setback requirement. Beals replied it is 20 feet and the front setback if off of Big Dipper Drive. Shuff noted the site plan shows a 20 foot rear yard setback. Beals replied that is in error. McCoy asked if this lot is more impacted by the stormwater change than other lots. Beals replied all the lots will require final approval by Stormwater for grading changes; however, this lot may be slightly more impacted by the stormwater pipe. The Board discussed other possible locations on the lot for the shed. Long stated Strauss Cabin Road will continue to get busier; therefore, the shed being visible from there is not too impactful. Bear noted a 12x16 foot shed on a ~ acre lot does not seem impactful. Shuff agreed but noted larger lots come with larger setbacks. Beals remarked that the additional stormwater infrastructure that ended up in their front yard outside the easement, rather than the easement itself could be considered a hardship. They also have the drainage easement and a private drive in their lot. Shuff commented that is why they had to shift everything to the north. Beals noted the maximum size of an accessory building in this U-E zone is 1200 square feet. Long noted the owner could build two smaller sheds without a permit, which would not be preferable to one larger shed. Bear made a motion, seconded by Long, to approve Appeal No. 2812 for the following reasons: the granting of the variance would not be detrimental to the public good, the variance request may be granted due to a hardship of the lot not caused by the applicant and a strict application of the Code results in a practical difficulty upon the applicant. It is not found to be detrimental to the public good in the absence of any written opposition from neighbors and the typical Yi acre lot in the U-E zone does not include additional stormwater Zoning Board of Appeals Page 13 5.14.15 infrastructure outside of the drainage and the primary structure was built closer to the rear of the property. The variance approval is conditioned subject to approval of the location by the City Stormwater Department. Stockover stated he would oppose the motion given a new construction home with a four-car garage and RV parking is requesting a variance. He expressed concern regarding too much leniency in variance approvals. The vote on the motion was as follows: Yeas: Long, Shields, Bello, Bear and McCoy. Nays: Shuff and Stockover. THE MOTION CARRIED. 11. APPEAL #2813 -Approved with Conditions Address: Petitioner: Owner: Zoning District: Code Section: Project Description: 1408 W. Mountain Avenue My Sister Knits, Julie Luckasen Julie Luckasen N-C-L 3.8.3(1), 3.8.3(5), 3.8.3(8), 4.7(0)(5), 3.8.7(C) The request is to allow a home occupation to continue to operate as it has in the past. This request would require the following 7 variances: 1) Allow a home occupation to operate in a detached accessory building. 2) Allow retail sales as a primary function of the home occupation. 3) Allow the home occupation without any additional off street parking spaces for customers and students. 4) Allow the hours of operation extend past 6 pm. 5) Allow more than one co-worker who does not reside in the dwelling. 6) The accessory building exceeds the maximum 744 square feet, that was allowed through a building permit, by 141 square feet, and presently accessory buildings are limited to 600 square feet. 7) Allow a flush wall sign to be displayed above the entrance of the building 8 square feet in size; the code allows a maximum of 2 square feet. (**Secretary's note: Shields withdrew from the discussion of this item due to a conflict of interest.) Staff Presentation: Beals showed slides relevant to the appeal and discussed the variance requests and home occupation license requirements. A typical home occupation license is in an attached, primary residence; not in an accessory structure. Home occupation licenses only allow one co-worker at a time that does not live there. Home occupations need to provide additional off street parking. There is only a one car width driveway. Tandem parking is not recognized as additional parking. Home occupation signage is limited to 2 square feet. A building permit for a 744 square foot garage was issued and completed in 1999. The garage/carriage house site plan submitted with the variance request shows an additional 141 square feet than what was permitted. The Land Use Code now limits accessory buildings to 600 square feet. Home occupation licenses are intended for service businesses, not retail stores. A retail use would be where customers can buy supplies and leave, but that is not permitted by a home occupation license. Home occupations only are allowed to do business until 6 p.m. This business has an advertised class that ends at 8 p.m. Beals noted this business has never received a home occupation license to operate and staff has found these seven variances would be required in order to allow that license to be issued. Beals stated staff is recommending denial of three of the variance requests: the sign size, retail sales as a primary use, and allowing more than one co-worker that does not reside in the structure to be on site at the same time. Staff is recommending approval of allowing the home occupation to be in the detached accessory building, allowing the home occupation to exist without any additional off- street parking, allowing the hours of operation to extend past 6 PM one night a week and only until 8 PM, and allowing the accessory building to be increased in size with the condition the building permit and letter of completion are approved. They need a smaller sign over the entrance door. Zoning Board of Appeals Page 14 Beals noted five neighbors have written letters of support. McCoy asked if retail sales would be allowed as a secondary function. Beals replied in the affirmative stating retail sales would be incidental to knitting classes. 5.14.15 Stockover stated enforcement of this regulation would be based on neighborhood complaints. Bello stated retail sales would seem to be the least obstructive aspect in terms of parking . Long stated traffic would be increased by retai l sales. Beals stated several emails have been received , with at least one email in opposition. Applicant Presentation: Julie Luckasen, My Sister Knits-1408 W. Mountain Ave., expressed concern regarding staff's recommendation that retail sales not continue. She discussed the need for the financial backing of retail sales in order to continue community programs. Ms. Luckasen stated she had followed legal advice in ensuring she met all applicable requirements to operate her business. McCoy asked about the number of employees. Ms. Luckasen replied she has 1.0 FTEs divided among three part-time employees. She stated two employees have been there at one time in the past but the goal is to have only one co-worker present at a time. Shuff asked Ms. Luckasen if she has any concerns with retail sales being secondary. Ms. Luckasen replied most teaching is done in a one-on-one environment and stated there are one to two retail sales per hour, which is low impact for the neighborhood. She stated classes are limited to six people and there is parking on the pad behind the accessory structure. Long asked how many hours per week the store is open. Ms. Luckasen replied the store is open 10-8 on Tuesdays and 10-5 Wednesday through Saturday. She stated classes are typically Tuesday evening and Saturday morning. McCoy asked if retail sales are generally made to class participants or clients coming in. Ms. Luckasen replied most sales are made to clients coming in to the store. Bello remarked that future retail sales would be restricted. Audience Participation: Philip Teeter, 11216 NCR 3, Wellington, discussed difficulty in determining how this business should be classified and stated the impact of this is minimal. He supported the granting of the variances. Robin Stitzel, 1412 West Mountain, has lived next door to Ms. Luckasen for 18 years and supported the business and the granting of the variances. Jennie Wilcock, 4160 Sumter Sq, supported allowing retail sales stating that is not the primary function of the business. She supported the business and the granting of the variances. Mary Ann Hahn-Strand, 2236 Yorkshire St, supported the business and the granting of the variances. She stated parking is not an issue and noted at least one co-worker does ride a bicycle. Rory Schmidt, 612 Laporte Avenue, supported the business and the granting of the variances. She stated retail is ancillary to the business. Jim Reidhead, 707 West Mountain, supported the business and the granting of the variances, citing the unique nature of Mountain Avenue. Harriett Tague, 2613 Stanford Rd, supported the business and the granting of the variances. Wayne Peak, 1415 West Mountain, supported the business and the granting of the variances. Eric Smith, 1216 West Mountain, opposed of the retail sales aspect of the business as the area is not zoned for retail. He expressed concern regarding the business requesting forgiveness rather than permission. Zoning Board of Appeals Page 15 5.14.15 Linda Gentry, 3127 Wheatgrass Ct, supported the business and the granting of the variances. Bear asked if the store advertises. Ms. Luckasen replied advertising is primarily word of mouth; however, there are been some articles in a few magazines, there is a website and some other web pages. The business promotions show craft examples and advertise yarn classes and supplies. Board Discussion: Stockover stated the business community needs to operate on a level playing field and the Board cannot show prejudice nor can it use financial hardship as a criterion. However, he stated this business appears to be neighborhood-oriented and not detrimental to the public good. He also expressed concern regarding potential unintended consequences of approval. Stockover did not express concern regarding parking, supported the 8 PM closure time, supported a maximum of two co-workers on site, supported dealing with the square footage issue as part of a building permit, and supported allowing the sign to remain. He expressed concern regarding retail sales; however, he stated the existing situation seems to be ancillary. Long supported the business but questioned whether or not it is the correct location. Shuff stated a unique community has been created by Ms. Luckasen and noted the vast majority of neighbors seem to be in support. She stated sales could currently be considered ancillary McCoy stated he could support all the variance requests but expressed concern regarding the possible precedence-setting decision regarding retail sales. Bear stated the absence of the craft, not the yarn, would cause the business to cease to exist; therefore it seems retail sales is not the primary function of the home occupation. Long questioned how the Board should vote if retail sales is not a primary function. Bear expressed concern regarding the size of the sign, stating it promotes retail sales. Long noted that Ms. Luckasen stated the retail sales support the educational piece. Shuff stated the two seem to be in tandem. Bear expressed support for the staff recommendation as is. Deputy City Attorney Eckman noted the retail sales decision could be precedence-setting; however, he stated this seems more of a service for the knitting community and suggested the yarn sales could be done differently so as to make the sales ancillary. Stockover stated he is trying to protect against the business growing out of this location and stated he would oppose retail sales, though he considers this to be ancillary sales. Bello asked the applicant for her thoughts on the sign. Ms. Luckasen replied she does not care about the sign. Bello stated the support for this business speaks volumes and agreed retail sales are not the primary use of this business. Bello made a motion, seconded by Long, to approve Appeal No. 2813 as the granting of the variance would not be detrimental to the public good, with the following conditions: the wall sign may be no greater than 2 square feet, retail sales are not the primary function of the home occupation, and no more than one co-worker not residing at the residence may be present at one time. The home occupation would be allowed to operate in the detached accessory building without offsite parking, operations would be allowed past 6 PM one night per week and no later than 8 PM, and the accessory building would be allowed to expand by 141 square feet from the previously permitted 741 square feet with the condition that a building permit and letter of completion are acquired. The variance does not diverge from the standard except in a nominal and inconsequential way when considered in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Yeas: Shuff, Long, Bello, Bear, Stockover and McCoy. Nays: none. Zoning Board of Appeals Page 16 THE MOTION CARRIED. Beals clarified the Board is of the opinion the existing sales are ancillary. Deputy City Attorney Eckman noted there are existing advertisements for yarn sales. Bello stated the ads cannot be primarily for sales. 5.14.15 Bear stated the ads seem to state the yarn is at the location; however, sales do not seem to be the primary focus, rather education and community services are the primary focus. Stockover noted complaints regarding retail activity would trigger the sales becoming primary rather than secondary. Bear suggested conditioning the motion to state that any advertising cannot focus on primary sales. Bello stated he did not make any conclusion regarding the existing sales status but rather stated the Board is denying retail sales as a primary function of the home occupation. Long made a motion, seconded by Shuff, to reconsider the original motion. Yeas: Shuff, Long, Bello, Bear, Stockover and McCoy. Nays: none. THE MOTION CARRIED. Bello made a motion, seconded by Long, to approve Appeal No. 2813 as the granting of the variance would not be detrimental to the public good, with the following conditions: the wall-mounted sign on the accessory building may be no greater than 2 square feet, retail sales shall not be a primary function of the home occupation and there shall not be more than one co-worker in the accessory building at a time who does not reside at the residence. The motion will allow a home occupation to operate in a detached accessory building, allows for the home occupation without any additional off-street parking, allows the hours of operation to extend past 6 PM with the condition of only one night per week and no later than 8 PM, and allows an accessory building to increase an additional 141 square feet from the previously permitted 744 square feet with the condition that a building permit and letter of completion are approved for the additional square footage. Therefore, the variance request will not diverge from the standard except in a nominal and inconsequential way when considered in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Yeas: Shuff, Long, Bello, Bear, Stockover and McCoy. Nays: none. THE MOTION CARRIED. 12. APPEAL #2814 -Tabled Address: Petitioner: Owner: Zoning District: Code Section: Project Description: 256 Linden Street Brandon Silar, LARK Design/Build Property Creations D-Old City Center 3.8.7(1), 3.8.?(H) The request is to install two signs. This request would require the following 3 variances: 1) Allow a projecting sign over the public sidewalk with 46.5 square feet per sign face, the maximum allowed size per face is 12 square feet. 2) Allow the sign at 14 feet 5 inches in height; the maximum allowed height is 7 feet. 3) Allow the flush-wall sign to extend 6 inches more than the allowed 12 inches from the face of the building. Staff Presentation: Beals showed slides relevant to the appeal and discussed the variance requests being oversized. Zoning Board of Appeals Page 17 5.14.15 He stated staff is recommending denial of two of the variance requests and approval of the third as being nominal and inconsequential. McCoy requested information regarding what would be allowed for the sign projecting off the building corner. Beals replied the projecting sign would need to be reduced down to 7 feet in height with no more than 12 square feet of signage per sign face in order to meet Code. Bear asked how many signs would be permitted on the building. Beals replied the number of signs does not matter as long as they are within allowable square footage. Stockover asked if all of the sign allowance can be used on one side of the sign. Beals replied not everything can be placed on one side of the sign. The Board discussed the many previous uses of the building. Applicant Presentation: Brandon Silar, Lark Design/Build and representing Property Creations, stated there is a 300 square foot sign allowance and this sign is less than half of that. He described the collaborative plan for the building which includes visual arts, a music venue, cafe, and recording studio. He stated there will be about 20 individual businesses in the building and the plan is to brand the building as one. He stated all surrounding businesses are in support of the proposed signage. He stated that this building is the oldest building in Fort Collins. He stated that when the building was used as a hotel it did have a corner sign and would likely have been in an art deco fashion. Additionally, he stated the Landmark Preservation Commission has preliminarily approved the corner sign. Bello asked why the sign could not be kept within allowable square footage. Mr. Silar replied the sign is larger in order to be seen more quickly by quicker moving traffic on Jefferson. Bello asked if the "Artery" sign could remain at its proposed size if the marquee sign was eliminated. Beals replied a projection sign is limited to 7 feet in height. Bear asked if there are any projection signs larger than 7 feet in height in Old Town. Beals replied the Northern Hotel is larger, but likely grandfathered. Mr. Silar stated the Northern sign is a 3-story sign and this is a 1-story sign . He noted the overall signage is less than the allowed square footage. Shuff asked if a reduction in the size and scale of the sign would be a possibility. Mr. Silar asked at what size the Board would accept the sign. Audience Participation: None Board Discussion: Long supported the overall concept for the building, and noted building owners in this area have always complained about a lack of visibility from the Old Town Square area. Shields stated he likes the sign and it fits the building. He asked if there is a precedent for approval of this sign. Bello asked about the Max Flats building. Beals replied that sign was not a projection sign. Bear asked if the sign height requirement is regardless of the building height. Beals replied in the affirmative. Bear asked if more than one projecting sign would be allowed. Beals replied in the affirmative. Bello asked if two projecting seven foot signs would be allowed. Beals replied in the affirmative. Bello noted the sign code has benefitted the city. Shuff acknowledged Jefferson is a busier street; however, she stated the sign code exists for a reason and expressed concern regarding setting a precedent. She stated two separate signs would be allowed; however the single sign looks better. Long stated he would prefer an alternative design from the applicant. Zoning Board of Appeals Page 18 5.14.15 Long asked when the building intends to open. Mr. Silar replied the planned opening is in June. Bello stated he could potentially support the sign if it were 7 feet tall plus the floret. Mr. Silar stated his intent is within the character of the Code and noted six separate signs would be conforming. Bello discussed the importance of the sign code. Mr. Silar noted the Landmark Preservation Commission has requested a unique sign given the less- than-desirable look of the building. Bello suggested the sign could be considered nominal and inconsequential if it were 7 feet plus the floret. Deputy City Attorney Eckman noted the nominal and inconsequential criteria apply in the context of the neighborhood. Bello argued the sign fits in the context of the neighborhood. Beals read a letter from Matt Haynes, 234-238 Linden, who had to leave the meeting earlier. He opposed the variance requests as being excessive and not promoting the general purpose of the sign code. Shuff noted the square footage of sign projecting over the sidewalk should also be considered. McCoy supported the marquee variance but could not support the other two variances as is. He supported tabling the item until June. Shuff stated the projecting sign is a large difference. She stated the square footage increase is too large to be considered nominal and inconsequential. Mr. Silar replied he feels they are within the intent of the Code because of other elements of the sign. Bello made a motion, seconded by Long, to table Appeal No. 2814 until the June meeting. Yeas: Shuff, Long, Shields, Bello, Bear, Stockover and McCoy. Nays: none. THE MOTION CARRIED. • OTHER BUSINESS Beals stated there are seven appeals on the June agenda. • ADJOURNMENT The meeting adjourned at 4:34 p.m. Michael Bello, Chairperson Noah Beals, Senior City Planner-Zoning ZONING BOARD OF APPEALS CITY OF FORT COLLINS Held Thursday, May 14, 2015 Council Chambers, 300 Laporte Avenue Fort Collins, Colorado In the Matter of: 201 East Elizabeth Street, Appeal #BPA15001 BOARD MEMBERS PRESENT: Michael Bello, Chair Heidi Shuff, Vice Chair Daphne Bear Robert Long John McCoy Ralph Shields Butch Stockover STAFF MEMBERS PRESENT: Noah Beals, Senior City Planner – Zoning Marcha Hill, Staff Support to the Board Lisa Olson, Staff Support to the Board Paul Eckman, Deputy City Attorney Laurie Kadrich, Director of Community Development and Neighborhood Services Cameron Gloss, Planning Manager 2 1 CHAIR MICHAEL BELLO: Okay, so first I’d like to make a motion…the Zoning Board 2 of Appeals Bylaws contain provisions regarding the order of hearings of an appeal, and the order 3 is not consistent with the order found in the Land Use Code; however, the Bylaws allow the 4 order to be different if a majority of the Boardmembers present approve the change. I’d like to 5 make a motion that the Board approve the order as described in Land Use Code Section 2.2.7(c) 6 for the first hearing…first appeal. 7 BOARDMEMBER HEIDI SHUFF: Second. 8 CHAIR BELLO: Any discussion? Roll call please. 9 MS. MARCHA HILL: Shuff? 10 BOARDMEMER SHUFF: Yes. 11 MS. HILL: Long? 12 BOARDMEMBER ROBERT LONG: Yes. 13 MS. HILL: Shields? 14 BOARDMEMBER RALPH SHIELDS: Yes. 15 MS. HILL: Bello? 16 CHAIR BELLO: Yes. 17 MS. HILL: Bear? 18 BOARDMEMBER DAPHNE BEAR: Yes. 19 MS. HILL: Stockover? 20 BOARDMEMBER BUTCH STOCKOVER: Yes. 21 CHAIR BELLO: We need one more vote, Marcha? McCoy… 22 MS. HILL: Sorry, McCoy? 23 BOARDMEMBER JOHN MCCOY: Yes. 24 DEPUTY CITY ATTORNEY PAUL ECKMAN: Are we going pretty well so far? 25 CHAIR BELLO: I think we’re doing okay. 26 DEPUTY CITY ATTORNEY ECKMAN: One think that we need to do is the citizen 27 participation time…unless I missed it, I didn’t hear you ask if there were any persons wanting to 28 address matters not on the agenda. 3 1 CHAIR BELLO: Okay, you’re right. Thank you. Is there anybody in the audience who 2 would like to address the board for any issues that are not in any of the appeals this morning? 3 Okay, seeing none…could we have the first appeal? That’s what this…so this language…this 4 language, Paul, takes care of the explanation, correct? 5 MR. NOAH BEALS: Alright, so the first item on the agenda today is Appeal number BPA 15001 for 201 East Elizabeth Street. On April 15 th 6 , 2015, the Community Development 7 and Neighborhood Services Director made a decision under the Land Use Code section 3.8.25, to 8 authorize a change of use permit which would authorize a previously abandoned fraternity house 9 to re-establish on the property at 201 East Elizabeth Street. The following three conditions have 10 been imposed on this approval: the building occupants shall be limited to 18 occupants, the 11 fraternity meetings shall…no fraternity meeting shall exceed 18 attendees, and 8 off-street 12 parking spaces shall be provided as shown on the site plan dated 3/26/2015. This decision of the 13 CDNS Director has been appealed by four appellants. That’s an overview of the appeal. 14 CHAIR BELLO: Alright, the next step would be the applicant’s presentation. Is the 15 applicant present? 16 MS. DEANNE FREDERICKSON: Good morning, I’m Deanne Frederickson, I’m from AGPROfessionals; we’re located at 3050 67 th 17 Avenue in Greeley, Colorado. We’re a full service 18 consulting firm; we’re land planners and government relations people in our firm. I’m here 19 today to represent Settle Up Partners in the appeal of the Director’s decision to allow a fraternity 20 use at 201 East Elizabeth Street in Fort Collins. 21 MR. BEALS: Deanne, I do have the hard copies you gave to me. 22 MS. FREDERICKSON: Okay. Thank you. 23 CHAIR BELLO: Would you sign in also? 24 MS. FREDERICKSON: I did sign in. 25 CHAIR BELLO: Okay thank you…appreciate that. 26 MS. FREDERICKSON: I’m sure you know where this site is…the site is located on the 27 corner of Elizabeth Street and Remington Street, one block east of the CSU campus. The 28 building was built in 1924 as a single-family residence. The City of Fort Collins approved a 29 fraternity use at this location in 1978. This was owned and occupied by the Tri-Delt sorority 30 between 1982 until it was sold in 2006. They closed…my clients, Julie Rickett and Paul 31 Milewski, closed on the property in January this year in anticipation of an administrative 32 approval of their application. The current owners submitted a minor amendment application to 33 the City of Fort Collins in December 15, 2014. The application requirement was changed to 34 change of use application which was submitted and administratively approved in April of 2015. 4 1 The site is located in the NCB zoning district, which allows fraternity land use. Division 2 4.9, Neighborhood Conservation Buffer district…the purpose for that is the neighborhood 3 conservation buffer district is intended for areas that are a transition between residential 4 neighborhoods and more intensive commercial use areas or high traffic zones that have been 5 given this designation in accordance with an adopted sub-area plan. It’s interesting to note that 6 the zoning at this location has allowed a fraternity house since 1929; we would expect this since 7 it’s right next to the CSU campus. A fraternity use is normally permitted in the NCB zoning 8 district with Planning and Zoning Board review. However, this particular property was first 9 approved as a fraternity house in 1978 and remained a fraternity house for 28 years, until 2006. 10 Because the occupancy has not been a fraternity for more than one year, staff requested a change 11 of use application to reinstate a previously approved use. The result of a change of use permit is 12 to bring the site into compliance with the development standards. These standards are stated in 13 article three and article four of the Municipal Code, section 3.8.25. A change of use was 14 administratively approved in April 15, 2015 through a building permit application. 15 The site is 18, 870 square feet in size. The building is a two-story building with a 16 finished basement; it has nine bedrooms and five bathrooms. The site and the building will not 17 change substantially except for general maintenance and landscape improvements. The biggest 18 change will be in the parking lot. The parking lot will be paved and re-striped; the general 19 circulation pattern will direct cars from the alley through the parking lot and exit onto Elizabeth 20 Street. The new parking lot will incorporate the new pavement standards; a portion of the 21 parking lot will consist of pavers to increase the permeability of the parking lot; the remainder of 22 the lot will be paved with asphalt. There will be a total of 24 bicycle parking spaces provided, 23 15 of which will be enclosed, and at least nine fixed, exterior spaces. A trash enclosure will be 24 placed in the exterior of the site, which will provide screening for the trash dumpsters. The site 25 plan as presented is in compliance with the development standards as presented in section three 26 of the Land Use Code. Staff has provided a complete analysis of the Code requirements and how 27 the plan is in complete compliance. Let’s go back…go back…back…to seven? 28 Section 3.2.2(k)(1)(e) of the Land Use Code is about parking; parking is one of the key 29 concerns voiced in the neighborhood letters. We should be reminded that on-street parking 30 within walking distance of any college campus would be in short supply, especially during the 31 day. We should also be reminded that on East…on-street parking is a public right-of-way and is 32 available at no cost on a first come, first served basis. We care about the lack of parking in the 33 fraternity impacts to an already crowded condition. Our parking lot exceeds Code requirements 34 by two spaces. In addition, the owners have worked out an agreement with St. John’s Lutheran 35 Church, located one block to the east of this property, to allow for parking during fraternity 36 events. They are also considering designating spaces in their parking lot for fraternity use in 37 exchange for parking lot maintenance. Occupancy… 38 The applicant has requested a total maximum occupancy of 24 persons. The approval 39 placed a condition on the proposal to limit the building occupants to 18. This will ride with the 5 1 property for the life of the fraternity use. Now, normally, you would…we would look at the 2 occupancy as being a math problem, 5400 square feet would be 200 square feet per person…that 3 would be 27 occupants allowed in this house. We were asking for 24 and the condition is for 4 18…18 occupants. Next slide. 5 Now we’ve covered all of the obligations as required for review, as described in the Fort 6 Collins City Code. This project meets all Code requirements for approval; the Fort Collins 7 Planning Department agrees. There were four appeals to the Director’s decision to approve the 8 project with conditions. These appeals were brought before the Zoning Board of Appeals under 9 Division 2.11 of the Land Use Code. We received the appeal letters and read them carefully. 10 The issues raised have to do with the overall approval process for the project approval and 11 criteria under which the approval was made. Staff has provided a detailed analysis of how the 12 Land Use Code was applied in this project; we believe we have met the standards and have 13 complied with the Code, not only to the greatest extent possible, as required, but have met or 14 exceeded the requirements to the letter. The Director approved the application with three 15 conditions, as allowed under 3.5.1(j). The three conditions are related to occupancy and parking. 16 As we noted, the occupancy is limited to 18 persons, not only residential occupancy but also for 17 meetings. Parking requirements were increased to eight spaces from the six spaces required by 18 Code. The applicant has accepted these conditions. I think the neighborhood will see significant 19 improvement to the overall physical quality of the site. We request that you uphold the 20 Director’s decision. Thank you. 21 CHAIR BELLO: Thank you. 22 MS. FREDERICKSON: Do you have questions at this time or should I stand by? 23 CHAIR BELLO: So, staff…staff questions or Board questions? Okay. Thank you. 24 MR. BEALS: So, I’m going to go through this pretty quickly as most of this was covered 25 in the applicant’s presentation, and then we can go into the comments and questions. But, again, 26 we’re right on the corner of East Elizabeth and Remington. We’re in the NCB zone district, 27 which does allow for fraternity use. And, the NCB zone district stands for Neighborhood 28 Conservation Buffer district. So, it’s a district that helps buffer the commercial on the west side 29 along College from the residential in the NCM zone district on the east side of the zone district. 30 Here are some pictures of the house. This site plan is the 1978 site plan that was 31 approved, and again it showed eight parking spaces in the back. Going to the site plan presented 32 and…sorry, it’s a little washed out here on the Power Point…again, it’s showing eight parking 33 spaces. Really the changes to the site are to the parking area, they’re going to improve it with 34 surfacing and put in a trash enclosure, and they are going to put in the bike racks as required by 35 Code. The landscape plan…it’s a little better there…there are some tree removal happening, but 36 those trees are going to be mitigated with the new trees that will be planted. So, again, the 37 CDNS Director did approve the building permit to change the use of the fraternity, with the 6 1 conditions that the occupants are limited to 18, no fraternity meetings exceed 18 attendees, and 2 that the eight off-street parking spaces are provided as shown. And I’ll end the staff presentation 3 at this point. 4 CHAIR BELLO: Okay. 5 DEPUTY CITY ATTORNEY ECKMAN: Just to follow the order, do you have any 6 comments to make to the applicant’s presentation? 7 MR. BEALS: I do not have any additional comments to the applicant’s presentation. 8 CHAIR BELLO: Okay, so do we want to do Board discussion, Paul, before the public 9 testimony, or…? 10 DEPUTY CITY ATTORNEY ECKMAN: According to the order, we have the 11 applicant’s presentation and now the staff report, and I just asked if there was any staff response 12 to the applicant’s presentation and there was not, so now we would move on to public testimony. 13 CHAIR BELLO: Okay, is there anybody in the audience who’d like to speak for or 14 against this topic? Would you please raise your hand? Okay…I’d like to limit your testimony to 15 three minutes if possible. Do we have a timer on the podium? Okay. Would you please come 16 forward, state your name… 17 DEPUTY CITY ATTORNEY ECKMAN: How many minutes did you suggest? 18 CHAIR BELLO: Three minutes. 19 DEPUTY CITY ATTORNEY ECKMAN: How many? 20 CHAIR BELLO: Three. 21 DEPUTY CITY ATTORNEY ECKMAN: I would…I would suggest if we could give 22 each person five minutes, it would make for a better hearing. 23 CHAIR BELLO: Okay, five minutes. 24 MR. BEALS: There are two podiums, so we can alternate if you would like to line 25 up…both. 26 MS. ASHLEY MCGREW: Hello Boardmembers, my name is Ashley McGrew. I was 27 born at PVH, I married a Lambkin and I’ve been a CSU Ram for the last ten years. My 28 grandparents, Wayne and Shirley Linton, are the namesake of Linton Elementary. Fort Collins 29 will always be home, but the 200 block of East Elizabeth Street is where Aaron and I put down 30 roots. The unique character, beauty and demographics of this block created for us a rich sense of 31 community, and this is the community that we wanted to have when we purchased our home. 32 Our home, on the Historic Homes Tour last fall, is directly across the street from the beautiful 7 1 Tudor estate that we know as the Horsley House. I want to take just a moment to thank the 2 Zoning Board of Appeals for the opportunity to present today; it’s a privilege to engage in a 3 dialogue about the decision pertaining to 201 East Elizabeth Street. We, the appellants, represent 4 the collective voice of over a hundred neighbors and community members. You’ve received our 5 formal appeals, and in a moment a few vested individuals will provide you with the foundational 6 details from which these appeals arose. We will highlight the most salient points from these 7 documents, particularly pertaining to procedure, Code, enforcement, and community impact of 8 this decision. The appeal that Aaron and I submitted goes into great detail about the character of 9 this block. We cite important information from the Eastside Neighborhood Plan, sections 2.2.10 10 and 2.2.2, part one, and the Eastside and Westside Neighborhoods Character Study Strategy 11 Report. We also stress the importance of being good stewards of our historic properties, citing 12 the Eastside Neighborhood Plan and the consequences of sustained high-intensity use with 13 specific examples therein, for example 2.4.1. As you listen to the objective arguments of the 14 others, please let the important words that I speak now echo in your mind, from the Eastside 15 Neighborhood Plan in 1986, they stated that the policies included in the Plan have meaning for 16 the Eastside Neighborhood and great community only if they are implemented. So, please, today 17 let’s critically evaluate the information that we have at hand and be good stewards of these things 18 that we value most. 19 MS. JAMIE BAKER ROSKIE: Yes, thank you. My name is Jamie Baker Roskie. My 20 business address is Post Office Box 230 in Laporte. I am a Fort Collins native; I was born at 21 Poudre Valley Hospital. I recently returned and opened my own law practice. I’m an attorney 22 licensed in Colorado, Georgia and Virginia. I represent Tom and Cindy Laupa in this matter. 23 Tom and Cindy live at 1003 Remington, which is directly across the street from the subject 24 property. Just…since this my first time appearing before this Board, just as a way of 25 introduction, I will say that I have been a land use lawyer since 2001. I started practicing in 26 Washington, D.C. where I represented at a large commercial firm, developers and private 27 institutions. Subsequent to that, for ten years, I was the managing attorney of the land use clinic 28 at the University of Georgia law school, where I worked with local governments, land owners 29 and non-profits on land use and environmental and local government matters. 30 I was engaged to review the Fort Collins Code about this particular matter. I feel I’ve 31 done so repeatedly and carefully and I feel strongly that this application is not now, nor has it 32 been in any point in this process, in the proper permit procedure. We’ve heard the procedural 33 history of this case, and unfortunately, there are some problematic gaps in the Code that make 34 this particular case kind of a headache. I’ve consulted with a lot of local governments over the 35 years and I’ve written a lot of code, and I’m sympathetic to the fact that it’s very difficult to 36 write code that will cover every eventuality. However, I’m also very clear that it’s necessary to 37 work with a code as it’s written, not the code as we would like it to be. There’s no question that 38 staff has the discretion to interpret the Land Use Code; however, in my view, that discretion does 39 not extend to creating a permit process that does not otherwise exist. If this were simply 8 1 changing one permitted use to another, staff would have that authority; however, while a 2 fraternity use can be permitted in this district, that use does require the review of the Planning 3 and Zoning Board. It might seem like having this hearing cures that problem. If you have an 4 entirely new hearing before the ZBA, doesn’t that give folks a sufficient opportunity to have 5 their voices heard? As I have argued in the memorandum that I filed in this case, which I hope 6 that the Boardmembers have had an opportunity to read, this particular hearing does not cure our 7 problem. Although this is being styled a new hearing, and you did adopt the procedures in 8 2.2.7(c) this morning, the staff report instructs the BZA [sic] to hear this case based on the same 9 standard used by the Director, which is the abandonment provision in 3.8.25 of the Code. 10 However, there are several problems with that argument, which I’ve highlighted in my memo, 11 and I’d like to reiterate the two most problematic issues. Number one, the abandonment 12 provision requires that the abandoned use can be, quote, reoccupied only after the building and 13 tract of land, to the extent reasonably feasible, been brought into compliance with the standards 14 of Article 3 and Article 4. However, Article 4 clearly requires approval by the Planning and 15 Zoning Board, not by the ZBA. Planning and Zoning is the body with authority to place 16 conditions on this use under Article 3.5.1, not the staff or this body. Two, the abandonment 17 provision does not give the Director the authority to make findings of reasonable feasibility. In 18 fact, the provision gives no one that authority and it is therefore arguably unconstitutionally void 19 for its vagueness, which means that it does not properly protect Constitutional due process rights. 20 In my view, the only potentially applicable permitting process in the Code that could 21 properly allow a fraternity use on this site is the requirement to file a development plan under 22 Article 2. That would be the proper procedure for the applicant to show how the use of the site 23 does or does not meet the requirements of Article 3 and Article 4. This would also give the 24 affected neighbors the opportunity to present their concerns in the appropriate public forum and 25 receive answers from the proper body as to their concerns. P and Z could then appropriately 26 place conditions on the use to address those concerns. We therefore request that you return this 27 matter to staff so that the applicant can file through the correct permit procedure. Since this case 28 is about returning a fraternity use to the site for as long as anyone wishes to use it as a fraternity, 29 the actions taken in this case bind the property potentially forever. It is therefore proper to do 30 what the law requires in order to make this decision properly. Thank you for your time and 31 attention. 32 CHAIR BELLO: Thank you, next? 33 MR. JOSEPH PIESMAN: My name is Joseph Piesman, I live at 210 East Elizabeth 34 Street, so I look directly at the frat from our house and the fraternity brothers will be looking 35 directly into my bedroom windows…somewhat disturbing thought for perpetuity. First I’d like 36 to thank the Board for hearing our appeals; this is really the first time the neighborhood has had a 37 chance to express their concerns in a formal setting. We’ve lived on the 200 block of East 38 Elizabeth Street for 25 years now. We’ve raised a family there and have seen the block go 39 through good times and bad. I think we’re in a very good place right now. Of the ten properties 9 1 on the block, eight are owner-occupied, which is kind of a small miracle in this part of town, so 2 close to CSU. Those gains have been hard won and the community is a very tight-knit, very 3 close…we party together, we play poker together; my neighbors take my poker money a lot, I’m 4 not a very good poker player. We take great pride in our houses; at least three of them have been 5 on the historical home tour, and several are angling for being on the garden tour. And this sense 6 of community, I believe, is congruent with the Eastside Neighborhood Plan of 1986. I think 7 establishing a fraternity in the middle of this block threatens to put at risk that sense of 8 community feeling, not only with the people that currently live there, but if houses are sold, 9 families…owner-occupied families will have to think twice about living right across the street 10 from a fraternity in the future. The bad times, about twelve years ago, fifteen years ago…the 11 triangle fraternity at the 201 site suffered a series of disasters, abandoned the building, pipes 12 froze and it was kind of an empty hulk…215 right across the alley from it was condemned and 13 abandoned. But now, 215 has been fixed up and is a showpiece property. And, just let me 14 summarize by saying I think, looking at the Eastside Plan, I think there’s premium on owner- 15 occupied residential housing with families, and fraternity just doesn’t fit. Thank you very much. 16 CHAIR BELLO: What was your address Joseph? 17 MR. PIESMAN: What’s that? 18 CHAIR BELLO: What was your address? 19 MR. PIESMAN: 210. 20 CHAIR BELLO: Thank you. 21 MR. JOHN SNYDER: May I distribute…I have some references…can I give these to 22 you? That I’ll be referring to. So I might be short a copy. I’ll just introduce myself…if you 23 could, please refer to these occasionally…each one is just a little, like a sentence on each one is 24 all I want to say. My name is John Snyder; I own the property immediately next to 201 East 25 Elizabeth, 1008 Remington Street. I am protesting this use as a fraternity. I’ve owned my 26 property there for 20 years. The documents…what I’d like to focus on, and this has been largely 27 neglected I think, in this, is the Building Code considerations. Everybody keeps talking about 28 Land Use Codes, and I know Planning and Zoning largely deals with that, but this is a fraternity, 29 a super high impact use, and there are Building Code requirements for a fraternity regarding 30 safety issues. And these not only have not been met by this property, it has hardly even been 31 brought up. So, hopefully I’m not out of bounds by talking about Building Codes here. So, if 32 you would, look at the first page of what I submitted, that’s the original certificate of occupancy 33 that was granted for this fraternity in 1978. Immediately a problem pops up…the occupancy 34 group is called R1, but a fraternity is R2…clerical error? I don’t know, but at any rate, there’s 35 already a problem with this certificate of occupancy. Also, it groups together a…the fraternity, a 36 boarding house and a rooming house, which would not normally be granted under current 37 guidelines. On the next page, I have the International Building Code definition of what these 10 1 occupancy groups mean. Right there, it says R2 is the designation used for fraternities, not R1. 2 On the next page, and this is rather important, there is…this is from a Planning and Zoning 3 meeting, 1978…I hope everybody’s on that page…this is where the people who were applying 4 for the permit for converting this to a fraternity house, asked for certain variances on that use. If 5 you read through it…and I’ll just read a couple things. It was decided that, in lieu of a sprinkler 6 system, because the cost would be prohibitive, that the applicant did not have to put in what, at 7 that time, in 1978 was a minimum requirement for a high-occupancy dwelling. It was never 8 even brought into 1978 building codes. 9 There’s a series of building permits that have been pulled since then by the owner who 10 owned it previously; he purchased it in 2006. His name was Dennis Dowswell. This…I don’t 11 mean to be splitting hairs, but there’s a lot of inconsistencies here with this building permit. The 12 first permit that Mr. Dowswell pulled said that it will be owner occupied. Now it’s been 13 repeatedly said by the applicants on this that this has been a fraternity or a bed and breakfast; it 14 wasn’t, at least not officially, not legally…owner occupied building will be vacant. Next 15 building permit application on July of 2006 says he’s going to convert it to a bed and breakfast. 16 Next letter sent just a month or two later says, oh, I’ve changed my mind, it’s going to remain a 17 fraternity house; however, that’s just a letter, there’s no official documentation there. The next 18 letter of completion for some of the work that’s been pulled says that…this is a letter of 19 completion, that’s the large thing there…it says the work was performed by the owner and it will 20 be owner occupied after vacation. Then the smoking gun is, in 2007, an affidavit was filed by 21 the builder which stated that he is converting it to his own personal residence and it will remain 22 owner occupied. He verified that in 2013 with a meeting with the Assessor’s Office to try to 23 keep his taxes low. So, this is…the developer’s…on the next few pages have continually stated 24 that this is rooming house, it has been a rooming house, this is not that big of a change. But, no, 25 it isn’t. It has been a single-family residence for most of its life, including over the last at least 26 ten years. 27 I’m going to skip ahead because I’m going to run out of time…could I have maybe one 28 or two more minutes? I’ve got…there’s a pretty important conclusion I’d like to reach and the 29 other people didn’t use their full time. 30 CHAIR BELLO: Yeah, that’s fine. 31 MR. SNYDER: Okay, I’m sorry; this is a lot of stuff. Okay, I’ll skip over the occupancy 32 load, but there is some information if you read this; the occupancy loading of the building, 33 according to land use standards, is based on the finished square footage. The finished square 34 footage is…there’s a lot of conflict about what that is. An assessor determined the finished 35 square footage to be 3900. The applicants continue to state that it’s 5400. If you divide the 36 square footage allowed by fraternity members into that, you get very different numbers about 37 how many people could live there. I think at the very least, that ought to be cleared up. 11 1 But here, I think, is the most important thing. I had a long discussion with Sara 2 Carter…it’s the last few pages…this is an email from her. Probably you are familiar with Sara 3 Carter, she’s a plans analyst. And I expressed concern that, well, if they can open up a fraternity 4 there, it is zoned for it…well, why couldn’t somebody just buy the house next door and open up 5 a fraternity? On the third page of that, there’s a circled thing, and here’s what Sara Carter 6 said…a change of occupancy from a single dwelling to a dormitory, fraternity…she uses them 7 interchangeably…would be no small task. Many changes to the building to meet a more 8 restrictive occupancy would require…changes would include full commercial fire sprinkler 9 system, accessibility upgrades, electrical upgrades, a more restrictive egress design, structural 10 reinforcement for heavier floor loading requirements, and costly improvements. That’s what you 11 have to do to open up a fraternity house. This building hasn’t had any of that done. There’s…on 12 the next page I actually list some of the fire requirements for fraternities as required by the 13 International Building Code. 14 So, in the last object here…it’s a financial page…it’s the last page. I’m an investor in 15 real estate; I understand real estate. The idea, I think, is that, well, it’s not reasonable to require 16 these people to do these upgrades because it would cost too much. I think that’s really what it 17 boils down to. The…if you do a very simple analysis of what that building is worth, as an extra 18 occupancy rental with nine people in it, versus what it is worth as an extra occupancy…or as a 19 fraternity with 18 people in it, it will double in value. It’s simple numbers. The value now is six 20 hundred and something thousand dollars; it’ll be worth 1.3 million dollars as a fraternity. You 21 can just look at the income generated by it. It is not a hardship to require that maybe a hundred 22 thousand dollars be put in to bringing the building up to building codes as required for a 23 fraternity. It’s a safety consideration; if it isn’t done now, it’ll never be done, and it wasn’t done 24 in 1978, so please consider that. Thank you. 25 CHAIR BELLO: Thank you, next? 26 MR. PAUL MILEWSKI: I’ve got to strongly object to the extra time given to John; 27 we’re talking about procedures and the whole process of this…so, that’s part of what we’ve been 28 victims to, is procedural process. So absolutely our fellow speakers should have the same 29 amount of time. 30 MR. SNYDER: Well, could I comment that the last three speakers only used three 31 minutes… 32 CHAIR BELLO: Let’s not debate that, thanks. Okay, next please? 33 MR. JEFF ICENHOWER: I’m waiting for my five. My name is Jeff Icenhower… 34 CHAIR BELLO: Marcha, can you start the time please? 35 MR. MILEWSKI: Oh, oh, I’m sorry, I’m Paul Milewski…I’m the owner of 201. 12 1 CHAIR BELLO: Okay, sorry. Thank you. 2 MR. ICENHOWER: My name is Jeff Icenhower; I live at 2303 Flagstaff Place in Fort 3 Collins. I moved here a year ago from Texas and I am delighted to be back on the Front Range. 4 I live in Highlands Ranch in Denver prior to that. And I chose Fort Collins in part because I had 5 some flexibility in where I would live on the Front Range, and in particular because CSU is here. 6 If I had wanted to live someplace that didn’t have the vibrancy that a campus brings to a 7 community, I’d live in Loveland. So that you don’t have to take your maps and spread them out 8 completely, 2303 Flagstaff is up on the north side of town; I’m about two miles west of the 9 Budweiser facility. My interest in this is…I belonged to a fraternity in Missoula, Montana where 10 I went to school…the Sigma Chi fraternity, not this fraternity. However, when I read about it in 11 the papers, I noticed that there was a significant set of assumptions being made about fraternities. 12 And so I think it’s important to point out that Animal House was a movie; Animal House was 13 fiction. The reality of fraternities is that when you bring a group of young men together and they 14 commit themselves to a set of ideals, they’re held to a higher standard than students in other 15 types of housing, including the other types of multi-family housing in this particular area. They 16 are under greater scrutiny; they answer not only to themselves and to their national organization, 17 but they answer to an inter-fraternity council on the University for their behavior and for the way 18 they present themselves. 19 There’s an interesting amount…an almost ironic amount…of discrimination that I see 20 happening here, because there’s an assumption that as soon as these folks take possession of this 21 property as lessees, they’ll put a bar in the basement and they’ll put a keg out on the corner and 22 invite everybody from the campus to come over. And I think exactly the opposite is true; what 23 you’ll find is that these gentlemen will have much greater responsibilities put upon them because 24 of their affiliation with the University. 25 Now this area is zoned for a fraternity; there’s a fraternity in place, right now, a block 26 away. Had I been able to afford it, I would have lived in that neighborhood for that very reason. 27 It’s what I would expect to find; it’s what I think will add to the vibrancy of the neighborhood. 28 A lot of the testimony that I’ve heard here and previously has been about the negative impact 29 that this kind of housing would have on the neighborhood, and personally I believe it would be 30 exactly the opposite. I would also like to say that it’s been a really interesting process; I see 31 some new faces up here, I hope you all have fun doing it. It’s not been so interesting that I 32 would volunteer for what you’re putting your name in for. In an informal information session 33 following the last hearing, I volunteered some information that I’d like to share with you now on 34 the record, and that is…I think the City staff in particular has done a superb job of navigating 35 this process based on the way that I understand it. I’ve been greeted up at the front door with 36 information that I hadn’t asked for that helped explain both the process and the current status of 37 some of these hearings. And so I’m glad you’ve got attorneys to help you sort out the details of 38 who gets to decide what and where you have leeway, but as far as the way the City has 13 1 approached this and the staff that you all work with, I have nothing but positive things to say. 2 Thanks for your time. 3 CHAIR BELLO: Thank you. Is there anybody else who’d like to speak for or against 4 this? Marcha, are we good? Okay, thank you. 5 MR. MARK HAVENS: Ladies and gentlemen of the Board, thank you for your time. 6 My name is Mark Havens and I own the home bordering the proposal, directly on the east side. 7 I’m also here to speak towards 2.2.10 that allows the denial of the return of usage if it should 8 negatively impact the character of the neighborhood. I’ve always love the East Elizabeth Street 9 neighborhood, having attended Harris Elementary and Fort Collins High School. When the 10 opportunity arose to purchase a home in the neighborhood, and on what I deemed the most 11 magnificent block, I pounced. In due diligence, I contacted the Planning and Zoning Department 12 to check the status of the neighboring home at 201 East Elizabeth, and was told it had been 13 returned to a single-family residence. After meeting the elderly couple that were working to 14 renovate it and realizing that the property I was purchasing was the last derelict high-occupancy 15 rental home from prior to the you plus two regulation in the neighborhood, I was sold. I 16 immediately set about renovating my home back into a single-family home true to its original 17 character and representative of the other homes in my block. I prioritized my landscaping and 18 gardens as I am in the company of master gardeners on my block. This isn’t keeping up with the 19 Jones’, this is a neighborhood pride thing. There’s a palpable, mutual desire amongst my 20 neighbors to have the best neighborhood in town, and we do. I often refer to us as the Mountain 21 Avenue of the east side. Our shady lane is only occasionally interrupted by the sounds of the 22 church bells or the laughter from the playground at Harris. Even the ambulances shuttling to and 23 from PVH wait to use sirens until they’ve entered the buffer zone. This was not always the case 24 for our neighborhood. For many years, it was plagued with rentals of extraordinary occupancy 25 and nuisance properties. Then came the you plus two regulation. It has taken years of 26 enforcement, but you plus two works. By ensuring the density of the rental homes is equal to 27 that of the owner occupied homes, nuisance properties were eliminated and harmony amongst 28 the different types of properties was restored. The business buffer zone works in protecting us 29 from the hustle and bustle of College and the you plus two regulations work to ensure the 30 sanctity of our neighborhood. The Eastside Neighborhood Improvement Plan has worked; the 31 proposal stands to undo all of that. 32 The resale value of my home was never a concern as I renovated my home to be my 33 forever home; this has changed for me now. This Monday I got my first taste of my potential 34 future as the new dumpster for the facility was emptied at six AM. The view from my master 35 bedroom window and our of our future nursery will no longer be of the wooded backyard of a 36 historic single-family home, but rather of the dumpster enclosure and parking lot of a facility that 37 houses dozens of boys. The pounding of the dumpster on the pavement just feet from the 38 nursery window really drove that fact home. But could I move if I had to? A long-time local 39 realtor predicts a ten to twenty percent reduction in the sale price of my home should it border a 14 1 fraternity house. That equates to somewhere between $55,000 and $110,000 that I don’t have. 2 Simply put, this proposal will forever change the character of my beloved neighborhood, reduce 3 the value of our homes, and trap us next to an undesirable neighbor with little recourse. 4 I had to ask myself why…why would this be allowed? The Code uses the rationale of 5 prior usage, but that prior usage was before the you plus two, when our neighborhood was 6 plagued with high occupancy rentals. Why would we allow a return to that state? Also, the 7 triangle was a very small fraternity with only a handful of members at any given time. The 8 current proposal with dozens of occupants and fifty plus for meetings is nowhere close to the 9 prior usage of this property. An antiquated Code that allows the return to prior usage with only 10 minor approval could allow our historic homes to return to all types of prior usage from 11 throughout their storied years, and not all of them are desirable in our modern neighborhoods. 12 This is also not about the character of this first round of boys the applicant proposes to install, 13 rather this is about all future use of this lovely historic home and the effect on its neighborhood. 14 Not only is it a poor location for such a facility, it’s a poor facility choice for this extremely high 15 occupancy load. The fraternities that sit on the west side of campus at the termination of Laurel 16 Street are excellent examples of proper usage for this type of housing. They border other 17 fraternities and sororities and other CSU properties of similar usage. Most are twice or three 18 times as large in size, yet house a comparable number of members as this proposal. They feature 19 large, commercial kitchens and pull-throughs to allow for the large delivery trucks required to 20 house such a large number of occupants. Instead of being a nuisance in their neighborhood, they 21 have created a supportive one of their own. Please reconsider this proposed return to prior 22 usage; it’s extreme occupancy load and the effects on parking, noise, home values and general 23 neighborhood character are negatively impactful on our Mountain Avenue of the east. Let us not 24 undo the great strides we’ve made in our neighborhood improvement in Fort Collins. Thank you 25 for your time. 26 CHAIR BELLO: Thank you. Good? Okay, thank you. 27 MS. LISA MORAVAN: Good morning, I’m Lisa Moravan and I live at 220 East 28 Elizabeth Street. I’m appealing the change of use of 201 East Elizabeth to a high density use as a 29 fraternity. This change is in conflict with the existing Eastside Neighborhood Plan which does 30 not appear to have been taken into full consideration when the recent building permit was 31 approved. As you know, the Eastside Neighborhood Plan was developed with input from a 32 diverse set of community stakeholders and City staff. It is stated…its primary purpose is to help 33 preserve and enhance the existing quality of life in the neighborhood. Over the years, we 34 residents of the 200 block of East Elizabeth, have taken the goals and the vision laid out in this 35 plan to heart. Instead of letting it decline, we have worked hard to preserve and revitalize our 36 block, investing our time, money and effort into our homes, our yards, and our community, thus 37 enhancing both the character and the quality in the neighborhood as a whole. The change of use 38 of 201 East Elizabeth does not adequately address how our investment in time, money and 39 community would be preserved. The Eastside Plan also states, for the buffer area, it is 15 1 recognized that as with any existing neighborhood, unique and specific circumstances affecting 2 certain properties will require special consideration to protect the interests of the neighborhood. 3 It does not appear that special consideration was adequately made by the City staff to take into 4 account the specific and unique nature of the area surrounding the 200 block of East Elizabeth. 5 In addition, from Section 3.2.1, paragraph 2.7 of the Plan, if elements of the proposal are not 6 consistent with the policies of the Eastside Neighborhood Plan, does the proposal make 7 substantial positive contributions to the neighborhood that offset its shortcomings. As far as we 8 are aware, the proposal by the neighbors of the 201 East Elizabeth has not addressed this. It is 9 not clear how change in the use of the property as a fraternity, a high density use in a low density 10 area, would make a positive contribution to our neighborhood. 11 Another area of concern we have as neighbors is enforcement. If limitations on 12 occupancy, use, parking, et cetera, are placed on 201, we are unclear how and by whom these 13 conditions will be enforced. It is also unclear what limitations and rules are currently in effect 14 right now as the status of 201 is being decided. For example, currently we are noticing that it 15 appears tenants are beginning to take up residency in the home before meeting the parking 16 requirements that were spelled out in the current building permit under discussion today. Please 17 clarify the standard in which the owner is required to follow in order to meet your requirements 18 and your standards. Finally, please note that none of what we discussed today is meaningful if it 19 cannot be reinforced…excuse me, enforced in a reasonable manner. Therefore, please clarify 20 when what is decided today goes into effect and how it will be enforced and by whom. Thank 21 you for your time and consideration. 22 CHAIR BELLO: Thank you, anybody else? 23 MR. MILEWSKI: Sorry for the improper introduction…Paul Milewski, the owner of 201 24 Elizabeth. I realize that victim is kind of a harsh word, a word I don’t like; however, that’s what 25 this feels like. When this started out as a minor amendment…that’s what we were told prior to 26 purchasing this property. We weren’t looking to buy a home; we knew all along that there was a 27 shortage in affordable housing in Fort Collins, and particularly for fraternities and sororities. So, 28 not only on one occasion, but two occasions, we went down to the City of Fort Collins…it was 29 only to be a minor amendment and since then, it’s pretty much taken on a life of its own. I am 30 empathetic with the neighbors that live there with their homes; that’s the very reason we reached 31 out to the neighbors when we purchased this property. We did a neighborhood walk-through, we 32 talked to all the immediate neighbors that were home and heard their concerns, let them know 33 that we were there to fix the property up. This property had been run down, and that’s our 34 intentions, and it’s…when we’re done, it’s going to be one of the nicest looking properties in that 35 neighborhood. 36 So, the monetary part of this, going through the process that we didn’t foresee going 37 through, has been horrific. And it’s interesting to me…what I feel is really happening is, the 16 1 neighbors are trying to smoke us out, financially, and hope we’ll go away, which I have no 2 intentions of doing. 3 The hypocrisy of this is unbelievable to me. John Snyder who got up here and spoke is 4 one of the leading problems of the parking in the neighborhood. He rents primarily to college 5 students himself and I have pictures of his cars parking in the alleyway almost every day, trash 6 dumpsters not up to code, other things are not up to code. So the hypocrisy of this is pretty hard 7 to take. Those are the main issues I want to address…and, just…we have followed procedure all 8 along, anything that’s been asked of the City, and it just seems like it’s a never-ending process 9 and I just…I don’t think it’s fair. And it’s not fair to Julie…we’ve got a big part of our life 10 savings into this and there’s another side to the story. 11 As far as the fraternity guys…what a wonderful, amazing group of guys. They…first 12 snow storm, they came to us and said, hey, let’s go shovel all the neighbors’ driveways…let’s 13 just try to be good neighbors and start off on the right foot. They got out and did that. Not a 14 single thank you from anybody, but they got out and did it. The parking problem that everyone 15 is concerned about…we’re entitled to have the parking that we’re entitled to through code, which 16 we exceed. But we took a step beyond that and went to the church and worked out a parking 17 solution when they have their fraternity meetings, not parties, meetings. To take it a step further, 18 we’re in process now of having permanent parking in there Monday through Friday. We can’t 19 on Saturdays and Sundays with the church, for obvious reasons, but it is about a 95% chance that 20 we’re going to work something out where we’re going to have an additional ten spaces with the 21 church for the fraternity brothers to park there as well. 22 So, all the neighborhood concerns…we have addressed every single one of them. And, 23 so I just want to let you know we’re following procedure in every way; we think we’re following 24 code, and the process is…there’s a huge monetary element to this that I think no one talks about, 25 and that’s the loss that Julie and I have. And I would like for you guys to consider that…that this 26 process…and, we’ve already, by limiting from 24 to 18, the amount of income that we had is 27 significantly reduced. So, we’re bending along and trying to work with the neighbors and will 28 continue to do so even after this process, even though there’s some hardships and hard feelings, 29 it can be water under the bridge, we can work well with the neighbors. So, I just want to let you 30 know that’s where Julie and I stand and thank you for your consideration. 31 CHAIR BELLO: Thank you. Anybody else in the audience like to speak for or against 32 this? 33 DEPUTY CITY ATTORNEY ECKMAN: Mr. Chair? I had assumed, since Paul got up, 34 that the…the public testimony was closed and that was his applicant response. Is that not 35 correct? 36 CHAIR BELLO: No, I thought that was public… 17 1 DEPUTY CITY ATTORNEY ECKMAN: That’s still public? 2 CHAIR BELLO: I believed it was. 3 DEPUTY CITY ATTORNEY ECKMAN: Well then… 4 CHAIR BELLO: So we still have to do the applicant response? 5 DEPUTY CITY ATTORNEY ECKMAN: The applicant response to public testimony 6 and then move on to the staff response. 7 CHAIR BELLO: Correct. So is anybody else in the audience for public response? Okay, 8 we’ll close the public response and like to have the applicant response please. 9 MS. FREDERICKSON: I just have a few things to mention. Fraternities have been in 10 the…have been in the news a lot lately, and yeah, you know, they have…they have a poor 11 reputation sometimes and it’s because when there’s poor behavior and poor decisions, there’s a 12 bad reputation. But I would submit that a reputation…we should not get the term reputation and 13 character confused. And I would submit that, who’s to say that this fraternity house will change 14 the character of the neighborhood. The character has to do with how nice it will look, how well 15 it will be kept up. But this is a land use decision…it’s been a land use decision from the very 16 beginning. And, a land use decision isn’t based on whether or not it’ll be maintained, it’s not 17 based on whether or not it’ll be able to be enforced, whether or not there’ll be a breaking of 18 laws…it has nothing to do with those things. And though we really understand where the 19 neighborhood is coming from and we feel for them, I honestly don’t believe that their fears will 20 be realized here. And I would submit to you that this is a land use decision, and this applicant 21 has done their best to meet all of the Land Use Codes. And I would submit that even if it did go 22 to Planning and Zoning, it would be approvable, very much approvable, because they’ve met all 23 of the codes in every way. And so, it’s not a building permit decision…it has to do with land 24 use. And I’m just…I’m just frustrated that land use has been confused with the reputation of a 25 certain demographic of people and how these people are characterized, and I don’t think that’s 26 fair. Beyond that, that’s all I really wanted to say…I’m open to questions or comments. Thank 27 you so much for listening. 28 CHAIR BELLO: Thank you. Okay…the staff response then? 29 MR. BEALS: I would just add that this process has been long, and we have reviewed it as 30 City staff…the Director has called all the City staff together to review this process and, with the 31 City Attorney, we reviewed the process that they are in at this point, and feel it’s appropriate 32 process. Again, as the staff report pointed out, we do believe that they are meeting the Land Use 33 Code standards in which we have to review the application. Again, there was some mention of 34 building code…not a part of this review; this is a Land Use Code review. There was a mention 35 of plans that were approved, Eastside/Westside Plans…when we do the application review, we 18 1 look at the Land Use Code, not necessarily the Plans of the neighborhood. And I just would 2 close with that. I’ll put it out for questions. 3 DEPUTY CITY ATTORNEY ECKMAN: So now we’re down to the point where the 4 Board can ask questions of anyone in the audience, the applicant, the public, the staff, and have a 5 discourse before you go into your motion. 6 CHAIR BELLO: Thank you. So, Board discussion… 7 BOARDMEMBER BEAR: I have questions for staff. Okay, so is the land use decision 8 based on the lot or the lot plus the improvements? 9 MR. BEALS: The land use decision was based on the site plan that was submitted with 10 the building application; so, it was based on those improvements that were shown on that site 11 plan and the property. 12 BOARDMEMBER BEAR: So, the lot plus the improvement. 13 MR. BEALS: …that were shown. 14 BOARDMEMBER BEAR: Okay. And then, as one of the speakers mentioned, is there 15 an option under the filing of the change use permit to deny the change use based on the impact to 16 the neighborhood. 17 DEPUTY CITY ATTORNEY ECKMAN: Yes, the staff report shows the issues that at 18 least the staff felt were applicable to this particular project, and maybe this merits some 19 discussion of what Ms. Roskie brought up by way of procedural objections to this very hearing. 20 Her suggestion was that you stop the hearing and require the matter to go back through the 21 Planning and Zoning Board process. Lawyers disagree…that’s the way they make their 22 living…so she and I disagree. The Land Use Code lists fraternities as a permitted use in this 23 zone district. If it were a new fraternity, having never existed as a fraternity ever before, then I 24 believe…and anyone that disagrees, and I know the Director is here as well…that that would be 25 a matter that would come before the Planning and Zoning Board for approval. But, the 26 issue…and I know I’ve heard it said that fraternities are not an appropriate use in this area 27 because of this neighborhood. That should be a zone change, a use list change in that zone 28 district, or something to that effect. Because, by reason of it being listed as a permitted use, it’s 29 presumed, under the Code, that it’s okay to have fraternities in that zone district. But then you 30 have to go through the criteria of the Land Use Code. 31 In this particular case, the reason she and I disagree is because…if, arguably, there’s a 32 conflict…if the Code says, well, P and Z reviews fraternities, and then the Code says in 3.8.25 33 that the review of a use that has been abandoned…and there’s no question it’s been abandoned, I 34 think the County Assessor’s records show that…if it’s been abandoned, there is a special criteria 35 that you look at, to the extent reasonably feasible, does it comply with Article 3 and Article 4 19 1 applicable standards. So, our conflict provisions in 1.7.2 of the Land Use Code says that the 2 most specific provision controls over the more general provision. So, the general provision is, 3 fraternities are permitted as a use in that zone. If they’re brand new, they come through the P 4 and Z Board, but specifically for abandoned uses that are sought to be started up again, you look 5 at 3.8.25 and you go through those criteria. That’s what the Director did. One could argue, well, 6 it wasn’t the Director’s decision, somebody else should have decided that. But, we made the 7 decision that since it was silent, we would use the Director as the decision maker and that would 8 be a springboard to the possibility of you ultimately deciding this, which is what we’re doing 9 today, which gives everyone a chance for a hearing, everyone a chance to speak to you as a 10 Board for you to decide the question since it’s been appealed to you. So, that’s my view on how 11 it came to be here. 12 There was an argument that the Land Use Code is unconstitutionally vague because, who 13 knows what ‘to the extent reasonably feasible’ means. That term is defined with some 14 particularity in the definition section of the Land Use Code, which is Article 5. I guess I don’t 15 know if I answered your question, but I rambled on for some there…but I’ll stop there and if 16 there are more questions, I’ll be happy to answer those as well. 17 BOARDMEMBER BEAR: I do have…if I could keep going. The appraisal document 18 showed and identified and I had noticed this previously, non-conforming bedrooms. But, what 19 does that mean…what does that mean? 20 MR. BEALS: It is my understanding the non-conforming bedroom is more of a real 21 estate term, saying that there’s no closet in that room. 22 BOARDMEMBER BEAR: So, the City has determined that the bedrooms, as they exist, 23 meet standards. Would that be a fair statement? 24 MR. BEALS: Right. 25 BOARDMEMBER BEAR: That is a fair statement…that the City has established that the 26 bedrooms in the property meet City standards. 27 MR. BEALS: They meet the standards that they were originally constructed under. 28 When they were originally built, they met those standards. 29 BOARDMEMBER BEAR: In 1924? 30 MR. BEALS: 1924, 1978… 31 BOARDMEMBER BEAR: So in 1978 they met the standards? So the number of 32 bedrooms identified in 1978 met the standards…right? And, I’m sorry, do we know the number 33 of bedrooms identified in 1978? 20 1 MR. BEALS: The building permit is vague on the number of bedrooms. It does talk 2 about the approval of basement escape windows, so we believe there were bedrooms established 3 at that time in the basement also. 4 BOARDMEMBER BEAR: And so…so the basement square footage that’s identified as 5 finished, was that based on 1978? 6 MR. BEALS: That’s our understanding, yes. 7 BOARDMEMBER BEAR: So the number of bedrooms with adequate escape windows 8 would have been based on the finished square footage in 1978? I’m just trying to understand 9 what I’ve got to work with here as far as the building itself. 10 MR. BEALS: Yes. 11 BOARDMEMBER BEAR: Okay, thank you. 12 DEPUTY CITY ATTORNEY ECKMAN: Now I remember what your question was and 13 I answered it rather vaguely. 14 BOARDMEMBER BEAR: You said yes. 15 DEPUTY CITY ATTORNEY ECKMAN: I said yes and I never said how come. 16 UNIDENTIFIED BOARDMEMBER: But you answered others we didn’t ask… 17 DEPUTY CITY ATTORNEY ECKMAN: A lot of other things that were on my mind, 18 but not on yours. 19 BOARDMEMBER BEAR: Thank you so much. 20 DEPUTY CITY ATTORNEY ECKMAN: The answer…the embellishment of that 21 answer is that in your staff report on page three, I think that the compatibility question that you 22 asked about is addressed in section 3.5.1 of the Land Use Code, particularly paragraph J about 23 operational compatibility. It’s not about use compatibility because it’s a permitted use, but it 24 does deal with compatibility with the neighborhood. And I’ll just read it…this section allows for 25 conditions to be placed on the operational or physical standards of a proposal as it relates to 26 compatibility with existing neighborhoods and uses. And then there’s a list, and one of the 27 issues is off-street parking, and there are other…but that list is non-inclusive; it includes, among 28 other things, those things and then more that might come to the mind of the members of the 29 Board. But that’s how you’d have to address operational or physical compatibility with the 30 neighborhood. 31 BOARDMEMBER BEAR: Okay, thank you. 21 1 CHAIR BELLO: Okay, I’ve got a question. This is a Land Use Code issue, this is not a 2 Building Code issue, so…if the Land Use Code or this appeal is approved…or upheld…will the 3 building have to go through Building Department review for code compliance issues? 4 MR. BEALS: Not at this time unless they are proposing any alterations that would 5 require additional building permits. 6 CHAIR BELLO: Okay, so…the reason I ask is, there’s a similar situation I believe, 7 in…on Lake Street that has a fraternity, that if that fraternity were vacant for over a year, they 8 would be required to bring the building up to code. Does that not apply to this? 9 MR. BEALS: That one is a little different as the Lake Street was a non-conforming use, 10 so it was not a permitted use… 11 CHAIR BELLO: Okay, it was a non-conforming use, that’s right. 12 MR. BEALS: …in the zone district. 13 CHAIR BELLO: Okay, so this is a conforming use based on the NCB zone district? 14 MR. BEALS: Right. 15 CHAIR BELLO: Okay, yeah, that is a difference. Okay…any other discussion? 16 BOARDMEMBER SHUFF: I had a question. With respect to the abandonment period, 17 what is the timeframe? So if there was research done that in 1930, there was a use that’s 18 conforming within a zoning district, it was as that use for two years and now somebody wants to 19 reinstate that, would that fall under the abandonment period? And is…I guess, is there a length 20 of period… 21 MR. BEALS: No, there’s not a length of period…yes, the answer is yes. You know, if it 22 was established in 1930 for two years and went away and it’s still a permitted use in the current 23 zone district, then it could be re-established. 24 BOARDMEMBER SHUFF: And so it would be re-established under this 3.8.25? 25 MR. BEALS: Correct. 26 BOARDMEMBER SHUFF: And so basically everything would just need to be brought 27 up to current codes through the Land Use Code, Building Code requirements… 28 MR. BEALS: To the Land Use Code… 29 BOARDMEMBER SHUFF: …and could be reinstated at that point. So, I guess I’m a 30 little confused. So, based on…so based on division 4.9, it is…it’s an acceptable use, but under P 31 and Z review if it’s a new use, correct? If it’s something that has not been… 22 1 MR. BEALS: If it’s listed as a permitted use in the zone district. 2 BOARDMEMBER SHUFF: Right. 3 MR. BEALS: And if it was a new use that was never established on the property, then it 4 would go to a Type II review, which would be the Planning and Zoning Board. 5 BOARDMEMBER SHUFF: So at what point…I mean…so, currently you have to have 6 an overall development plan, but is it because it’s an abandoned use and that use occurred prior 7 to those code requirements that this property isn’t required to have a development plan that’s 8 accepted and gone through the process in order to reinstate it? 9 DEPUTY CITY ATTORNEY ECKMAN: Well, first, you don’t have to have an overall 10 development plan unless you’re going to develop the project in phases and a small lot like this 11 wouldn’t be developed in phases. You have to have a project development plan and a final plan 12 if it’s a new use that’s a start-up use, even if it’s a permitted use in the zone. But in this case, and I’ll just read 3.8.25, if after June 25 th 13 , 1999…we’re after that…active operations are not carried 14 on in a permitted use during a period of twelve consecutive months, the building or other 15 structure or tract…where such permitted use…it’s a permitted use, remember…previously 16 existed, and it did, shall thereafter be reoccupied and used only after the building or other 17 structure as well as the tract of land upon which the building or other structure is located have, to 18 the extent reasonably feasible, been brought into compliance with the applicable general 19 development standards of Article 3 and applicable zone district standards of Article 4. So, that’s 20 the rule under which we are…that’s the rule under which Ms. Kadrich made her decision which 21 has been appealed to you. 22 BOARDMEMBER SHUFF: So, could it be construed that, as part of bringing it into 23 those current standards, you would have to go through a P and Z review? 24 DEPUTY CITY ATTORNEY ECKMAN: That decision was to be made by someone and 25 the Code is silent…it’s not going to be silent much longer, we’re going to add language into the 26 Code that says that’s a Director’s decision. We decided it was logically a Director’s decision so 27 that there’d be an appeal route to you, which is where we got. And so now it’s your decision; it’s 28 not a P and Z Board decision, in my opinion. 29 BOARDMEMBER LONG: You got right where I was going… 30 BOARDMEMBER SHUFF: So it seems that that’s really the question… 31 BOARDMEMBER LONG: And she got right where I was going…I can usually count on 32 Heidi to get there. It’s somewhat circular because it says, Article 4, which again states P and 33 Z…okay we go to the non-described Director’s decision. So what…what criteria…but not only 34 does it not describe who’s going to make that decision, it doesn’t list any criteria…and we 23 1 don’t…it’s not a criticism, but we don’t have any documentation of what criteria she used to 2 make that decision. We just keep hearing, that was the decision that was made, right? 3 DEPUTY CITY ATTORNEY ECKMAN: No, you have some criteria that the staff 4 included in the staff report that they thought was applicable, and I don’t know if there are any 5 Article 4 criteria listed there; I don’t see any. 6 BOARDMEMBER LONG: Well it just says it needs to go to P and Z and not us. 7 DEPUTY CITY ATTORNEY ECKMAN: But there are development standards…I see 8 one, 4.9, 4.9(a) and (b), (e)…there are development standards contained in Article 4 that go 9 beyond the use list. First, you have your use list, who reviews, and then you have a section on 10 individual zone district development standards, and there are a couple there that the staff listed as 11 being applicable. They’re on page two of your staff report. 12 CHAIR BELLO: So your concern is whether…I mean the way I’m looking at this is that 13 this is an allowed use in the zone. The fact that the property was abandoned…that’s the issue as 14 to who can make the decision, whether it can be reinstated. 15 BOARDMEMBER SHUFF: Right, who can make the decision whether it can be 16 reinstated and under what provisions and what kind of review it needs to go through. So it says 17 it needs to…needs to be brought into compliance with the applicable general development 18 standards contained in Article 3 and the applicable district standards contained in Article 4, 19 which states, the following uses are permitted subject to Planning and Zoning review. I guess 20 I’m just a little confused as to, you know, where do you draw the line where this is a prior use 21 and it can be accepted and do you then…I mean, how do you ignore the fact that the Code states 22 that the uses are permitted, I understand that, but subject to Planning and Zoning Board review. I 23 mean can you skip over the P and Z review because it’s a prior…it’s a prior use that was 24 abandoned. I don’t know, Paul, could you help explain that, maybe there’s something I’m not 25 seeing. 26 DEPUTY CITY ATTORNEY ECKMAN: Well the Code was silent on who does that 27 review. It seemed to be the most reasonable approach, rational approach, that the Director would 28 make that decision, since it doesn’t say it goes to the Planning and Zoning Board, and that was a 29 decision that was made in this case, which brought us to you because of 2.11 which says that you 30 can review decisions…certain decisions of the Director. And, ultimately, I’m fairly certain that 31 this decision will be made by the City Council. But, that’s the next appeal I would think. 32 BOARDMEMBER SHUFF: So how is the Code silent, if it says that the following uses 33 are permitted, subject to P and Z review, and it says under the abandonment period then, it needs 34 to be brought into compliance with these Articles which state it goes to P and Z. That’s where 35 my confusion is. 24 1 DEPUTY CITY ATTORNEY ECKMAN: Well, and that’s why I mentioned the conflict 2 provisions, because I think…the conflict provision says that the most specific regulation controls 3 over the more general, and I think this particular section dealing with abandoned uses and 4 restarting of uses that previously existed is quite specific. So, I think we were limited to looking 5 at that section and saying, okay, that’s the section that governs because it’s the most specific to a 6 restart of a previously existing permitted use. And as a restart of a previously existing permitted 7 use, who is going to decide that? And it just made sense that the Director would decide it and 8 that if the Director’s decision is not acceptable, it would get appealed to this Board. That’s how 9 it came to this Board. 10 CHAIR BELLO: So is it the City’s position that it met the criteria of Article 4, being 11 reviewed by P and Z, in its original application to become a fraternity and therefore it met that 12 criteria? 13 DEPUTY CITY ATTORNEY ECKMAN: I don’t know when that application happened 14 or… 15 MR. BEALS: It was originally approved, established as a use, and it was abandoned for 16 twelve months, and this Land Use Code says, when a use was established legally, which it was, 17 and abandoned for twelve months, that it can be re-established if it’s a listed, permitted use in the 18 zone district, to the criteria Paul’s already read. 19 CHAIR BELLO: Okay, so the initial acceptance of it as fraternity, regardless of how that 20 happened…from the standpoint of the abandonment, it was a permitted use. That’s the position 21 of the City? 22 MR. BEALS: It was a legally established use, it was abandoned for twelve months, and 23 then now they want to reinstate that use…this Land Use Code section allows for that. 24 CHAIR BELLO: Say it again? 25 MR. BEALS: Land Use Code 3.8.25 allows for that. 26 BOARDMEMBER LONG: But there’s a lot of properties that have…I mean we could go 27 through the history…and that have old, grandfathered uses and I think…I mean I understand 28 what the neighbors…why they’re confused and I mean, Paul said it, he called the City and…I’ve 29 had this happen, I call all the time through my career and they say well, that use has been 30 abandoned. But in general we make the assumption it just can’t be re-established through an 31 administrative process. I mean it’s always been most of the public’s perception that if it’s an 32 abandoned use, you can’t just go in and, you know, pay a hundred dollars for a change in use and 33 be done. I mean…more people should be using it if that’s the case. 34 BOARDMEMBER STOCKOVER: Is that an abandoned use that’s non-conforming? 35 Which I think is typically the case. 25 1 BOARDMEMBER LONG: Well, but there’s both…I mean I have to look up every 2 property I do, so I…you know, I see all types. 3 BOARDMEMBER SHUFF: I think that is a really critical point though, non-conforming 4 versus conforming abandoned uses are two very different things. So if something is allowed 5 within that zone district, then, you know, I can see the rationale as far as being able to reinstate it 6 because it was a previous use. 7 BOARDMEMBER LONG: What was the previous zoning there in ’78? 8 DEPUTY CITY ATTORNEY ECKMAN: That’s even before my time and I didn’t know 9 anything was before my time. 10 BOARDMEMBER LONG: Well…and I mean that gets to one of my other questions I 11 put in my notes is it says…where such a permitted use. And how do we know it was a permitted 12 use? When I go…and I did go through all the material and I don’t know where we confirmed 13 that was actually…I mean just because it was existing, how do we know it was permitted? If it 14 was R2, was it permitted under R2 zoning? 15 CHAIR BELLO: But it’s permitted within the current zoning district. 16 BOARDMEMBER BEAR: Well, this certificate of occupancy right here says that it was 17 approved as R1, with the use zone of BH. So, is this…is this a valid, most recent document? 18 MR. BEALS: That’s the current certificate of occupancy for the building. 19 BOARDMEMBER BEAR: Thank you. 20 MR. BEALS: The R1s and R2s…again, that’s Building Code. The Land Use Code…in 21 1929, the property was originally zoned B for residence, which allowed for fraternity. In 1965, it 22 was rezoned to RH which is high-density residential, which also allowed for a fraternity. And 23 then in 1991 is when it was zoned NCB. 24 BOARDMEMBER LONG: And that really was one of my questions when I read through 25 this, is do we have a history that it would have been approved…yeah. 26 BOARDMEMBER SHUFF: Well it would have had to be a permitted use if they got a 27 building permit for it, I assume. 28 BOARDMEMBER LONG: It would have been a lot easier back then. 29 BOARDMEMBER SHUFF: I’m sure zoning laws were much different then, but the fact 30 that they had a building permit implies that it would have been a permitted use at that time, so… 31 CHAIR BELLO: What I’m struggling with here is that the opponents of this appear to be 32 making an argument that this is not an allowed use for this site because of the neighboring uses. 26 1 And I’m struggling with that because the zoning district says it is an allowed use; it’s a buffer 2 zone between the commercial along Harmony…I mean along College, and the single-family 3 residences to the east of that. So, from that standpoint, if the City and the staff has made the 4 determination that the Director is the right person to make this decision, then it becomes a land 5 use issue of is this a proper use for that property. And, according to the zone district, it is. And 6 I’m struggling with why we’re arguing about building code issues when this is really a land use 7 issue and not a building code issue, because I think that seems to be a lot of the concern here. 8 BOARDMEMBER STOCKOVER: What I’m hearing is they’re arguing compatibility. 9 I’m hearing they’re arguing that we have the authority to say it is not compatible. 10 CHAIR BELLO: But the zone district says it’s a proper use for that site, and it’s a 11 transitional use from the commercial of College Avenue, as I said, to the residential. It’s a 12 transitional use. So, from that standpoint, compatibility…a fraternity is considered one of the 13 compatible uses for that transition. 14 BOARDMEMBER STOCKOVER: Operational compatibility…the key word is 15 operational. 16 CHAIR BELLO: I don’t know what that means. 17 DEPUTY CITY ATTORNEY ECKMAN: Yes, that’s the Code language I mentioned in 18 3.5.1(j), which is operational or physical compatibility, which is probably why the Director…and 19 the Director is here, you can question her if you want…why she decided that eighteen was the 20 limit. I think it was because of operational compatibility criteria. 21 CHAIR BELLO: Okay. 22 BOARDMEMBER SHUFF: Is there an appropriate time to ask the Director to step up 23 and just kind of explain the… 24 DEPUTY CITY ATTORNEY ECKMAN: You may do that. 25 BOARDMEMBER SHUFF: …thought process. 26 MS. LAURIE KADRICH: Good morning, I’m Laurie Kadrich and I’m the Director for 27 Community Development and Neighborhood Services, and I’m happy to answer any questions 28 that you might have. 29 BOARDMEMBER SHUFF: Thank you. I wonder, could you just provide just a brief 30 overview as far as how you came to the conclusion of the fact that this would be…this would be 31 the appropriate way to move forward with this case and what… I guess what kind of decisions 32 led up to that. 27 1 MS. KADRICH: It…this decision was originally, as mentioned earlier, set for a Planning 2 and Zoning Board hearing under a minor amendment process. And the reason it was set for the 3 Planning and Zoning Board is that it is the discretion of the Director as to whether a minor 4 amendment goes to the Planning and Zoning Board or has an administrative decision. And in 5 this case, we had heard from neighbors that they had some concerns, as they have expressed 6 today, so it seemed like the right avenue for the hearing would be before the Planning and 7 Zoning Board. When we were preparing for the hearing, on the night of the hearing, we received 8 additional information that caused a question about whether it should have been a minor 9 amendment process or not. And as we discussed it with staff and legal, we learned that the site 10 plan that was shown earlier was not part of a previously approved plan, so there was no 11 amendment to be made of a plan. And that caused a question about, then, the minor amendment 12 process could not be the right way. So, where was the next most applicable code that applied to 13 this specific circumstance? And that’s the code that has been presented by staff today and is in 14 your staff report. 15 Once we got to that process, then we looked at all the information that we had from the 16 applicant. We also looked at the information that we had received from neighbors, because that 17 particular portion of the code did allow us to look at operational compatibility. Some of the 18 things that I took into consideration was the number of bedrooms that were in the residence. 19 There are nine bedrooms in the residence according to the site plan. It seemed reasonable to me 20 that there could be two occupants for each one of those bedrooms for the size of the facility. In 21 addition to that, I was looking at what would be compatible from an operational standpoint 22 relative to the activities of this unit. And in my opinion, the request to have 60 members attend a 23 weekly meeting was not reasonable from an operational standpoint to the neighborhood. Hence 24 the limit on the number of occupants, which were allowed at 18, then could hold a meeting or a 25 gathering at that residence but not to exceed that. So that was kind of the reasoning that we 26 looked at, and that I used to make those operational limitations or conditions on issuing the 27 permit. 28 BOARDMEMBER SHUFF: So you had mentioned that…so originally you were 29 planning to go through a minor amendment process and then information came in that the site 30 plan you had...or they were using, was not an approved site plan, which is what would trigger a 31 minor amendment process, correct? 32 MS. KADRICH: So let me back up on that, and Paul may want to jump in as well. When 33 we took the site plan from the file, we believe that that site plan was part of an overall 34 planned…project plan, that had gone to the Planning and Zoning Board and had been approved 35 through a Board process. When that happens, then you can amend that at a later time. What we 36 learned later was that that particular site plan was only part of the building permit that was issued 37 at the time, and so there had not been another process, which is an allowed…it’s a proper process 38 for that time. 28 1 BOARDMEMBER SHUFF: Great, thanks for that clarification. 2 CHAIR BELLO: Can I ask your rationale for fraternities and looking at two persons per 3 bedroom…in a fraternity, that’s not like a residence that a husband and wife would be typically 4 in a bedroom, so how did you come to that two? 5 MS. KADRICH: The other factor that I used in looking at that was the square footage per 6 person for the unit. And I looked at the variety of ways that we apply square footage, and so that 7 was another factor that I used to get to the two rather than a greater number. 8 CHAIR BELLO: Okay, thank you. 9 BOARDMEMBER STOCKOVER: At any point did the actual fraternity president or 10 representatives…did you interact with them on how they would see the operation moving 11 forward? 12 MS. KADRICH: I did not interact with the fraternity itself. I based my information of 13 the application that we received and the other information. 14 BOARDMEMBER STOCKOVER: What I find somewhat problematic is…have they 15 identified where they do hold their meetings when they have a complete membership meeting? 16 Are they doing it on campus somewhere or…? 17 MS. JULIE RICKETT: That’s correct. 18 BOARDMEMBER STOCKOVER: Okay…can I ask Paul a question? 19 CHAIR BELLO: Can we get a response to that so we can get it on record? 20 BOARDMEMBER STOCKOVER: Well my next question was when would be the 21 proper time to hear about that? 22 CHAIR BELLO: Can I have the lady come to the stand? 23 MS. RICKETT: Hi, I’m Julie Rickett, the other owner. And the fraternity is just going to 24 continue to have their meetings on campus, so they are using the home just for a residence. Oh, 25 where do I sign? I’m Julie Rickett…oh, sorry. Does that clarify…? 26 BOARDMEMBER STOCKOVER: It’s fairly vague, but I believe I understand…CSU 27 would accommodate them in the future. 28 MS. RICKETT: They already have their meetings at CSU, so they’re just going to 29 continue to have their meetings at the regular place at CSU. 30 CHAIR BELLO: Thank you. Any other questions of the Director? 29 1 BOARDMEMBER BEAR: I have a question for Mr. Snyder. The…your home next to 2 the subject property, from street and alley observation, it appears to be a four unit, is that correct? 3 MR. SNYDER: A four-plex, yes. 4 BOARDMEMBER BEAR: A four-plex. And so, is that a maximum of twelve 5 occupants? 6 MR. SNYDER: Each unit is three bedrooms, three people, because of the two plus one 7 regulation, per unit, a maximum of twelve. I have eight parking places for twelve people. 8 BOARDMEMBER BEAR: So the structure itself supports twelve? 9 MR. SNYDER: Yes, divided into four very discreet units with double walls between 10 them. 11 BOARDMEMBER BEAR: Right, and then what is your total finished square footage? 12 MR. SNYDER: About 4500 for the whole building. 13 BOARDMEMBER BEAR: Finished, total square footage… 14 MR. SNYDER: Yes, it’s all finished. 15 BOARDMEMBER BEAR: …for all four units, and you’ve got twelve max in your unit. 16 MR. SNYDER: Right, correct. 17 BOARDMEMBER STOCKOVER: Is there two of those units or just one of those units? 18 BOARDMEMBER BEAR: There’s two properties. 19 MR. SNYDER: There’s two, but I just addressed the one because…they’re identical so I 20 just thought I’d stick… 21 BOARDMEMBER STOCKOVER: For the record, we’re talking about two 12-plexes. 22 MR. SNYDER: Two four-plexes. The immediate next door… 23 BOARDMEMBER BEAR: They are two separate lots, correct? 24 MR. SNYDER: Right, they’re actually separate legally…they’re separately divided. 25 BOARDMEMBER BEAR: Okay, and then do you agree with Mr. Milewski’s comment 26 that parking does occur in the alley for those? 27 MR. SNYDER: Absolutely…well, not only is it the students who live in my place, but 28 there’s…it’s only a block away from campus, so lots of people park over there. It’s worth saying 30 1 though that my unit…let’s just look at one unit because it’s easier. It’s a four-plex, three 2 bedrooms each unit, eight baths total, four kitchens…it has an upstairs study room; it has eight 3 parking places for twelve people. We’re talking eighteen people with the same number of 4 parking places here. 5 BOARDMEMBER BEAR: I understand, okay, thank you. 6 MR. SNYDER: And one other thing about that is that I have a little bit more control since 7 each unit is discreetly represented by three students…I have three lease guarantors and I can get 8 on the students about parking. 9 BOARDMEMBER BEAR: Thank you for answering… 10 MR. SNYDER: Could I ask one little question? 11 BOARDMEMBER BEAR: I don’t know that that’s permitted… 12 MR. SNYDER: It’s just regarding the building… 13 CHAIR BELLO: Public hearing is closed. 14 MR. SNYDER: Okay, thanks. 15 CHAIR BELLO: Board discussion, where are we? 16 BOARDMEMBER SHUFF: So are we still at…? 17 CHAIR BELLO: Board discussion. 18 BOARDMEMBER SHUFF: Or we can ask questions of… 19 CHAIR BELLO: Yes. 20 BOARDMEMBER SHUFF: That’s different than Board discussion, correct? 21 CHAIR BELLO: Does anybody still have questions? Okay, Board discussion. 22 BOARDMEMBER LONG: Wait, I did have one…stop. It’s not that complex, it won’t 23 take that long. And so, briefly Noah, we’ll go with Noah…it’s like there’s so many people to 24 ask questions to…what would have been…is the criteria…or Paul…the criteria used by the 25 Director as far…it’s…the same criteria would have been addressed if it went to P and Z, it just 26 would have been addressed differently, is that…my question…or not? 27 DEPUTY CITY ATTORNEY ECKMAN: Yeah, the 3.8.25 would still be the section that 28 governs this, but we just decided that the section…the determination was to be made by the 29 Director in that case. 31 1 BOARDMEMBER LONG: The difference is who, not how. 2 DEPUTY CITY ATTORNEY ECKMAN: Right. 3 BOARDMEMBER LONG: That was it. 4 DEPUTY CITY ATTORNEY ECKMAN: It’s the same thing with anything in the Land 5 Use Code; we have the P and Z Board review and we have the Hearing Officer review, and it’s 6 the same criteria no matter who reviews it. 7 CHAIR BELLO: Okay. 8 BOARDMEMBER SHUFF: I do have a question of Paul also. So, in Jamie Baker 9 Roskie’s memo, one of the points was that a change of use permit was issued, which she was 10 stating is not really stated in the Code that that’s a viable option or process. Could you address 11 that? 12 DEPUTY CITY ATTORNEY ECKMAN: Yeah, she makes a good point…apparently 13 there is no particular document called a change of use permit in the City’s system, and yet it’s 14 been, as I understand it…and Noah can explain more how it’s been used in the past…but, in fact 15 perhaps he should…but I gather that it’s been actually issued on a building permit form instead 16 of a change of use permit form, which isn’t a perfect system and it seemed like one that could be 17 easily fixed. But perhaps Noah could help with that. 18 MR. BEALS: Yeah, we do use the building permit to change the use, and we do that 19 several times a year, using the building permit just to change a use, not to change an occupancy, 20 but just to change the use of a building. Usually it happens on tenant finishes. 21 BOARDMEMBER LONG: I was curious because I’ve gone through that and I realized 22 when you said that, that it was…mysterious. 23 MR. BEALS: Sometimes…certificate occupants, or occupancy of a building, which is the 24 Building Code, takes in a lot of the same uses that are identified separately in the Land Use 25 Code. 26 BOARDMEMBER SHUFF: Sure…so, another legal question. So, legally, 27 would…technically they would really only have to get a building permit then, correct? If it was 28 an abandoned use and… 29 MR. BEALS: Right, their certificate of occupancy was still in place. 30 BOARDMEMBER SHUFF: Oh, if the previous occupancy or the approved occupancy 31 was still in place, it would just be a building permit, but because it’s going from single-family to 32 a fraternity, then you do have to go through the planning process, in which case approvals are 33 required and then a building permit to bring it up to code? 32 1 MR. BEALS: If the certificate of occupancy for fraternity was changed, then the building 2 permit would be a change of use and a change of occupancy also. In this case, the certificate of 3 occupancy that is in place is still the one for a fraternity, the one that was pointed out earlier in 4 the meeting. And so the only thing that was changing here was the use because that fraternity 5 has been abandoned and reverted to a single-family. 6 BOARDMEMBER SHUFF: Okay, thank you. 7 BOARDMEMBER BEAR: So, as a follow-up question, Noah…so the certificate of 8 occupancy was issued at the time, so the comment that it was issued under different zoning is 9 not…you would not agree with that statement, is that correct? So you would assert that it 10 was…the original certificate of occupancy was issued validly with a fraternity use, where Mr. 11 Snyder had argued that it was not. 12 MR. BEALS: The original certificate of occupancy and use…at that time it was a change 13 of use and occupancy…was issued validly under those current…those Building Code regulations 14 and the land use regulations at that time. 15 BOARDMEMBER BEAR: And that did permit the fraternity, not just a boarding house? 16 MR. BEALS: Correct. 17 BOARDMEMBER BEAR: And then, when the land use change is approved, is a new 18 certificate of occupancy issued? 19 MR. BEALS: Not if the certificate of occupancy is still valid for the use that it’s 20 changing to. 21 BOARDMEMBER BEAR: And so, where does compliance with City code come in? Is 22 that in the building permit? 23 MR. BEALS: So, when a building permit is required, then whatever that work is they’re 24 requesting has to be brought up to code. 25 BOARDMEMBER BEAR: And so, is a building permit required? 26 MR. BEALS: Sorry, when a building permit is required for a change of occupancy or 27 building permit is required for construction of new walls or electrical or plumbing, then that 28 work needs to be brought up to current code. 29 BOARDMEMBER BEAR: So will that…will there be a building permit required based 30 on the certificate of occupancy as it exists today? 31 MR. BEALS: They have not presented anything that should change…that requires a 32 building permit for new plumbing, electrical… 33 1 BOARDMEMBER BEAR: So, no… 2 MR. BEALS: I can’t say no, I mean it may be in the future that they need a building 3 permit to do some work. 4 BOARDMEMBER BEAR: Okay, thank you. 5 BOARDMEMBER LONG: Well, and I want to…and not to split hairs…but so, when 6 they got a letter of completion, or when the prior owner in 2006, letter of completion stating to 7 be occupied by the owner, that did not change…I mean, so he got a permit, he pulled a permit 8 and he says, okay, I’m going to turn it back into a house. And going to her question, well now 9 we’re going to do a change of use and say, well now it’s a fraternity but construction was done to 10 make it a house. And I mean that permit says it had four bedrooms, and now we have nine 11 bedrooms…I don’t think they count the basement so I kind of get that. So now, you know, I 12 mean what happened to the non-conforming bedrooms and how come the fraternity house 13 doesn’t have to comply with current building code? If it was built to be a house in 2006 and got 14 a letter of completion that says it’s now a house…I mean, I liked your question. So, I’m kind of 15 okay with it, because remember…former contractor and it always seemed like I was having to 16 pull…I never got to do this. I just don’t understand, to Daphne’s question, now we don’t have to 17 pull a permit or ensure that it complied with building standards. And I know we’re not doing 18 building standards here, but it’s a valid point. This guy, Dennis was it, prior 19 owner…yeah…made it a house, pulled a permit, got a letter of completion, and now we’re going 20 to say, oh no, now it’s back to a fraternity, but they’re not required to check anything. 21 MR. BEALS: I did review with Mike Gebo, the Chief Building Official, where…what 22 the current certificate of occupancy is, and he did say it is the fraternity occupancy. 23 CHAIR BELLO: And I’m going to push back saying, that’s a Building Code issue, it’s 24 not a Land Use Code…we’re not dealing with Building Code issues here. So, if there’s a 25 concern about the Building Code, then I think that’s outside the purview of this Board. I mean, I 26 don’t necessarily agree with the fact they don’t have to do anything, but that’s not my…my role 27 here. 28 BOARDMEMBER BEAR: So then my thought around that is that…so, the Director, 29 who’s very thoughtful in the fact that she considered the functionality of the existing property 30 when placing conditions. But my question is, what is the…what do we know about that, like 31 what was validated? So she considered a set of facts and was thoughtful in placing conditions 32 based on that understanding, but what is that understanding, and…what is it? Is it conforming 33 bedrooms, non-conforming bedrooms, is there four bedrooms, is there nine bedrooms? So that’s 34 where I can’t make that leap, like if you’re…if you have…if you’re doing a Land Use Code 35 change based on a lot and an improvement, right, you’re basing it on the improvement, not just 36 the lot. So, if it was just the lot, I get that, but when the improvement comes into play, then you 37 look at the improvement and say, is it reasonably feasible to change the Land Use Code 34 1 considering this improvement? And I guess my concern is, I’m…and then we’re placing 2 conditions based on this improvement. But I think there’s a lot of question in my mind about the 3 improvement and does that support the use, that’s where I’m struggling. 4 CHAIR BELLO: Could Laurie help us with that? 5 MS. KADRICH: I think I might be able to provide some clarity on that. I did meet with 6 the Chief Building Official as well and took a look at the plans that we had. It’s my 7 understanding, and I concur with Noah on this, that the term non-conforming does not have 8 anything to do with the Building Code. When we checked that with Mr. Gebo, the non- 9 conforming has to do with a real estate term. So, in his opinion, as he relayed to me, there is 10 nothing non-conforming about the bedrooms in that fraternity, and that the codes that apply to a 11 fraternity are very different than the codes that apply to Mr. Snyder’s situation. And so those 12 were further considerations that we looked at before we placed any operational conditions on the 13 building. 14 BOARDMEMBER BEAR: And, Bob, so from an appraisal standard standpoint, because 15 that appraisal would have been done under the Appraisal Institute standards, correct? And so, as 16 a non-conforming, what does the Appraisal Institute…how do they define that? 17 BOARDMEMBER LONG: Well, most of the time…in basements…and this has already 18 been apparently address…in the basements they’re referring to no egress. So number one is 19 egress, and that would affect Mike Gebo. But number two is a closet, and they don’t need 20 closets. 21 MS. KADRICH: And that’s exactly what Mr. Gebo said, and he confirmed that the 22 egress windows were put in in 1978. 23 BOARDMEMBER BEAR: And those are the same standards that are in place today for 24 egress windows? 25 MS. KADRICH: That’s my understanding. 26 BOARDMEMBER LONG: Roughly…they’re better today but they’re acceptable. 27 BOARDMEMBER BEAR: What do you mean by that? 28 BOARDMEMBER LONG: Well, in ’78 they had a different criteria, but they’re, quote 29 unquote, grandfathered in. They don’t make people lower the sills, and people can get out of 30 them generally, it’s just a taller sill. 31 CHAIR BELLO: Okay, I think we close the questions…. 32 BOARDMEMBER SHUFF: And Daphne, I just wanted to respond to some of your 33 comments. I think…you had referred to a land use change on a number of occasions and I just 35 1 want to clarify that this isn’t a land use change, that it’s actually…this is an approved use, and 2 you know, based on all of our discussion, it’s actually a pre-existing use that’s being reinstituted. 3 BOARDMEMBER BEAR: Yeah, thanks for making that point. 4 CHAIR BELLO: Okay, Board discussion? 5 BOARDMEMBER LONG: Well, I appreciate what you’re saying Mike…Mike’s right in 6 that we’re not doing a building…you’re correct…but it just helped tie some of the conversation 7 in, that was all…and to Daphne’s point. I still have a little…because it’s not defined in 8 code…I’m having a little hard time…from the residents perspective, I’m having a hard time 9 seeing how possibly due process was had since it went through the Director. And nothing was 10 brought up today, but I did read all of that. And they make a good point, and we’ve talked about 11 it here on the Board before is…and I’m not saying there will be a problem…but if there is a 12 problem, who’s enforcing it? Well, it’s the same people who are complaining because planning 13 doesn’t…you know, Noah doesn’t go inspect properties…you’ve asked that question before. It’s 14 completely a complaint-driven process and there are things to do, so I just…my concern when I 15 say…you know, I’m not sure, you know, full due process necessarily for the residents has been 16 gone through…so I just completely can sympathize. They feel like they weren’t included in the 17 process, but they’re going to be the ones stuck enforcing it. And I live in NCB; I’ve been there 18 30 years; I have renters all around me…I’ve been the guy enforcing for 30 years, and it gets 19 really…it gets old. Now, that said, I have no problem innately with fraternities, and I don’t 20 assume there will be a problem; I’m just saying I can understand their concern that they don’t 21 feel like they got due process because in the end they will be the ones having to enforce it. 22 CHAIR BELLO: But as Paul has indicated, isn’t the due process…would be the same 23 whether it went to P and Z or went to administrative review or to us. The process is the same, 24 public hearing… 25 BOARDMEMBER LONG: But their hearing was after the…now they feel like this is 26 after the fact…you know what I mean. So, they do have a due process, it’s just been crippled by 27 the…what do you call it…the muteness of the Code in the fact that it got changed…started as a 28 minor and they all showed up for a meeting and then it... If you go…and not a complaint, but if 29 you go through those emails…I don’t know, my voice…there’s always a reference to, well, at 30 the next meeting…well, there was never a next meeting. And I’m not saying that’s right or 31 wrong or process wasn’t followed, but clearly the residents didn’t…you know…it wasn’t clear to 32 them what the process was. It never is…I mean it’s not always clear to us, obviously, and so as 33 residents…so they were confused…so that’s my only concern is…it was left to the Director’s 34 decision and I can see where they’re…I’m sympathetic with their concerns because as far as, in 35 the end, they will end up being the ones having to deal with it. 36 BOARDMEMBER BEAR: Well, that’s what I was wondering, if they…you know, 37 when I asked Paul, do you deny the change use based on impact to the neighborhood because of 36 1 visual observation of the street and the alley showed that the two properties…with eight off- 2 street parking were completely full, and I did view cars parked in the alley. And so that supports 3 twelve, with a full parking lot and overflow in the alley. So now we’re supporting eighteen with 4 the same number of parking spaces. I don’t know that there’s any thought as to why it would be 5 any different. And I completely appreciate the fact that Mr. Milewski was thoughtful and 6 collaborative in looking for alternative parking spaces, but that’s not part of the lot, and so I 7 think really can’t be given consideration there. So, from that standpoint, it doesn’t appear to be 8 operationally compatible when occupancy at twelve puts overflow traffic in an alley. 9 CHAIR BELLO: But you don’t know that those…overflow parking is from that 10 residence. And, the Code says that the three or more needs two parking spaces per three 11 bedroom, so we’ve got…it meets Code. 12 BOARDMEMBER BEAR: There’s been discussion, though, that the Code needs to be 13 updated. 14 CHAIR BELLO: Well, that’s… 15 BOARDMEMBER BEAR: But that’s still operational impact. 16 BOARDMEMBER SHUFF: So, can I interrupt just for a second and…I guess the big 17 picture is…so, the reason for the…the grounds for appeal were Director improperly issued 18 change of use permit for which there is no provision in the Code, appropriate procedure for 19 proposing a permitted use in…is Article 2, section 2.1.2, fraternity uses must be reviewed by the 20 Planning and Zoning Board under Article 4. So, my understanding is…our question today is, 21 was appropriate procedure followed by the Director. And really, our job is not to evaluate how 22 many parking spaces should be here…that’s really…that’s not our expertise. That’s not our job 23 on this Board. So, I would like to kind of point discussion to whether appropriate procedure was 24 followed, and whether this appeal should be granted or denied. And I think that’s what our job is 25 today, is that I guess if…as far as clarification from Paul or Noah, would that be correct? 26 DEPUTY CITY ATTORNEY ECKMAN: Well, I think your job is to analyze whether 27 this plan, to the extent reasonably feasible, complies with the Article 3 and Article 4 standards. 28 You think that it’s a procedural question, and it can be. And I expect that it’ll be brought up 29 again at the next appeal to the City Council once this Board decides. We think that we followed 30 the proper procedure, Ms. Roskie does not. And you can decide that issue as well. But, I do 31 think you must decide whether it, to the extent reasonably feasible, complies with the Article 3 32 and Article 4 standards, because that’s what section 3.8.25…whatever section…tells you to do. 33 BOARDMEMBER SHUFF: Okay, so first of all would be the question of whether or not 34 the procedure was appropriately followed, because if we determine that it’s not, then the appeal 35 would be granted without any further discussion, correct? Or… 37 1 CHAIR BELLO: It would be denied. 2 BOARDMEMBER SHUFF: Right, the appeal would be granted, so the decision would 3 be overturned, correct? 4 CHAIR BELLO: Oh, you’re right. 5 DEPUTY CITY ATTORNEY ECKMAN: I don’t know what procedural issue you would 6 base that on…if the challenge is that the Director shouldn’t have made that decision, then I guess 7 you could overturn it. 8 BOARDMEMBER SHUFF: That it should have gone to Planning and Zoning, which is 9 what the appeal was, correct? 10 DEPUTY CITY ATTORNEY ECKMAN: If you believe that this is not properly before 11 you and should have been before someone else, then I guess you can close your meeting without 12 making any decision. But, that’s not our recommendation. 13 CHAIR BELLO: So do we want to have a discussion, do we think this was…? 14 BOARDMEMBER LONG: I want to correct Paul, when he said reasonably feasible was 15 in the definitions…I thought you said that earlier, it’s not there. And I think I have an 16 understanding of what reasonably feasible is. It’s a term I use. 17 DEPUTY CITY ATTORNEY ECKMAN: Look under E – extent reasonably feasible. 18 BOARDMEMBER LONG: E, okay there you go…I used reasonably…okay, 19 extent…because I kind of wanted to review that. Gosh, he proved me wrong, an attorney proved 20 me wrong, go figure. 21 BOARDMEMBER SHUFF: Well I do think we need to discuss, because it was one of 22 the biggest points brought forward by the attorney, is that they didn’t believe that the appropriate 23 procedure was followed and that it should have been reviewed by Planning and Zoning Board, so 24 I think that’s a reasonable discussion to have in this circumstance. 25 BOARDMEMBER BEAR: And you brought that up with earlier…so, I mean you had 26 concerns about that. I think, as someone who writes policy, I think the point made was, you 27 can’t anticipate every situation, it’s so hard. And so all you can really do is, you know, look at 28 the policy and try to, by proxy right, meet the same considerations and the same objectives. And 29 I think that, you know, Council has demonstrated that they…to the best of their ability based on 30 the limited, you know, policy that they did, I think without it being prescriptive; it’s a 31 prescriptive as it could have been. 38 1 CHAIR BELLO: So does anybody have a feeling that the…it was not in the Director’s 2 authority to make this decision? Does anybody feel that’s the case? Because I think that’s the 3 question we’re asking. 4 BOARDMEMBER SHUFF: You know, I guess my only hesitation is this…is that under 5 the abandonment period, it does state that you can…you can continue uses that have been 6 abandoned, but they have to be applicable to the general development standards, so it’s a tough 7 thing because it’s a matter of personal opinion. Well, does that mean that it’s permitted uses 8 under the Code, or does that mean you have to go through the process of the P and Z review? 9 CHAIR BELLO: That’s the question I guess. 10 BOARDMEMBER SHUFF: It’s pretty vague. 11 BOARDMEMBER STOCKOVER: And…my two cents worth is, that’s why we have P 12 and Z and that’s why we have this Board. If you make…the worst case scenario when we talk 13 about derelict buildings and blighted areas and urban renewal, and Fort Collins does not suffer 14 like a lot of the east coast cities, but…the worst case to be in is when you have an entity where 15 you can’t do anything because the code and the process just is so difficult to deal with. So then 16 you have people developing all around you and you have all of the responsibility with none of 17 the funds. And the City has worked really hard on being more user-friendly and getting 18 processes through so that we don’t see, you know, Windsor popping up with all of the…you 19 know, the show homes and everything, but all those people are commuting to Fort Collins. So, 20 in the big, broad spectrum, City Plan and City Code are…you know, that’s our guidebook. And 21 at this level, when that doesn’t flow as everybody expects or you want an appeal, that’s what 22 we’re here for. So, it’s my opinion that yes, she did have the authority, and the…you know, 23 the…a couple of the little grey areas or whatever we want to term them as, brought it to this. It’s 24 working as described; it gives everybody an outlet to come speak in one place at one time. And 25 the next step…and both sides, I believe had said clearly, the final step would be City Council. 26 So, I see ours as…we’ll make a decision and one side or the other will appeal it, but we’re giving 27 an opinion at this point. So I think the process is working; I wouldn’t have any hesitation on 28 making a vote and expressing my opinion on this. And my opinion is that it was a proper 29 hearing and the process was followed. And I’ve worked with City staff, you know, this is my 30 eighteenth year; they don’t take this lightly. 31 BOARDMEMBER LONG: It took me that long to come up with…to answer your 32 question. If we think that she didn’t have the authority…and what I can say, looking at it, is it 33 doesn’t say she doesn’t have the authority. So lacking any other information, I can’t say that she 34 didn’t have the authority because there’s not information in here telling me she didn’t. Although 35 I do feel…I just wanted to say, like I said before, I can sure see why residents would feel like 36 they didn’t have due process. But the Code isn’t clear so, you know, it doesn’t say she doesn’t 37 have that authority. 39 1 CHAIR BELLO: And the City’s attorneys indicated…felt that she does have the 2 authority. 3 BOARDMEMBER MCCOY: Yeah, I completely agree; zoning allows it, it’s a prior use. 4 There’s some grey area in how they determine, but…I don’t see any problem here, I mean with 5 what happened. So I would vote to uphold the decision. 6 BOARDMEMBER SHIELDS: I agree, I don’t see any better person than the Director to 7 make the decision on something like this. It’s an allowed use…yeah. 8 CHAIR BELLO: Okay, so… 9 BOARDMEMBER STOCKOVER: I only have one quick thing to say, I would just ask, 10 as far as the trash…we have an office building and we had a similar incident. It’s an office 11 building that borders residential. And we converted from a metal container dumpster to three 12 residential type trash units and then that triggers their picking it up off the street during the day, 13 because that did seem problematic to me, running a trash truck down that alley early in the 14 morning. If you just switch from commercial trash to residential trash, it cures that. The 15 students just have to roll the three dumpsters out there as our tenants in our office building do. 16 BOARDMEMBER BEAR: I just have one comment to make. I don’t disagree that, as 17 Bob said, there’s nothing that says the Director didn’t have the authority, and I think that based 18 on Council…and it was done with good will and the right intentions. And based on…there is a 19 gap, I think, in the Code, and I think everyone agrees with that. And I think it was done 20 appropriately. My concern is that there is some subjectivity in that, by lack of prescriptive 21 guidance, and that subjectivity is making the decision that it’s not operationally incompatible. 22 But there’s no prescribed criteria to make that determination, and so to me, that warrants a more 23 robust process. And I’m not saying that it wasn’t within her authority or that it wasn’t done in 24 good will and with due diligence. I’m not saying that at all; I agree with that. But…the lack of 25 prescriptive guidance about how the decision is made subjectively to determine no impact gives 26 me pause. And so, in that way, I would look for a more robust process. 27 CHAIR BELLO: Okay, any other comments? 28 BOARDMEMBER LONG: I agree with Daphne. 29 CHAIR BELLO: Okay, I’m going to make a motion then. Paul, do I need to do the 30 detrimental to the public good and…none of that stuff? Okay. 31 DEPUTY CITY ATTORNEY ECKMAN: The Code simply requires you to either 32 uphold, overturn or modify the decision of the Director. 33 CHAIR BELLO: Okay, thank you. So, I make a motion to uphold the decision of the 34 CDNS, and I believe that’s Community Development and Neighborhood Services, Director, and 40 1 with the conditions as stated: the building occupants shall be limited to 18 occupants, no 2 fraternity meeting shall exceed 18 attendees, and eight off-street parking spaces shall be proved 3 as shown in the plan dated 8/26/15. 4 MR. BEALS: I think you meant 3/26. 5 CHAIR BELLO: I’m sorry…did I say 8…3/26/18…3/26/15, thank you. 6 BOARDMEMBER STOCKOVER: Second. 7 CHAIR BELLO: Discussion? 8 BOARDMEMBER SHUFF: Yeah, I guess I just wanted to close the loop on some of the 9 original discussions about whether or not this was an appropriate procedure. And I appreciate 10 everybody’s input on that, and I think mostly because of the fact that that was…that was brought 11 up as the question in the appeal, I thought it was worth discussion. I thought that that’s 12 something we should all voice our opinion or concern about. I do feel like the Director did her 13 due diligence in assessing the situation. You know, she had voiced in her testimony that she felt 14 that, you know, public input was correct and that, you know, she had gone forward with the 15 minor amendment process, but because of the fact that, you know, they didn’t have an approved 16 site plan, it was only the building permit, you actually couldn’t go through that process. So then, 17 went to the next most logical step, which…I would support that as well. 18 CHAIR BELLO: Thank you. Paul was that motion acceptable? I don’t need to expound 19 on it any more from the standpoint…okay. Okay, any other discussion? Roll call please, 20 Marcha. 21 MS. HILL: Shuff? 22 BOARDMEMBER SHUFF: Yes. 23 MS. HILL: Long? 24 BOARDMEMBER LONG: Yes. 25 MS. HILL: Shields? 26 BOARDMEMBER SHIELDS: Yes. 27 MS. HILL: Bello? 28 CHAIR BELLO: Yes. 29 MS. HILL: Bear? 30 BOARDMEMBER BEAR: No. 41 1 MS. HILL: Stockover? 2 BOARDMEMBER STOCKOVER: Yes. 3 MS. HILL: McCoy? 4 BOARDMEMBER MCCOY: Yes. 5 CHAIR BELLO: So appeal BPA15001 is denied…the Director’s opinion has been 6 upheld. Thank you. Michael Bello, Chair Heidi Shuff, Vice Chair Daphne Bear Bob Long John McCoy Ralph Shields Butch Stockover Council Liaison: Bob Overbeck 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. • Call to Order and Roll Call REGULAR MEETING AUGUST 13, 2015 8:30 AM • Citizen Participation (Items Not on the Agenda) Deputy City Attorney Eckman introduced Assistant City Attorney Brad Yatabe to the Board and stated Mr. Yatabe will be taking over for him upon his retirement. • Approval of Minutes from Previous Meeting Shuff made a motion, seconded by Long, to approve the minutes from the June 11 , 2015 meeting. Yeas: Shuff, Bear, Long, McCoy and Shields. Nays: none. Abstain: Bello. THE MOTION CARRIED. (**Secretary's note: Stockover arrived late to the meeting and was not present for this vote.) • Appeals for Variance to the Land Use Code 1. APPEAL ZBA150031 -Approved Address: 1543 Freedom Lane Petitioner: Robert Hansen Owner: Hansen Family Trust Zoning District: R-L Code Section: 4.4(D)(1) Project Description: The variance would allow a second story addition above the garage to exceed the allowable floor area for the lot by 404 sq. ft. Staff Presentation: Beals showed slides relevant to the appeal and stated the request is for additional square footage on the second floor. He noted the site plan and setbacks will remain the same. Beals showed elevations indicating the addition, stating it would be located above the existing two-car garage, and Zoning Board of Appeals Page 2 August 13, 2015 would place the square footage of the structure approximately 404 square feet over what would be allowed on the lot. Beals stated staff is recommending approval of the variance request. Shuff asked about other properties in the area which exceed the allowable floor area, per the applicant's information. Beals replied there has not been a recent zoning change and stated the applicant received his information from the Assessor's Office and he therefore cannot comment on the legality of the additions in the area. Applicant Presentation: Robert Hansen, 1543 Freedom Lane, stated this addition would allow for a new bedroom and walk-in closet for his daughter. He stated this plan looks similar to others in the neighborhood; however, his lot is slightly smaller than others, which limits his allowable square footage. Audience Participation: None Board Discussion: Bello stated the variance seems nominal and inconsequential. Bello made a motion, seconded by Shuff, to approve Appeal No. ZBA 150031 for the following reasons: the granting of the variance would not be detrimental to the public good, the additional floor area is a 6% increase of the allowable floor area, the additional floor area does not increase the footprint and height of the existing structure; therefore, the variance request will not diverge from the standard but in a nominal and inconsequential way when considered in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Vote: Yeas: Bear, McCoy, Shuff, Bello, Stockover, Long and Shields. Nays: none. THE MOTION CARRIED. 2. APPEAL ZBA 150032 - Approved Address: SW corner of S. Shields St. & Westbury Dr. Petitioner: Leigh Solo Owner: Le Jardin HOA Zoning District: R-L Code Section: 3.8.7(C)(1)(f) Project Description: The variance would allow a subdivision identification sign to be located on a street shared by other subdivisions. Additionally, the variance would allow for more than one subdivision identification sign at this shared street entry. Staff Presentation: Beals stated Rodney Wonenberg is representing the HOA today and discussed the request for an additional subdivision entry sign. He stated the Code requires subdivision signs to be located on an entry only into the specific subdivision; however, staff has found this request to be nominal and inconsequential and potentially helpful in wayfinding. Additionally, he noted no new structures would be built as letters would be added to an existing wall and the signage square footage is within the Code requirements. Beals also stated the sign would be located on private property and would not be within the public right-of-way. Bear asked if a subdivision sign currently exists on Corsica. Beals replied in the negative and stated that would typically be where a sign would be placed. Additionally, he clarified the two signs previously referenced are the existing Westbury sign and the new proposed sign for Le Jardin. Applicant Presentation: Rodney Wonenberg, Le Jardin resident, cited other examples of two signs on a single corner throughout the city and stated the wall for the sign is already in place. Zoning Board of Appeals Page 3 August 13, 2015 Audience Participation: None Board Discussion: Bear stated it is reasonable to have a sign for a neighborhood that is helpful for wayfinding. Long agreed. Bear made a motion, seconded by Shuff, to approve Appeal ZBA150032 for the following reasons: the granting of the variance would not be detrimental to the public good and would actually be beneficial to the public good; the sign is within size and height limits of an identification sign; the wall where the sign will be placed is an existing wall; it will provide additional clarification that both subdivisions can be accessed from Westbury Drive; therefore, the variance will not diverge from the standard but in a nominal and inconsequential way when considered in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2, and because the documentation does demonstrate that the wall is on the Homeowner's Association lot, there would be no need to place a condition on the approval. Vote: Yeas: Bear, McCoy, Shuff, Bello, Stockover, Long and Shields. Nays: none. THE MOTION CARRIED. 3. APPEAL ZBA150033 -Approved with Conditions Address: 642 Yarrow Circle Petitioner/Owner: Mark Laken Zoning District: R-L Code Section: 4.4(0)(2)(c), 4.4(0)(2)(d), and 3.8.19(A)(6) Project Description: The variance would allow a new shade structure (posts and eaves) to encroach 5 feet into the required 5 foot side-yard setback and 1 O feet into the required 15 foot rear-yard setback. Staff Presentation: Beals showed slides relevant to the appeal. He noted this property is zoned RL; however, the property just to the rear of the subject is zoned LMN with no current development plans. The LMN zone would allow a residential use to be built within 8 feet of the rear property line. Beals noted 20 feet of setback created by a drainage easement exists between the subject and the property to the south. No structures can be built on that easement. He stated staff is recommending approval of the variance with the condition that the shade structure remain open on three sides, that the side posts of the structure be set back at least two feet so the eaves can extend to zero, and that the posts along the rear be set back at eight feet so the eaves can extend two feet. McCoy asked about the utility easement at the rear of the property and asked if the house is already encroaching into the 15-foot setback. Beals replied the house did receive a variance for the encroachment when originally built in 1994. Applicant Presentation: Mark Laken, 642 Yarrow Circle, stated the house is built in such a way that it is difficult to add any type of structure without an encroachment, and the proposed location of the structure would provide the most shade. Bear asked if the proposal incorporates the recommended conditions. Mr. Laken replied in the negative and stated he would like the structure to be larger, but would move forward with the structure regardless. Audience Participation: None Board Discussion: Beals clarified the staff report should read two variance requests to allow 5 foot encroachment into the 5 foot required side yard setback, and 6 feet into the required rear-yard setback with the Zoning Board of Appeals Page4 August 13, 2015 conditions that the posts are set back two feet from the side property line and eight feet from the rear property line. Bello made a motion, seconded by Long, to approve Appeal ZBA150033 for the following reasons: the granting of the variance would not be detrimental to the public good, the variance requests would allow a 5 foot encroachment into 5 feet required side setback and 6 feet into the required rear yard setback, with the condition that the posts of the structure are set back two feet from the side property line and eight feet from the rear property line and the structure remains open on three sides; the easement on the south property line provides a greater setback distance for a structure to another residential property, the encroachment is limited to the corners of the shade structure, the structure is open on three sides, the primary structure currently encroaches into the rear setback, the adjoining property is permitted to build a structure with the same setbacks without a variance request; therefore the variance will not diverge from the standard but in a nominal and inconsequential way when considered in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Vote: Yeas: Bear, McCoy, Shuff, Bello, Stockover, Long and Shields. Nays: none. THE MOTION CARRIED. 4. APPEAL ZBA 150034 - Approved Address: 925 Cheyenne Drive Petitioner/Owner: Michael Quirk Zoning District: R-L Code Section: 3.8.11 (C)(3) Project Description: The variance would allow a recently replaced fence varying in height between 6 feet to 7 feet to remain. The maximum height of a fence in the rear and side yards is 6 feet. Staff Presentation: Beals showed slides relevant to the appeal and stated the fence in question is located along East Stuart Street and noted the fence does not consistently go over the 6 foot height limit and in no place goes over 7 feet due to grading changes. Beals stated staff is recommending approval of the request as being nominal and inconsequential. Long asked if landscaping will be placed along the fence. Beals replied in the affirmative. Long noted fill dirt could be placed on the bottom of the fence in order to meet the requirements. Applicant Presentation: Michael Quirk, 925 Cheyenne Drive, stated dirt along the sidewalk was removed as it was primarily clay and stated the new fence is the same height as the one it replaced. Bear asked if any responses to the notice of hearing have been received. Beals replied in the negative. Audience Participation: None Board Discussion: Bear inquired if there were any responses from the neighbors about the APO mailing. Beals replied there was just the initial complaint but he had not received any other responses. Bear made a motion, seconded by Shuff, to approve Appeal ZBA150034 for the following reasons: the granting of the variance would not be detrimental to the public good, there have been no responses to the hearing notice, along the entire length of the fence, the height varies based on the variation of the grade of the property line, the additional increase of one foot is 16% of the increase of the allowed 6 foot maximum height; therefore the variance request will Zoning Board of Appeals Page 5 August 13, 2015 not diverge from the standard but in a nominal and inconsequential way when considered in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Stockover stated the original issue brought up by a neighbor was likely more of a concern rather than a complaint, particularly given there have been no follow-up complaints. Vote: Yeas: Bear, McCoy, Shuff, Bello, Stockover, Long and Shields. Nays: none. THE MOTION CARRIED. 5. APPEAL ZBA150035-Approved Address: 1137 Hawkeye Street Petitioner: Sundeck Designs, John Bridgham Owner: Robert Seybert Zoning District: R-L Code Section: 4.4(D)(2)(c) Project Description: The variance would allow a 2nd floor deck to encroach 4 ft. into the required 10 ft. rear-yard setback. Staff Presentation: Beals showed slides relevant to the appeal stating the property is near Lemay and Trilby. He stated the original PUD allowed for a 10 foot setback, which would normally have been 15 feet given the zone district. Additionally, Beals noted there have been other variances granted for similar requests in the neighborhood and stated staff is recommending approval of the variance as being nominal and inconsequential. Shuff asked if the lot is essentially backing to open space. Beals replied in the affirmative. Applicant Presentation: John Bridgham, Sundeck Designs, provided letters of support from neighbors and an aerial photo showing decks on adjoining properties. Audience Participation: None Board Discussion: The Board held a brief discussion concerning other similarly approved variances. Bello made a motion, seconded by Bear, to approve Appeal ZBA150035 for the following reasons: the granting of the variance would not be detrimental to the public good; the variance request to allow a deck to encroach into the rear yard setback an additional 4 feet from the previously allowed 10 foot setback is similar to previously granted requests; the structure is open on two sides; the same uses associated with a deck are allowed if it were at ground level; therefore the variance request will not diverge from the standard but in a nominal and inconsequential way when considered in the context of the neighborhood and will continue to advance the purpose of the Land Use Code as contained in Section 1.2.2. Vote: Yeas: Bear, McCoy, Shuff, Bello, Stockover, Long and Shields. Nays: none. THE MOTION CARRIED. • OTHER BUSINESS: None • ADJOURNMENT: The meeting adjourned at 9:39 a.m. Michael Bello, Chairperson Noah Beals, Senior City Planner-Zoning Agenda Item 1 Item # 1 - Page 1 STAFF REPORT September 10, 2015 STAFF Noah Beals, Senior City Planner/Zoning PROJECT APPEAL ZBA150036 PROJECT DESCRIPTION Address: 2201 Cedarwood Drive Petitioner: Mark Deines, ABD Ltd. Owners: Patrick Plaisance & Altisaya Vimuktanon Zoning District: R-L Code Section: 4.4(D)(2)(c) Variance Request: The variance request is to build a 635 sq. ft. addition to the house and allow two corners of the addition to encroach into the rear setback 7.42 ft. and 3 ft. RECOMMENDATION: Staff recommends approval of the variance request to allow two corners of a 635 sq. ft. addition of the house to encroach into the rear setback 7.42ft and 3ft. STAFF COMMENTS: 1. Background: The subject property is located in the Fairbrooke Subdivision, Second Filing. The plat of this subdivision included a 20 ft. drainage easement on the southwest side of Lot 17 (2201 Cedarwood Drive). The Tract of land abutting the rear-property line is owned by the City. This tract contains wetlands, City floodplains and natural area buffers. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), Staff recommends approval of two corners of a 635 sq. ft. addition of the house to encroach into the rear setback 7.42 ft. and 3 ft., and finds that: • The variance is not detrimental to the public good. • The 20 ft. drainage easement along the side property line makes it difficult to place an addition to the house that complies with setbacks. Therefore, the variance request may be granted due to a hardship of the lot not caused by the applicant and a strict application of the code results in a practical difficulty upon the applicant. 4. Recommendation: Staff recommends approval of APPEAL # ZBA150036. Agenda Item 2 Item # 2 - Page 1 STAFF REPORT September 10, 2015 STAFF Noah Beals, Senior City Planner/Zoning PROJECT APPEAL ZBA150037 PROJECT DESCRIPTION Address: 2902 Blue Leaf Drive Petitioner/Owner: Aram Fridal Zoning District: R-L Code Section: 4.4(D)(2)(c) Variance Request: The variance would allow a deck to be built 5 ft. into the required 15 ft. rear-yard setback. RECOMMENDATION: Staff recommends approval of the variance request to allow a deck to be built 5 ft. into the required 15 ft. rear- yard setback. STAFF COMMENTS: 1. Background: This property in located in the Quail Hollow, Fourth Filing. Within this filing, a 20 - 40 ft. wide Drainage Easement (TRACT A) was platted abutting the rear-property line of Lot 21 (2902 Blue Leaf Drive). The residential neighbors directly behind and south of the subject property have written letters of consent (see attachments to the application) of the applicant’s request. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), Staff recommends approval of a deck encroaching 5 ft. into the required 15 ft. rear-yard setback, and finds that: • The variance is not detrimental to the public good. • The deck area that encroaches is not covered. • The deck is open on three sides. • The drainage easement abutting the property exceeds the minimum setback. Therefore, the variance request 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. 4. Recommendation: Staff recommends approval of APPEAL #ZBA150037. Agenda Item 3 Item # 3 - Page 1 STAFF REPORT September 10, 2015 STAFF Noah Beals, Senior City Planner/Zoning PROJECT APPEAL ZBA150038 PROJECT DESCRIPTION Address: 200 S. College Ave., Suite 100 Petitioner: Amy Laner, ANJO Designs Owner: Jesse Laner, C3 Real Estate Solutions Zoning District: D Code Section: 3.8.7(M)(1), 3.8.7(M)(4)(a), 3.8.7(M)(4)(c), 3.8.7(M)(4)(d) Variance Request: The request is to allow an Electronic Message Center sign, approximately 5 sq. ft., to be displayed in the ground floor window of the building. This request would require the following variances: 1) Allow the sign’s message to be animated. 2) Allow the message to change more than once per minute. 3) Allow the changing message to scroll. 4) Allow the message to display more than a single color, value, and hue with a single color background. 5) Allow the electronic message center to be 100% of the total sign face area; maximum allowed is 50%. RECOMMENDATION: Staff recommends denial of the all 5 variance requests. STAFF COMMENTS: 1. Background: The sign code section contains many regulations for the size, location and display of signs. The regulations were put in place for many reasons, such as but not limited to safety; over use of signs; and to preserve aesthetic appeal of property viewed from the public right of way. 2. Applicant’s statement of justification: See petitioner’s letter. 3. Staff Conclusion and Findings: Under Section 2.10.2(H), staff recommends denying the 5 variance requests and finds: • The application does not identify sufficient reason to base an approval of the request. • Additionally, the Land Use Code has at least 3 sections that deal with the animation of signs making it difficult to say a variance is not detrimental to the public good. 4. Recommendation: Staff recommends denial of the 5 variance requests of APPEAL # ZBA150038.