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HomeMy WebLinkAboutLand Use Review Commission - Minutes - 05/12/2022 Shelley La Mastra, Chair Ian Shuff, Vice Chair David Lawton John McCoy Taylor Meyer Council Liaison: Shirley Peel Staff Liaison: Noah Beals LOCATION: City Council Chambers 300 LaPorte Avenue Fort Collins, CO 80521 The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224-6001) for assistance. REGULAR MEETING MAY12, 2022 8:30 AM • CALL TO ORDER and ROLL CALL All Commission members were present with the exception of Commission member McCoy. • APPROVAL OF MINUTES FROM PREVIOUS MEETING Meyer made a motion, seconded by Lawton to approve the April 14, 2022, Minutes. The motion was adopted unanimously. • CITIZEN PARTICIPATION (Items Not on the Agenda) • APPEALS FOR VARIANCE TO THE LAND USE CODE Before hearing the first item, Noah Beals indicated that Assistant City Attorney Claire Havelda would be offering some clarification of the rules and procedures of the Commission. Claire Havelda stated that is has come to our attention that we have couple of conflicts regarding item #5, ZBA220014 [correction (see note below*): item #4, ZBA220013]. Commission members who have conflict can offer details of their conflict individually. What happens when there is a conflict is that those Commission members must recuse themselves. When that happens, we will no longer have a quorum as defined in page 19 of the Boards and Commission manual, which requires that we have a majority of the seats present when conducting a quasi-judicial hearing. Thus, the Commission will not be able to hear item #5 [correction (see note below*): item #4] during today’s hearing. Noah Beals may have an alternative way to do that without having the applicant wait until our next meeting. Beals can offer additional information. Havelda asked that the Commission members with conflicts state their name, state their conflict, and the reason they will be recusing. Chair La Mastra stated that she had a conflict of interest, as the applicant is a current client of theirs. Vice Chair Shuff stated that he had a conflict of interest, as the applicant is a current client of theirs. LAND USE REVIEW COMMISSION MEETING MINUTES Land Use Review Commission Page 2 May 12, 2022 Beals indicated he will need to look into alternative methods of meeting prior to the next regul ar meeting. Normally when a Commission loses a quorum, that agenda item is moved to the next month’s meeting; hopefully we will have a quorum for next month. Staff will take a look to see if we can hold a remote or similar meeting earlier, working with Commission members’ and applicant’s schedules. La Mastra asked Havelda how many seats need to be present to meet quorum. Havelda asked Beals to confirm the full numbers of seats on the Commission. Beals stated it is seven members, meaning a quorum requires four members be present. La Mastra questioned if that changed due to the Commission being down two members. Havelda responded that unfortunately, the rules as they stand say it is a full number of those that the Commission seats that are available, regardless of whether or not there is a vacancy. La Mastra stated that because we are currently down two members, and two additional members have a conflict of interest, there is no way to meet quorum based on the current composition of the Commission. Beals explained further that the Commission has seven total seats; two are currently vacant, leaving five occupied seats. With the recusal of two of those members, we only have three seats occupied for this particular item, and thus can’t hear the appeal until at least one vacancy is filled. Havelda stated that we cannot make decisions in a quasi-judicial manner without four Commission members present. This is a problem, and the Attorney’s office will look into possible solutions. The City Clerk has just posted for all vacant Commission positions, so now is the time to do some heavy recruiting. La Mastra expressed her feeling that we are in an unfortunate position. The by-laws are understood to, but we don’t want to leave an applicant hanging indefinitely on a project they need to move forward with. Havelda indicated she spoke with the Assistant City Clerk this morning, and there are conversations happening about the fact that this unworkable for many of our Commissions; the discussion also explored the possibility of allowing the vote of the majority of whom we have appointed. That has not been finalized at this point. Beals asked for clarification regarding the agenda item in question. Commission member Meyer discovered a discrepancy between the agenda item numbers. *The correct appeal number and agenda item are as follows: Agenda item 4, ZBA220013 (1309 Remintgton Street). Beals clarified/confirmed that the item La Mastra and Shuff are recusing themselves from is actually item #4, ZBA220013, 1309 Remington Street. That item will be tabled today. 1. APPEAL ZBA220008 Address: 811 W Mountain Ave. Owner: Cindy & Earl Caditz Petitioner: Steve Josephs, Contractor Zoning District: N-C-L Code Section: 4.7(D)(2)(a)(2) Project Description: This is a request for a variance to increase the allowable floor area in the N -C-L zone by 1,127 square feet. The total square footage allowed on the lot is 2,690 square feet, and the proposed alteration will result in a total floor area of 3,817 square feet. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that this item was tabled from last month’s meeting. Beals noted the property is near the corner of W Mountain and S Grant Ave, four lots in from the corner heading west. The request is to re -work the structure and maintain the existing square footage. The issue is the building is non-conforming as it exceeds allowable square footage for lot size. Once you self-demo square footage and build back, you are Land Use Review Commission Page 3 May 12, 2022 supposed to build back within compliance. During last month’s meeting, the applicant presented a different design with alternative bulk and massing of the structure. This request will include some self-demoing and reconstruction of the second floor, but within and generally close to the existing roof lines. Thus, the bulk and massing has minimal changes. Instead of taller wall increases along the second floor, the new construction will maintain the same outline that exists today. Beals presented side-by-side views of the existing structure elevations and those being proposed, noting the existing roof line is maintained. The design is attempting to stay within existing roof lines and wall heights, and re-work what is happening in the interior. Some window placements and sizes have been slightly modified. Beals went on to share pictures of the interior that were provided by the applicant, describing the existing vaulted area that doubles the square footage count. Additionally, there are some areas of low ceiling height, which under code also count as part of the total square footage of the residence. Application Presentation: Applicant representative Steve Josephs addressed the Commission and agreed to hold the meeting in a hybrid format. Josephs explained that the first request included 8-foot walls on the second floor, while the revised current design maintains the existing second roof line. The only thing they are proposing now closing in the vaulted area at the stairwell, which will add approximately 200 square feet of usable floor space. The applicant now feels there is minimal impact to the neighborhood, as there will be no discernable change to the existing size and mass. Exterior changes are minimal, consisting of slight changes in window size/placement as well as new detailing on the front façade. Chair La Mastra asked Beals for clarification, noting that what is included in the Board packet appears to be the same design as the one submitted last month. However, the slides presented by Beals to appear to describe a new design. La Mastra stated that if what was shown by Beals is the correct, new design, she is in favor. Commission member Meyer asked Josephs to confirm that the current plan is to not demo the existing roof, but to work within the existing roof structure. Josephs confirmed this as accurate. Beals indicated that he had received an email from a neighbor concerning this appeal and would read the email for the Commission. The email reads as follows: Regarding Appeal ZBA220008 Mr. Noah Beals City of Fort Collins Board of Zoning Appeals Dear Mr Beals, Please express to the Board of Zoning Appeals my dismay at, and ardent opposition to the variance request by the owners of 811 West Mountain Ave for an additional 1127 square feet on an NCL zone. This is a 42% increase. I could see a 2% to 5% increase, but this is clearly too large an increase of floor area ratio for this lot. Otherwise, why do we have zoning districts? Thank you, Bill Whitley 618 W Mountain Ave Fort Collins CO 80521 Land Use Review Commission Page 4 May 12, 2022 Commission member Shuff asked Beals if staff could respond to the sender and indicate that square footage is an existing condition as a means of clarification. Chair La Mastra confirmed that with the newly submitted design, the applicant would be maintaining the existing roof line and only changing the interior of the house. Josephs confirmed that to be accurate. Shuff stated his appreciation for their willingness to work within existing confines, since this exceeds the Land Use Code by quite a bit. Shuff commented he felt comfortable approving this request, in that we are really not changing the condition, and hopefully the homeowner gets what they want with a cleaned-up remodel of that existing condition. Commission Discussion: Commission member Lawton commented that the applicant has come back with pretty much all that was asked of them at last month’s hearing. The current design looks great and does not appear to have problems. Commission member Meyer seconded the opinion put forth by Lawton, noting the proposed changes are minimal. Meyer stated he would be comfortable approving the request. Chair La Mastra commented even the exterior is improved from what was shown last month. The gable roof provides variation along the side elevation. La Mastra acknowledged the concerns of the neighbor, however at this point there is not impact on street-side elevations other that changing window placements. La Mastra is in support of the new design. Commission Member Shuff made a motion, seconded by Lawton to APPROVE ZBA220008 as submitted by the applicant with the current re-design. Approval is basedt on the fact that the variance is not detrimental to the public good; existing wall heights and building height will be maintained; the footprint of the existing structure does not change, therefore the variance request will not diverge from the standard but in a nominal and inconsequential way when considering the context of the neighborhood and will continue to advance the purpose of the Land Use Code contained in section 1.2.2. Yeas: Lawton, Shuff, Meyer, La Mastra Nays: - Absent: McCoy THE MOTION CARRIED, THE ITEM WAS APPROVED 2. APPEAL ZBA220011 Address: 4215 Fox Grove Dr. Owner: Melody Homes (dba DR Horton) Petitioner: Derek Hofferber, VP of Construction Zoning District: L-M-N Code Section: 3.5.2(E)(2) Project Description: This is a request to allow a newly constructed house to encroach a total of 2 feet into the required 15- foot corner side setback. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is in a newer subdivision (“Fox Grove”), which is currently being built out. It is located at the corner of a new intersection being built; this lot is a bit larger than the others in the subdivision. The current request is for encroachment into the street-side setback. The house as constructed was built into the street-side setback along Vixen drive. Beals presented three site plans (Original, Revised, Land Use Review Commission Page 5 May 12, 2022 and Constructed), as means of explaining what happened to cause the structure to be built in the street-side setback. The original site plan came in with a three-car garage with a seven-foot setback to the west property line. The plans were revised to remove the three-car garage, and the side setback pushed to ten feet. What was constructed was a house with a three-car garage but starting with the west side 10-foot side setback. That ended up pushing the rest of the car to the east, which caused the structure to encroach on the street-side setback. Beal presented photographs of the house as it currently sits on the intersection of Fox Grove Drive and Vixen Drive, showing the three-car garage and existing encroachment into the street-side setback. Beals noted the encroachment does not encroach into the easement but is within the setback. Chair La Mastra posed a question regarding the Staff findings contained within the Staff Report, which notes a six-foot fence could be constructed within the fifteen-foot setback. La Mastra asked Beals why that was noted, and if that is indeed allowed within the HOA rules of the development. Beals responded that the fence was noted in the Staff Report because the setback is usually there to prevent a structure from looming into the public right-of-way. A six-foot fence can generally be within a side setback, usually within two feet of the back of sidewalk. That may be more looming than this two - foot encroachment. As far as the HOA requirements, the city is not aware of those guidelines. Commission member Lawton asked Beals when this issue discovered. Beals explained with single unit structures, when newly constructed, they require an Improvement Lot Certificate (ILC). That is performed by a surveyor and then submitted to the city at the end of construction in order to obtain a Certificate of Occupancy. ILCs are typically not seen by the city until the end phase of construction. Beals stated he is not sure of when exactly the applicant themselves became aware of the issue. Commission member Meyer noted the original design showed a three-car garage, while the revised plan included a two-car garage. Was that change made in response to a city request during the planning review process? Beals responded the change was not made based on a city request, as approval had been granted for a three-car garage option that had a seven-foot setback to the west side and maintained the 15-foot setback on the east side. The applicant then re-submitted for revision. This may be because the purchaser requested a two- rather than three-car garage. The applicant maybe able to speak to that change directly. Meyer asked Beals if this were denied, what would the next steps be considering the structure has already been built? Beals indicated that if the appeal were denied, the applicant may want to appeal that decision to Council. Or, if they did not want to appeal, they could perform reconstruction of the existing structure. Application Presentation: Applicant Derek Hofferber addressed the Commission and agreed to hold the hearing in a hybrid format. Hoffberer stated there was a misunderstanding when originally submitting for the permit, explaining that his permitting department received notification that a three-car garage would not be allowed on the corner lot. That prompted them to re-submit for the two and a half-car garage. The issue was subsequently cleared up that a three-car would be allowed to, and the design was again re- submitted with a three-care garage design. That design was ultimately constructed. Regarding the ILC, Hofferber explained that during construction, they performed a form check when the foundation was poured to ensure that everything was staked and excavated properly and in the right location. During inspection, it was missed that the home was moved over a few feet. The ILC was not submitted until applying for the Certificate of occupancy, at which time it was realized that the home was moved over a few feet. Land Use Review Commission Page 6 May 12, 2022 Hofferber explained that the hardship in this instance would be that if denied, the home would potentially need to be demolished and rebuilt in entirety. Therefore, a variance would be appreciated. The structure does not appear to be blocking any existing site lines. The existing split-rail fence is an HOA requirement, and a six-foot privacy fence would not be allowed. Hofferber indicated that his surveyor, Jon Lane, is available for any technical questions or explanations regarding the survey work and/or the Improvement Lot Certificate. La Mastra indicated that the Commission would not need to hear from Lane at this time. Commission Discussion: Commission member Lawton stated that because the structure is already built, these decisions can become controversial. If the petitioner had come before the Commission beforehand, there probably would not be that much trouble in approving the setback encroachment that currently exists. Vice Chair Shuff agreed with the sentiments offered by Lawton, stating that the fact that is only encroaching into a setback and not an easement helps with minimizing the impact. It is a two -story wall on a corner, which creates a presence, but it is not easily noticeable. Hopefully moving forward, the builder and surveyor can be a bit more careful in their double-checking. Commission member Meyer stated his willingness to approve the request, commenting the thoughts of Lawton were well-put, in that if this request had come before the board prior to construction, the encroachment in to setback would most likely be approved as nominal and inconsequential. Impact on sight lines and the corner are very minimal. Chair La Mastra noted she would not support this if it came in this way, due to the fact that they are exceeding their other side-yard setback. However, La Mastra is pleased the surveyor did confirm there are no sight-line issues, because that is main concern with corn er lots. La Mastra has more understanding of how this occurred, and the existing structure not detrimental to the public in anyway. Therefore, La Mastra is comfortable supporting the request. Commission Member Lawton made a motion, seconded by Shuff to APPROVE ZBA220011 for the following reasons: the variance is not detrimental to the public good; a six-foot fence can be constructed in the 15-foot setback and there is not an existing neighborhood to the south of the property. 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 contained in Section 1.2.2. Yeas: Lawton, Shuff, Meyer, La Mastra Nays: - Absent: McCoy THE MOTION CARRIED, THE ITEM WAS APPROVED 3. APPEAL ZBA220012 Address: 1020 E Lincoln Ave. Owner: Freddy Bensch Petitioner: Kristin Zipkin, Signage Provider Zoning District: D Code Section: 3.8.2(G)(2) Project Description: This variance has two requests: 1) To allow a freestanding sign in the Downtown Sign District to be approximately 2.66 feet over the maximum allowable 11 feet. 2) To allow light fixtures that point upward; required BUG ratings prohibit lights that point directly up into the sky. The maximum allowable uplight rating would be a U1. Land Use Review Commission Page 7 May 12, 2022 Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is located on the corner of E Lincoln Ave and S Lemay Ave. The building was originally constructed as Fort Collins Brewery; it was later taken over by Red Truck Brewery; that has since been purchased by Sweet Water Brewery. The request is to install what the Land Use Code considers a free-standing sign. The sign is over maximum allowable height per regulations, and it came with lighting that does not fit our current lighting standards. The timeline of events is proceeded first with a sign permit was submitte d to re- brand the building and the brand on behalf of new ownership. The sign permit application did include the statue, which is a free-standing sign because it is their primary marketing image. The city notified the applicant that the free-standing sign would be an issue; they removed that element from the sign permit and proceeded with permitting the rest of the signs. Upon inspection of the permitted signs, it was found that the free-standing sign had been installed, though it did not receive approval. The applicant is here today seeking variances for the two standards that did not allow the free - standing sign to be approved initially. If the applicant does receive a variance, they would still need to pull a sign permit to have it formally approved. If variances are not granted, the free-standing sign would need to be modified and/or adjusted to meet those requirements. Beals pointed out images from the Sweet Water website, noting their marketing symbol does employ the same “trout” image that is utilized in the free-standing sign element. Beals also noted that the previous owner, Red Truck Brewery, previously employed a free-standing sign element in the form of a red vintage pick-up truck. That free-standing sign was in compliance with the Land Use Code. Beals commented that the other issue to mention is the manner sign heigh is measured; total height is measured from street grade to the top of the sign. If there are grade changes that happen, such as a hill, that will impact the overall sign height as well. Beals stated he believed the owners thought they were constructing the sign to the right height, but due to grade changes the total height is actually over the allowable maximum. In this case, the sign is further set back than normal, pushed back toward s to the building in order to accommodate an existing retention pond and deck. Regarding the requested variance for uplighting, Beals noted the Land Use Code lighting standards were updated recently and now require a BUG rating. BUG stands for Backlight, Uplight, and Glare. In this LC1 zone, we are looking for lights to have little amounts of BUG. The problem with the lights installed on the sign is that they are mounted on the ground and point up, which exceeds the lumen standards that are allowable. When a light is pointed up, the uplight is very prominent. Even before the recent updates to BUG rating, the Land Use Code did contain a restriction on uplighting. Beals again clarified that the applicant is seeking two variance requests: one for overall he ight of the sign, and the second to allow for uplighting. Beals presented pictures of the existing sign, both looking east along Lincoln Ave as well as seen head-on. Beals commented there are other options available for lighting of the sign, including existing exterior deck lighting, wall sconce lighting that could be pointed down, and in some instances free-standing signs may attach a light to the top of the free- standing sign which points downward. Commission member Lawton asked Beals to clarify how the trout statue qualifies as a free-standing sign, as it does not appear to employ any lettering or text. Beals explained that when an entity’s marketing lettering, colors, or symbols are used, the element is then considered a sign. Commission member Meyer ask Beals if the sign was attached to the building, would it no longer be exceeding the height requirement for a free-standing sign? Beals commented there are maximum height requirements for wall signs as well. Depending on the width, which this sign may exceed, a vertically oriented wall sign is allowed to be taller than a flush-wall or cabinet-sign. If the sign were attached and considered a wall sign, it would still likely exceed the requirements in other ways. Land Use Review Commission Page 8 May 12, 2022 Lawton asked if the same sign standards applied to the water tower element, which appears to have branding and logos applied to the tank. Beals responded that staff have been told the water tower is functional, and therefore is considered a structural element rather than a free-standing sign. The branding images on the water tower are each considered to be wall signs. Application Presentation: *No applicant or representative were present to address the Commission. Resident Michelle Haefelle addressed the Commission and agreed to participate in the hearing in hybrid format. Haefelle stated that it is bad public policy to grant variances after a violation is committed, and the City does this far too often. Haefelle commented her preference would be that the entire request be denied, but at the very least please do not permit the upward directed lighting. Haefelle stated there is much scientific evidence which finds that light pollution is harmful to ecosystems, specific animal species, and humans. The city has for decades pursued policies that promote environmental protection, and the lighting code is an important part of that effort. Haefelle continued to give examples of the harmful effects of l ight pollution, including that it is especially detrimental to hunting and migrating birds who navigate by moonlight and starlight; has been shown to be a driver of insect declines, which in turn affects insect eating species, mostly birds, but also some animals and also plant pollination; is detrimental to fish spawning activities in rivers as well as affecting some coral reef species. Haefelle noted that humans are also impacted by light pollution, which can disrupt sleep, which in turn has several health consequences, including cardiovascular and immune system impacts. Haefelle concluded her remarks by stating she would like the Commission to please deny the request for upward pointing lighting on this overly large sign. Chair La Mastra thanked Haefelle for her comments. Commission Discussion: Commission member Lawton asked if discussion was ok without the applicant present; Chair La Mastra responded she did not believe the applicant needed to be present for discussion and/or decision, asking Assistant Attorney Claire Havelda for additional comment or counsel. Havelda stated applicants always have the option of attending or not, and if they choose not to the Commission is welcome to infer against them in a civil matter. Chair La Mastra commented that without the applicant asking for a continuance and, with it being allowed that they are not present to add any further information to what was submitted in the packet, she advised that the Commission move forward with discussion and a motion. Havelda asked if she could provide clarification before discussion moved forward, commenting there was a mistake in the packet with reference to the code site. Havelda stated the proper code site to be “Lighting Requirements”, Land Use Code 3.2.4, and the reference to the Sign Code should have been 3.8.7.2(G)(2). Commission member Lawton commented that in deference to the last request, the work has already been done and that’s fine. The request and the explanation before this was done is pretty clear and then to come back and find that it's been done anyway, is A little upsetting. Lawton commented he absolutely agreed on a lot of the lighting issues, and and appreciated the comments of Haefelle to point that out. Lawton commented on the height restriction, stating that it seems like it could be something that was accommodated through design, rather than just coming in saying was you know it's approved what's already been put up so there's not a lot favorable for him in this request. Land Use Review Commission Page 9 May 12, 2022 Chair La Mastra asked Beals if the sign is located on a raised platform to r aise it above the height of the railing. Vice Chair Shuff commented there are engineered drawings in the packet showing the sign is on a pedestal and the pedestal is on the deck. Beals confirmed there is a raised portion of the deck for the pedestal of the sign. Commission member Meyer commented he agreed with the assessments given regarding uplighting, and certainly would not have approved that. Meyer stated that it the fish could have been installed two feet lower, they just chose not to. However, one could visualize what the fish would look like two feet lower, and it doesn’t seem that there's much of an impact for being two feet taller. Meyer stated the visual impact is negligible in his mind. Regardless of the where the sign is located, it is still going to be a big fish. La Mastra commented this is set back much further, and if you think about it in the same way as the impacts, where we allow wall heights to increase as that setback increases, it could be seen in a similar context for this as far as the visual impact of it. It is different than it being right up next to the right of way and taller. Meyer commented that if the fish were installed to the proper height but was also installed to a much closer degree to the corner of property, which is allowed, then it would have a much greater impact that it does now. Therefore, Meyer feels that the setback actually helps with that extra height. La Mastra agreed with Haefelle’s input regarding the frustration of being asked to approve a violation after it has already been installed, adding that she would hope that we can say that give the benefit of the doubt that there was a miscommunication in what part of the signed package was approved and not approved when they came in, and hope that it was just a miscommunication and nothing that was somebody was intentionally doing to try to get around that. La Mastra stated that she felt comfortable with this being set back further, but was not comfortable with the lighting, and that portion of the request needs to be denied. Vice Chair Shuff thanked members for their discussion and agreed that the lighting request ought be denied and needed no further discussion. Regarding what is allowed for the free -standing sign to be installed against the right of way, it would be allowed. The fact that it is setback helps. However, it is a large percentage. La Mastra asked Beals if he could provide the minimum permitted setback and what this is actually set back too? It may be less than 20% of the actual minimum. Shuff agreed, commenting you would also need to examine the actual sight lines. If the sign were closer to the right of way, it would have a larger impact. Compared to that, it seems to be nominal and inconsequential. Also, lowering the sign two feet would not really change the existing visual impact. Based on those findings, Shuff would be comfortable with approving that request, on the justification of either nominal or inconsequential or equal to or better than. La Mastra agreed that approval based on the justification of equal to or better than may be a stronger case. Beals offered that the minimum setback is 12 feet, and that the sign was currently setback more than twelve feet. La Mastra stated that she estimated, based on the site plan, the setback to be approximately 40-50 feet. Therefore, equal to or better than would make sense in the context of this sign for approving the height variation. One could also argue that it's nominal and inconsequential because you don't notice the height difference when it's set back significantly further, so either one could be argued appropriately within the code. Commission member Lawton commented that it's unfortunate that the city petitioner isn't here because we could hear the story behind why this is put in the way and whether it was a miscommunication or whether it was just a don't care kind of thing. Lawton stated that with the setback, he could follow Land Use Review Commission Page 10 May 12, 2022 along that it would be more impact even meeting the height, but clos er to the street where it would have more impact than where it is currently. Chair La Mastra nominated Vice Chair Shuff to make a motion. Havelda suggested that because there are two variance requests, it may be easiest to make two separate motions. Commission Member Shuff made a motion, seconded by Lawton to APPROVE ZBA220012, part one of request, under code section 3.8.7.2(G)2 based on discussion, staff presentations and based on the variance not being detrimental to the public good and is considered equal to or better than an approved freestanding sign location that could have been located closer to the right of way and allowed. Additionally, there is the detention pond in front of building making it difficult to locate the sign off of the elevated deck. Therefore, the variance request will not diverge from the standard, but in a nominal and inconsequential way when considered in context of the neighborhood and will continue to advance the purpose of the Land Use Code contained in section 1.2.2. Yeas: Lawton, Shuff, Meyer, La Mastra Nays: - Absent: McCoy THE MOTION CARRIED, ITEM WAS APPROVED Commission Member Shuff made a motion, seconded by Meyer to DENY ZBA220012, part two of request, under code section 2.10.4(H) based off staff recommendation, staff presentation, and Commission discussion. The denial is based on the findings that that the direct uplighting has negative impacts to the purpose of the standard and increases light pollution; there are other locations in place to illuminate the sign, and there are already some lights in place on the building in that area. Havelda offered clarification, stating that is the correct standard for the review. The Land Use Code that the applicant is looking to deviate from is 3.2.4, which is our exterior site lighting. Yeas: Lawton, Shuff, Meyer, La Mastra Nays: - Absent: McCoy THE MOTION CARRIED, THE ITEM WAS DENIED 4. APPEAL ZBA220013 – APPEAL TABLED DUE TO RECUSAL AND LACK OF QUORUM Address: 1309 Remington St. Owner: Dan and Martha Connors Petitioner: Jordan Oberman, Designer/Builder Zoning District: N-C-L Code Section: 4.7(D)(2)(a)(2) Project Description: This is a request for three variances to rebuild an accessory building (garage): 1) Request to exceed the total square footage allowed by 389.2 square feet. The maximum permitted is 2,394.8 square feet. 2) Request to exceed the total square footage allowed in the rear half by 139.25 square feet. The maximum is 871.75 square feet. 3) Request to exceed the eave height for an accessory building without habitable space by 8 feet. The maximum allowed along the side lot line is 10 feet. Land Use Review Commission Page 11 May 12, 2022 5. APPEAL ZBA220014 Address: 4007 & 4009 Rock Creek Rd. Owner: Jumbuck LLC Petitioner: Richard Gray, Contractor Zoning District: U-E Code Section: 4.2(D)(2)(d); 3.8.19(A)(6) Project Description: This is a request for a 2.6-foot setback which is encroaching 17.4 feet into the required 20-foot side setback. Staff Presentation: Beals presented slides relevant to the appeal and discussed the variance request, noting that the property is located near the corner of Rock Creek Drive and Strauss Cabin Road, and sits in the cul- de-sac of Sun Glow court. Beals noted that aerial views show the foundations that have been poured for the property. The request is for a setback into the rear-yard setback. The original approval of this development granted a reduction from the U-E, which normally requires a 20-foot rear-yard setback. The original development approval approved a 10-foot setback, so they had already received a 10-foot reduction. This request is for an additional couple feet into the 10-foot setback. Beals also pointed out there is a tract of land that will be in common ownership with the HOA measuring approximately 20 feet wide between the subject property and the next property that has a residential structure. Beals presented a site plan showing the request and explained that window wells do not count towards the encroachment, but the above grade structures do. There is significant encroachment, approximately 8.5 feet at the corner. There are some cantilevered elements, which are not counted against the encroachment. Beals also noted the site was approved for a duplex, which is a two -unit building joined in the middle by a storage shed or similar. The current property is under construction currently. Beals presented the original site plan which shows the tract of land between lot 1 and lot 2, so the visual impact that increased encroachment here may be minimal as there is already a 20-foot setback in between those two property lines. The original development plan did show some proposed building envelopes and it was definitely proposed that that those structures be right up against that that 10-foot setback because there wasn't a much room towards the front to move any further north. Chair La Mastra stated she was confused, because on the first page of the staff report what the variance requests states is encroachment into the side setback, but then the application request is talking about a variance to the rear setback. La Mastra also stated her confusion on the corner, and asked for clarification regarding which side is this addressing, and to clarify which is considered “side” and “rear” here. Beals responded that the front of the structure does face Rock Creek Drive, and the western structure addresses off of Rock Creek. The rest of the structures will be addressed off of Sun Glow Ct. For this structure, the north property line is the front, and the south property line is considered the rear. Vice Chair Shuff asked if Tract A functioned essentially like an alley. Beals responded there was not vehicle access and may be covering a storm water pipe/outlet within an easement. The are is unbuildable. Commission member Lawton asked if we may see additional lots later on, as they appear to be right up against the property lines. Beals responded that the aerial picture is pretty accurate as to what is on-site currently. This is the first property that has needed a variance. There is another lot that is currently under Director Review. Other lots are under active construction at this time. Beals stated that Land Use Review Commission Page 12 May 12, 2022 for the most part the developer has realized that this could be a potential issue and is trying to ta ke care to accurately pour the foundations. There is a chance that we could see some of these lots request a variance in the future as build out continues. Application Presentation: Applicant Richard Gray, contractor, addressed to participate in the hear ing in a hybrid format. Gray stated that the owner bought the property with the foundations already up and done, and Gray came in to do a side setback and discovered they were intruding into the setback, and variance was needed in order to continue. Vice Chair Shuff aske Gray to confirm his understanding that the foundation was poured under previous ownership, and that Gray was asked to come in at a later date by new owners to finish the job. Gray indicated that to be accurate. Commission Discussion: Chair La Mastra referred back to the site plans presented by Beals, stating her assumption that the gray shaded areas depicted in the plans represented the areas of the walls that are encroaching. La Mastra commented one thing to keep in mind is that typically, when we talk about those setback encroachments, we talked about the percentage of encroachment to along the entire property line, and this appears to be pretty nominal with those little slivers of walls. Vice Chair Shuff agreed with La Mastra’s comments, noting that the encroachment created by the walls was only about 15%, or 1.5 feet over 10 feet. Shuff commented that it was good to hear that the current owners inherited this issue and are now trying to perform their due diligence. 15% on a ten-foot setback is within reason of nominal and inconsequential. It is also helpful to know that the Tract A area can never be built on and provides additional buffer to the south. Shuff stated his willingness to support a motion to approve the request. Commission member Meyer added that in addition to Tract A, the wedge shape of Lot 2 adds even more setback from the adjacent structure. Meyer would be comfortable supporting the appeal. Commission member Lawton stated that this is similar to earlier appeals, where considered on its own merit of the original owner had come and asked for this variance, considering the presence of Tract A, the Commission probably would have looked favorably at the request. Additionally, understanding that this issue was taken over and wasn’t the fault of the current petitioner, Lawton would be comfortable supporting the request. Commission Member Shuff made a motion, seconded by Lawton to Approve ZBA220014 based on Code Sections 4.2(D)(2)(d) and 3.8.19(A)(6) based on the staff presentation and applicant presentation and based on discussion of the Commission, we find the variance is not detrimental to the public good; there is a tract of land at separates their residential properties by 20 feet; a six-foot fence could be placed between the house and the property line. Therefore, the variance request will not diverge from the standard but in a nominal and inconsequential way when considered in context of the neighborhood and will continue to advance the purpose of the Land Use Code contained in section 1.2.2. Yeas: Lawton, Shuff, Meyer, La Mastra Nays: - Absent: McCoy THE MOTION CARRIED, THE ITEM WAS APPROVED • OTHER BUSINESS Beals mentioned to the Commission that the application process for Commission vacancies has been opened, and staff will be sending out a link to the application process to members for recruitment purposes. Additionally, we do have items for next month’s agenda.