HomeMy WebLinkAboutZoning Board Of Appeals - Minutes - 05/14/19980 • • 9
A regular meeting of the Zoning Board of Appeals was held on Thursday, May 14, 1998, in the
Council Chambers of the Fort Collins Municipal Building, at 300 LaPorte Avenue, Ft. Collins.
BOARD MEMBERS PRESENT:
Martin Breth, Robert Gustafson, Dan Keating, Eva Lieser, Diane Shannon and William
Stockover
1067411311
Tom Sibbald
STAFF MEMBERS PRESENT:
Peter Barnes, Zoning Administrator
Paul Eckman, Deputy City Attorney
Delynn Coldiron, Staff support to Board
AGENDA:
1. ROLL CALL:
The meeting was called to order by Chairperson Shannon and roll call taken.
2. The Minutes from the April 9, 1998 meeting were approved.
3. APPEAL 2211 —Approved with conditions:
Address: 3024 W. Prospect Road
Petitioner: Brad March, Attorney representing Charles Spengler, Owner
Zone: RL
Section: 3.8.3 (1)
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Back round:
The variance would allow a home occupation to be conducted in a detached building and
would allow more than one additional non-resident employee/co-worker. Specifically, the
applicant desires to construct a 912 sq. ft. addition to the existing detached building at the
rear of the lot and primarily use the new addition for the "clean room design" business with 2
non-resident co-workers instead of the one allowed. This appeal was denied by the Board on
March 12, 1998. However, at the April 9, 1998 meeting, the applicant petitioned the Board
for a re -hearing based on new evidence. The Board granted the re -hearing request, and the
re -hearing was scheduled for the May 14, 1998 agenda.
Petitioner's Statement of Hardship:
Due to the nature of the business, it is necessary to have a large, open -room area to do layouts
and backdrops for video taping. Additionally, this area needs to be located a considerable
distance from Prospect Road due to the need for a quiet environment that is necessary for this
type of business. The home doesn't have room with high enough ceilings to be suitable for
use, and the home is too close to Prospect to provide the quiet needed. (See additional
information submitted by Petitioner).
Staff Comments:
The Board has several options regarding the disposition of this appeal. 1) The Board can
deny the entire request; 2) the Board can grant the entire request; or 3) the Board can grant
part of the request. Granting part of the request could also include the granting of a variance
to use the existing detached garage only, with no addition. The Board has granted detached
building variances for home occupations in the past when the building was already existing.
Peter Barnes began by reviewing portions of the Home Occupation Ordinance related to the
number of allowable non-resident employees, and the use of detached buildings for business
activity. He mentioned that the Ordinance limits the number of non-resident employees to
one, and requires all aspects of a home occupation business to be conducted entirely within
the dwelling. In this appeal, the applicant has requested a variance which would allow two
non-resident employees/co-workers, authorization to conduct business activity in a detached
building, and authorization to construct a 912 sq. ft. addition to the detached building.
The Board, in the past, has granted a number of variances for conducting business activity in
a detached building; normally, the building has been existing. This case is somewhat unusual
in the fact that an addition is being requested to the existing detached building. The applicant
is currently conducting business activity in the detached building and has done so for some
time.
Barnes presented slides relative to this variance request. The home is located on the north
side of West Prospect, several houses removed from Overland Trail. The property to the east
was granted a variance by the Board to use a detached building in conjunction with their
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roofing business. The property to the west has also historically been used as a home
occupation with business activity occurring in a detached building. The applicant's existing
building is quite large. The applicant's proposal includes removing the small shed next to the
detached building, and, in its place, constructing an addition to the current building. Upon
completion of the addition, it is the applicant's intent to use a portion of the existing detached
building as a personal garage and relocate business activities to the space provided by the
addition. The new addition would be 15' from the rear property line which is in compliance
with the required setbacks.
Board Ouestions:
Chairperson Shannon mentioned that at the initial hearing of this appeal in March, the Board
was concerned about three things: 1) approval of two non-resident employees and the fear
that this might set a precedent that was never intended for an in -home business; 2) objections
to the design of the new structure because of the addition of three garage doors and the
"service station" feel this would give the building; and 3) that the increasing amount of
business activity might constitute a commercial enterprise rather than a home occupation and
should possibly be subject to the rules and regulations that govern commercial entities.
Chairperson Shannon mentioned that it appears in this case that there is increasing
commercial business activity in a residential zone. Since much of the surrounding properties
also engage in commercial activity Chairperson Shannon asked if it might be more
appropriate to rezone this area, rather than grant a variance. Attorney Paul Eckman
mentioned that in order for rezoning to legally occur, it would have to be shown that the
rezoning complies with the City's Structure Plan map, the map would have to be amended, or
there would have to be a finding that circumstances have changed in the neighborhood.
Since it appears that the activity in this neighborhood has not changed substantially over the
years, rezoning efforts would need to focus on compliance with the City's Structure Plan
map, and if this was not possible, then on amending the Structure Plan map.
Barnes mentioned that rezoning efforts may be of concern to the neighbors since it would
limit their ability to control the type of business activity that could occur in their
neighborhood since many different uses would then be allowed, as opposed to the zoning
staying the same and home occupation being the only type of "commercial" use allowed.
Applicant Participation:
Attorney Brad March spoke on behalf of applicant, Charles Spengler. March mentioned
that this case has, to date, been treated as a request for a variance of a home occupation but
perhaps is really a case of an ongoing non -conforming use from the time it was annexed from
the County.
March described Mr. Spengler's intended use for the property. He also mentioned that Mr.
Spengler would be willing to eliminate or reduce the number of garage doors from what has
been proposed. The doors were included in an effort to have easy access for shipping and
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delivery from the applicant's business. March relayed the sentiment of several of the
neighbors, which was reflected in the Affidavits that were previously submitted to the Board.
On the issue of having two employees, March mentioned that there had been a concrete
finishing business at this property prior to the time Mr. Spengler purchased it. It was
March's understanding that the concrete finishing business had more than one employee, and,
in light of this information, his client was not requesting a variance from the home
occupation, but simply continuing a use that has been ongoing since at least 1977. It was his
opinion that the Board would not be creating a bad precedent by approving either of the
things requested in this variance based on the unique circumstances involving this property.
Board Discussion:
Board Member Gustafson mentioned that he could see no problems with the issuance of this
variance. There has been a home occupation business in the detached building for a number
of years and he reiterated that the Board had granted variances for business activity in
detached buildings in the past. In Mr. Spengler's case, having more than one employee
would not impact the neighborhood since there is plenty of room on the property to provide
off-street parking for his employees.
Board Member Breth supported the variance request due to the fact that the area is potentially
moving toward commercial activity, the property lot is large enough to sustain the requested
business activity, parking is not a problem, and due to the hardship statement provided by the
applicant.
Board Member Lieser restated her concern from the March meeting that the proposed
additional garage doors will make the detached building look like an auto repair building and
the unfavorable impact this could have on the neighborhood. She mentioned that she could
be in favor of the variance, but would want to attach a condition to the variance that it would
apply only to the current use of a clean room design business.
Attorney March reiterated that the applicant would be willing to eliminate the proposed
garage doors, or, alternatively, reduce the number and size of the garage doors if that would
be acceptable to the Board. However, he encouraged the Board to not attach any conditions
that would stipulate that the variance applied only to the current use. He mentioned that the
applicant paid a premium at the time he purchased the property for the business use that was
allowed. Adding this restriction would significantly reduce the value of the property should
the applicant ever want to sell it.
Barnes mentioned that any development plan that is approved by the City, if it is approved
for a specific use, or range of uses, must go through an approval process at the time a
proposed use falls outside of what was approved. The issue of non -conforming use is a
complicated issue. It is not clear that this situation constitutes a non -conforming use or that a
non -conforming use gives the owner of the property unrestricted authority to conduct any
type of business from the property, etc. Staff would need to explore this further. If, however,
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this is a non -conforming use and the applicant wants to expand the business, the applicant
would need to address this issue with the Planning and Zoning Board.
In response to a question from Board Member Breth on conditions, Attorney Eckman
instructed the Board that they could place conditions on the number of allowable employees
and recommended placing conditions on the use instead of on the corporate owner since
ownership changes. He reiterated that if the Board is persuaded that the applicant's situation
constitutes a non -conforming use, then the proper forum for the applicant's request would be
the Planning and Zoning Board.
Attorney March mentioned that he was not sure if the applicant's current situation constitutes
a non -conforming use; however, he wanted to present this information to the Board to
demonstrate that there had been ongoing business activity on this property, as well as
neighboring properties, for some time. Applicant is not opposed to restricting the number of
employees, but would appreciate some flexibility on business use so that it does not hinder
his ability to sell his property in the future.
Board Member Stockover asked if the applicant owned the property before or after
annexation. Barnes mentioned that he owned it well after it was annexed. Stockover
mentioned that some of the original concerns he had with this request were that the applicant
was enlarging a business which could potentially increase car traffic, delivery traffic and
business activity in the neighborhood. The decision would allow commercial development
without collecting any fees and goes against the current "pay for growth" mode that is
existent in Ft. Collins.
Attorney March responded by saying that part of the existing detached building will be used
by the applicant as a personal garage, so the addition will constitute only limited expansion,
if any, of the current business. He also stated that this business is a very low traffic business
and that the applicant spends a significant amount of time traveling. The neighbors that have
been contacted are in favor of removing the shed that currently exists and replacing it with a
more aesthetically pleasing building. If the Board concludes that this business cannot be
expanded, the applicant is willing to accept that; however, the Board's March 12, 1998
decision limits the applicant's ability to carry on the business he has conducted for more than
six years.
Board Member Breth asked for clarification on using part of the existing building for a
personal garage. If the applicant needs a garage for personal use and the existing shed needs
to be removed, why doesn't the applicant simply build a garage to replace the shed?
Attorney March mentioned that the applicant could do this; however, since the. applicant will
be building a new structure, the applicant desires to construct a building that better suits his
business needs. Barnes mentioned that in conversations he has had with the applicant, Mr.
Spengler mentioned that originally he had planned on using the new building as a personal
garage. However, because the location of the new building is on the opposite side of the
property, it is much easier to maneuver vehicles, etc., if he simply uses part of the existing
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building as the garage, and constructs an addition to the building to accommodate his
business needs.
Board Member Stockover asked about the location of dumpsters and the amount of outside
storage that would be necessary. Mr. Spengler mentioned that there is not a big need for
outside storage. The existing shed houses some packaging materials, lawnmowers, etc. The
tarp shown on the slides is covering a hot tub, not materials for the business. The applicant
also mentioned that the dumpsters are a matter of convenience and could be eliminated if
needed.
Board Member Stockover asked for clarification on manufacturing activities that are
conducted by applicant's business. Mr. Spengler mentioned that the business builds
prototypes/models of clean rooms. Various uses for the clean rooms are also videotaped on
the business premises. The business is basically a high-tech design group for clean rooms.
Chairperson Shannon mentioned that she supports the applicant's in -home occupation and
sees no problem with two employees. She also supported a condition to this variance that it
apply only to the current business use and would need to be reviewed if the business use
changed.
Board Member Gustafson made a motion to approval Appeal 2211 to allow a home
occupation in the new detached building, with two non-resident workers, and added the
condition that this variance applies only to the clean room design business activity that is
currently conducted on the property. Any changes require a rehearing by the Zoning Board
of Appeals.
Board Member Lieser seconded the Motion.
There was brief discussion on amending the Motion. Board Member Gustafson made a
motion to amend his first motion to include a rehearing by the Zoning Board of Appeals or
whatever board may be charged with that responsibility in the future, in the event that a
different use is proposed.
Board Member Stockover seconded the Motion.
Vote:
Yeas: Breth, Gustafson, Keating, Lieser, Shannon, Stockover
Nays: None
Appeal 2211 was approved to allow the applicant to build the addition, to have two non-
resident employees, and to limit business activity to the current clean room design business.
Note per Attorney Eckman: The Board's analysis was purely on the basis of a variance to a
home occupation and not on the analysis of a non -conforming use.
90
4. APPEAL 2216 — Approved:
Address: 511 Cherry Street
Petitioner: Lewis Jose Chavez, Owner
Zone: NCM
Section: 4.7 (E)(3)
Background:
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The variance would reduce the rear setback requirement for a proposed 2-car detached garage
from 15' to 11'.
Petitioner's Statement of Hardship:
The proposed size of garage is necessary for owner's vehicles, and to meet front setback the
rear needs to be reduced to 11'. The lot is shallow (only 50' deep).
Staff Comments:
None.
Barnes began by stating that this particular property is adjacent to an alley on the right, is
shallow and fairly small. The proposal is to construct a new garage to the left of the house.
The proposed garage complies with the front setback requirement of 15' and the side setback
requirement of 5', but asks for a reduction in the rear setback requirement from 15' to 11'.
The 11' setback for the new garage would be slightly greater than the current setback of the
house and the existing storage building on the right. Both of these are non -conforming to
current zoning requirements, but have been there for a long time and were built under
previous zoning ordinances. The garage cannot be moved any further towards the street
because zoning requires a queuing space that equates to at least 19' of driveway depth behind
the sidewalk.
Barnes presented slides relative to this variance request. He mentioned that it is not
uncommon in the older part of town to see lot splits, especially on corner lots. This is the
case for the lot in question in this variance. The current rear setback was originally the side
setback of an adjacent lot.
Board Ouestions:
Board Member Lieser asked for the dimensions of the garage. Barnes responded 24' x 24'.
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Applicant Participation:
Applicant desires to build the garage to house his 19' long pickup truck. The garage he has
selected is a pre -fabricated garage from Sutherland Lumber. The next smaller garage is 20' x
20' and would barely have room to fit the applicant's truck. Applicant is currently having his
truck restored and does not want to store it outside.
Board Discussion:
Board Member Keating asked applicant if the garage would match the house. The applicant
said that it would.
Board Member Breth mentioned that this request falls under the criteria of a narrow lot. The
existing house and storage building are closer to the property line than the garage will be. He
could find no problems with granting this variance request.
Chairperson Shannon concurred with the above.
Board Member Lieser made a Motion that Appeal 2216 be approved due to the shallowness
of the lot.
Board Member Breth seconded the Motion.
Vote:
Yeas: Breth, Gustafson, Keating, Lieser, Shannon, Stockover
Nays: None.
Appeal 2216 was approved.
5. APPEAL 2217 — Approved:
Address: 7412 S. Lemay Avenue
Petitioner: Jerry and Elissa Duggan
Zone: UE
Section: 4.1(D)(2)(d)
Back rg ound:
The variance would reduce the required side yard setback along the north lot line from 20' to
15' in order to allow the construction of a detached garage/bam.
Petitioner's Statement of Hardship:
There is flood plain along the southern portion of the lot and the owner would like to stay as
far away from the flood plain as possible. Placing the building in compliance with the 20'
setback from the north lot line would result in the building being built on top of the sewer
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line. Moving the building further west would allow it to clear the sewer line, but then would
not leave enough room for hay trucks to maneuver.
Staff Comments:
None.
Barnes began by explaining that this property was in the Urban Estate zoning district and
under this district there are fairly substantial setback requirements. Usually, the lots are
much larger than what is found in other urban subdivisions for single family dwellings.
Therefore, there is generally adequate room on these lots to comply with the more substantial
setback requirements. The size of the lot in question is five acres. The flood plain exists
along the south lot line and along the rear of the property.
Barnes presented slides related to this variance. The house is set back a considerable distance
from Lemay Avenue. There is a ravine that goes along the south side and back of the lot and
is basically where the flood plain comes from. The adjacent development is Greenstone and
is also zoned Urban Estate, although the lots are not nearly the size of the applicant's lot.
The proposal is to extend the gravel driveway back along the side of the lot. The proposal
would remove the existing shed and construct in the same vicinity a bam/garage. The code
requires a 26' setback for the lot line in question. The applicant has stated that moving the
bam/garage forward will cause a hardship because it would make access to the bam/garage
difficult for hay trucks, maneuvering trailers, etc.
Board Ouestions:
None.
Apmlicant Participation:
Applicant stated that the location of the barn was planned at the time the house was being
built due to the angle of the house. This allows the applicant the ability to view the barn area
from her house, see her horse, etc. Changing the location of the barn would not provide the
applicant with the ability to do this. Applicant is also in need of additional personal garage
space. Because the covenants that govern her property allow for only one out building, it was
necessary to plan a bam/garage in one building. There is a sewer line that runs close to the
desired location of the bam/garage which also limits the applicant's choice for building
location. The applicant mentioned that moving the bam/garage forward in order to meet the
lot line setback creates a hardship because of the difficulty that caused in maneuvering hay
trucks and trailers into the bam/garage area. The flood plain area is not an option since this
would require break away fencing which would not be feasible for horses.
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Board Discussion:
Board Member Gustafson mentioned that this case seemed one of a self-imposed hardship.
On five acres, there are many locations that would be suitable for a bam/garage without
needing a variance. The sewer line could be moved. There are other options the applicant
could look at.
Board Member Lieser concurred with the above and mentioned that the Board needs to find
an absolute hardship in order to grant the variance.
Applicant mentioned that the appeal procedures refer to unusual and exceptional practical
difficulties in addition to undue hardships. Applicant feels that her request falls under the
exceptional practical difficulties.
Board Member Breth asked for clarification on whether or not a hay truck would be able to
back in to the bam/garage if it was moved forward to meet the required setback. Applicant
responded that theoretically a truck could maneuver into the area, but there is concern about
the ability to maneuver into the southernmost bay. This would also cause problems due to
the existing sewer line. Board Member Breth mentioned that perhaps another access could
be constructed to the building without having to move the sewer line. Applicant responded
that this would require moving and/or readjusting the fencing, etc.
Chairperson Shannon asked if the building could be downsized. Applicant mentioned that
they have already done this to some extent. The building that is being proposed best meets
the applicant's current and future needs.
Board Member Breth mentioned that with five acres there is no hardship of a narrow lot and
the hardship of the flood plain does not come into play in this case since the location of the
proposed bam/garage is opposite the flood plain. Applicant responded that if the location of
the barn/garage is changed to the south, as has been suggested as an alternative, then the
flood plain does create a hardship. Moving the barn/garage to the north side of the property
also creates a hardship for the applicant as it would require that the barn be built in front of
the house, which is aesthetically not desired, and the existing fences and corrals would not
connect to the building.
Board Member Stockover mentioned that in the larger scheme of things he could see no
problems with this request. From an aesthetic point of view, the less drive the better. From a
neighborhood perspective, the proposed location is probably the best one. The sewer line
could be moved, but not without expense to the applicant. If you are going to spend a lot of
money on a project, you want it to be usable. He supported the applicant's request.
Chairperson Shannon concurred with the above and thought perhaps this constitutes an
extraordinary circumstance as opposed to a hardship.
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Board Member Gustafson disagreed and mentioned that he did not see any extraordinary
circumstances in this instance. It was his feeling that the applicant has other options. The
Board is charged with finding a hardship or extenuating circumstances on the property. He
could not find that either of these were evident in this case.
Board Member Stockover made a Motion to approve Appeal 2217 based on the flood plain
hardships that were stated.
Chairperson Shannon seconded the Motion.
Vote:
Yeas: Shannon, Stockover
Nays: Breth, Gustafson, Keating, Lieser
The motion to approve the variance was defeated; therefore, Appeal 2217 was denied
6. OTHER BUSINESS:
None.
Meeting adjourned at 10:00 a.m.
The meeting was reconvened for the purpose of additional discussion on Appeal 2217.
Baines provided additional information to the Board relative to this appeal. Under the
previous zoning district that this property was in prior to the adoption of City Plan, adoption
of the Land Use Code and the simultaneous rezoning of the City, this property was zoned
RLP — low density planned residential which required only a 5' side yard setback. In
discussions that Barnes had with the applicant, she indicated that at the time they purchased
the property, they knew what areas they could put the bam/garage building and,
consequently, designed their corral locations, yard and playground area with that in mind.
The property was zoned RLP at the time the applicant purchased the property and constructed
the home.
Board Member Stockover made a motion to reconsider Appeal 2217 in light of the new
evidence that was presented.
Board Member Keating seconded the motion.
Vote:
Yeas: Breth, Gustafson, Keating, Lieser, Shannon, Stockover
Nays: None
Board Member Lieser mentioned that in light of the new information that was presented a
hardship could be found on behalf of the applicant, imposed by the City when the zoning was
changed.
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Board Member Gustafson concurred with the above.
Board Member Gustafson made a Motion to approve Appeal 2217 on the basis of the
hardship that was imposed on the applicant by the City when the zoning was changed.
Board Member Keating seconded the Motion.
Vote:
Yeas: Breth, Gustafson, Keating, Lieser, Shannon, Stockover
Nays: None
Appeal 2217 was approved in light of the additional information that was provided in this
case -- that there was a hardship imposed on the applicant by the City when the zoning was
changed.
Meeting adjourned at 10:15 a.m.
-e-ge-, 6-'L'
Diane Shannon, Chairperson Peter Barnes, Zoning Administrator