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HomeMy WebLinkAboutminutes.boa.19840308 CITY SPEN 130: reet asp u `� 1611 A G E N D A BOARD OF ZONING ADJUSTMENT MARCH 8, 1984 CITY COUNCIL CHAMBERS 4 : 00 P.M. I. Minutes II. Case #84-3/Anderson-Head, continued III . Adjourn RECORD-QF-RPOCEEDINGS Chairman Remo Lavugninn culled the meeting to order at 4: 1C p.m. with members Charles Paterson, Josepoine Munn, cruncis Whitaker, john Herz, Pick 4eud, and Anne Austin, alternate, present . MIN01ES Luvugnzno questioned the minutes of November 3, 1983. In the first paragraph, Gideon Kaufman was unable to provide an uffiduvi|, of the posted sign, did he ever So that. The Board did not remember . Luvugnino directed the secretary to checv that out. On page two, fourth paragraph, the lust sentence does not make sense: "commercial space was not considered when the FAR crdinunce was adopted and Ms. Davis said it seems logical thul tAe requzrement which shoulo ap.,ly to commercial but the requirement in place before. " Drueding suggested changing the "but" to " is. " Austin suggested also adding "that was in the place before. " Luvugnino directed the secreturg to udJust the sentence uccor6ing!6 . On page four, u motion was mace , u roll call vote was taken, and the motion was not curried. Then discussion followed "Ms. Mann said she would vould like . . . to Pawing . " There is no indication why the Board is tabling the case . The motien does not conveg thoughts for another consideration on tKis mutter. Whituker noted the motion to nuble for u specific time and purpose to near arguments for u variance and FAR of 1100 squure Peet is in the lust purugruph. Munn noted there were two parts to the case: parking and the FAR. Luvugnioo quoted from the second paragraph whicn answered his question: " the bui] din§ department feels GMP allocation on me interpretation of toe defininion of FAR, the upplicunt states that if tie Board finn', in favor of the building department, the applicant is then reques�ing Q FAR vuriunce of upproxzmutelg 1100 square feet floor area . ' Josephine Munn moved to approve the minutes of November 3, 1983; seconded by Francis Whitaker . All in fuvor ; motion curried . Francis Whitaker moved to approve the minutes of February 9, 1984 ; secondea by Josephine Munn . All in favor ; motion carried ., CASE_#84�3/ANDERSON�HEAD�_Cg�ti���d_P�bli�_H���i�g Rick Head steppe6 down . Luvugnino said this case was continued in order to get some information from the city uttorneg on low to determine criteriu for grunting variances on un illegal lot . ^ ^ RECORD_OF_RPOCEEDINGS |`'zul Tuddune, city uttorney, said Heuo und he sp2nt time discussi.'/� min purticulur jrobleo . Tudsune suggested there might be u solution to accomplish what send wants to do. The questAon Luvugnino usn*t over tU pnone was wheiher or not the Mar � could legitimize e legal lot. That is not the function of tpe Bourn The Boord' s func�ion is to look at the upplicutior. 1 : front of the Board, at the result that �s going to obtuined , unu at the use of tne criterzu . Luvugnino interjected thut Head presented two parts of u variance, one is u variance for the lot in perpetuity . Tudvune reiterute� that is not the function of the Bourd . The secont part of �he request is to add u second floor end thut the Bour & cun grumv . Luvugnino sold the second part of the question is if his ^o� is an illegal lot unu the applicant wants to expand an the !o� , what criteria does the Board use to deny or grunt the upplicun , his request for u variance even if he meets ull the sectio''s of the code . Tuddone said the criteria is in the code . The code is not specific , each sztuutzon is juctuully differeni. . He quoted subsection three of Section 2-21 : " Where there ore practical difficulties or unnecessary hurdships in the way of curing out the strict letter of the zoning laws, the Board is empowered to vury or modify the application and regulations unc provisions relating to the use, construction/ or alteration of the buildings or structures for the use of land, so thu ', , the spirit of tne zoning oraznunce will be observed which is public safety, welfare securztg, and substantial Justice done . " Whut does that mean in this particular instance . It meant thuz the Bourn should look an the result . What is going to be acco� plished? In this case there is u ouilding that has been existing since the lute 1800 ' s. It zs u nooco,/formzng buyidiny . encroaches into the reur yurd setbuck. The applicant asks for u further encroachment . The end result is not but . Luvugni:o said the Board can muke u decision about that part of the variance request. Tuddune is only quoting �he guideline for the Boar ;., grunting variances when there is u proven hardship or u practical difficulty znvolved. Tucdune said according to ris understanding the oppIzcunt hus proven that with respect to the first request . The upplicunt is now asking, regardless of whether or not me cuo prnve u hurdsnip or u practical wiff zcu lt y ' to wur d hi o som eh z:g z� the ubstr t . That translates into the Board grunting a subdivision exemption: muAe his lot legal as opposed to illegal . The applicant shoul6 try to legalize the lot by going throuSh City Council , throua� A subdivision exception or tnrough u su11zv^szon exemptzo ` " ^ RECORD_OF_RPOCEEDINGS process . The question unswers itself. It is Murd to come u� with crzserza fop u fuct situation tmzt is not in front OF voe Bourd. Luvugnino said what Tuddune is qucting is the criter�o the Board uses when Iooking at lots which have all the qualities of u legalized lot but an not meet all sections of the ordinunce . Than the criteria comes into plug. But this applicant has an illegal lot to begin with , and it is difficult for the Board to make u judgement on an illegal lot . Tuddune said he would be nuppy to reseu'c) tnis issue in depth . dead and Tuddune were trying to solve u problem, not answer u legal question in the abstract. The question is, re�urdles�� of whether it is legal or illegal , it �s nonconforming . Thu ,., is the kej . What variance new the Board want to give the upplzcuo �. within the provisions . The Board should not unulgze of whether the lot is legal or illegal unless the applicant creutec thc hurdsnip . Luvugnzno explained if the applicant wants to add eny Rini of addition within the legal or conforming purumeters of site yurd setbuc"s, FAR, front yard setbacks, reap yard setbucks , etc . , he cannot do it unless he gets u vuriunce . Tudoune said or Q t4e upplicunt goes to the City Council . Luvugoino suid then the applicant has u legal lot. But in this situation the applicum. has an illegal lot. Because cf the illegality of the lot, the upplicunt has to come before tNe Board for ung addition. Tuddune agreed . Luvugnino asked if he could use the criteria that he did not like Heud, for example, not to give the variance . Cun Luvugnzno do that without the applicant suing him and saying the decision is urbztrury aru cupriczous . Tuddune said qe', us long as Luvugnino applies the criteria . Luvugnino uguin asked what criteria . he suzd Tuddune zs using u subsectz:o of the code that applies to u legul lot, not to an illegal lot. Tuddune said Luvugninn almost answered the questioned. If there is an illegal lot how can the applicant be allowed to do thing':, that are illegal . That answers _ Uself becouse it is illeg'- - Luvugnino argued the applicant is already in an illegul situution just bg adding u second story , but ne kus u double illegal situutzon because he is infringing upon the rear Ward setbacks . Tuddune said the Board ' s concern in roar yurd setback, not the illegu, nature of the lot. For the Board to sag what otWr criteriu applies to illegal situations reuliy answers the question becuuse there are nc criteria that upplg to illegal situations. Luvuyrino usked it there is no recourse. 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PICS oqm aldcav Gy! PuD PuaH -saw Pun -OW on pus o" Pun uvl4un"Ts STWI ClUT of IvDolg UITM aan% 5111011aDew "Ou wop aunpPol Dun SawnjuT .,j.t'; auTj;nop ayl jo spurajB aq; um alau aq jn� IqBTw FjiD aqZ 4vq---. 000 110a"4a UT 15UIRPS som !Dons uo" jDkj -PaDMAO" 5UT05 woaj Aland EUTAOW aqu snuanand auTainop aq; - umqunnis awz qn0qo Wm4FUD RDS jou '..t ,.• ;j - 1051jew; 5U!"aassu woaj paddoqs S,!: auo Uaq; ' quawTanaD jaq WD ITY oq SeTlaa 1SUIM ;T sj ...aSw:! OU0 fjnDd 60, Qwqj qLns A :WTPVU� flawls 7 UT �T 111"SD zx..] 0any BUD 11 Pun 4qla"SD Oq jwf7a TuBal v snq a"s jT joqj qDjum wTijnop D sk saynnaT ;o w7wasop aqq yaujvTdxa aunnpu_ §ORT djj 5 bid-j 0-do 05t'.'l building inspector determined the illegality of the lot . Heud said he reseurchec this buck when for the purposes of pur� dedicutlon fees. He discovered that in paging tuxes on property for "x" amount of years tnut amount of tuxes con be deducted from park dedication fees . This occurred in 1960. He recalled in 196_ the zoning laws were estublishea . He determined then somethzny was not right. The lot does not appear in title commitments or insurance. -here is no way the building inspector or tM' zoning officer would ever have known that this lot was illegul . Druediny noted he discs4ered it was u nonconfo, min, lot un� not u lot-of-record in the minutes in the discussion of previous variances which Head provided. Dvueding sail the minutes u� 1980 do not reflect this . Drueding brought it up . Whitaker understood that u year or two ago e building permit for another type of structure on that property was grunted . Head said in 1977 he received building permit to do u larger awelling . Whitaker uskel the citg attorney if the upplicunt possessed u valid building permit to build on that lot , is thut considered e "reusonuble alternative . " Tuddune unsweres it is not u reasonable alternative now because the building yermit has expired. Whitaker realized taut. But could it have been u reasonable alternative an one point? Could it be considers;-.% an unreasonable alternative now if the the Board chose to grunt u variance for the 1977 set of plans? Tuddune asked if Whztuker wanted the addition in front rather than in back. Whitaker said the point is that the Board is being asked to grunt u vurzunco for the convenience of t|e upplicunt when there are other reasonable alternatives , Por example , the 1977 pion . Luvuynino sand the applicant is allowed to use his legal rights that everyone else has in that sume vicinity, he still nos recourse to using hi'. property like everyone else, but he decided to get u vuriunce on u setbuck. Tuddune hesitated to give the upplicunt free reign to do anything because he is not utilizing that ulternutive without being able to see wnut the end result is. Luvugnioo concurred . Luvugnino would favor this variance if the Boor,-.', had the leverage to letermine What happens to rest of his lot. He would grunt the variance for tha second storg if he knew ne could deny expansion into the front open space. Tntdune said that in what he is saying. Tuddune is not willing to tell the applicant that the Bourd is grunting u vurzunce to add unythzny he wants. The Board will grunt it onlg in this zostunce. Luvugnino wonted to know what criteria or guideline the Boar '� uses to grunt u variance the second time . Tudduoe agreed it would be difficult the second time for tne cppn �cunt . Luvugnzno 5 RECORD-OF-RPOCEEDI�GS asked if the Board could use the defense that it does not li�e the plan. Tuddune said yes unless the applicant tears the builainy down . The next time, tbe upplicunt should try tn make the � ot leOul . Then he could do unything he wanted. But if he expends that encrouchment inta the setnucK , then he Mus to come before the Board . Luvugnino preferred the applicant to build in front of his house now. This meets all setbucz requirements . He would not expand u nonconforming use . This would be u legal situutiun if the lot were legal . Butr tke upplzcunt because of the lot ' , illegal status has to come before the Board to do unything. Again what is the Board ' s guideline to 6eny or grunt u variance for the rest of the lot . Tudduoe said that is u good question. Does the applicant have to come before the Board in any event? When there is u lot zllegully subdivided, can the applicant build his house withi: the requirements . That might not te u question for the Bou.`d to consider. The applicant has that as u matter of right . Luvugnzno said it is an illegal lot there0ore why is it u mutter of right . Tudduoe explained the applicant cannot expand because the structure is on u nonconforming, lot so he would have the expenszon problem every time even if he was within the setboc> . Tuddune said that is an uoulysis he nos not doOe . The foc'/'.. was the addition to the old building. Luvugnino suid the Board can 6eul with that. It cannot deal with the other because there e'e no guidelines. That was his initial question, what guzdelines does the Board use to deny or grunt u variance in that situation ,, Sunny Vunn, planning office, said when this was discussed �z|h Tuddune und Head it vas viewed from u practical point . Wnut is trying to be accomplished . The illegal subdivision not with. standing cleurlg occurred prior to the applicant ' s ucquzsition of the property. The Board can address the variance being requeste� this afternoon . The planning office has requested informutjoo in order to address the illegal subdivision under the code . A decision needs to made if ung subsequent expansions o' chunyes would be subject to variance before this g'oup or not . It is quite possible the lot can he brcught into compliance as u le5i- tzmutely nonconforming In which cuse , uoy expansion that was consistent with thF underlying area and tulK requvrevects of the code would be permitted cleurIy Oecuuse the upplicont would comply with intent of the code und no further vuriucces would be required . He does not know wnut mechaoisr to use ut this point to make tnut decision because W coes not have ul � the facts of the case . Luvugnzno needs tout information to know how much leverage he nus suusequent to grunting the upplzcu'`t 6 RECORD_OF_RPOCEEDI�GS this variance . Munn Sax zd if this is an illegal lyt why is thut the Board ' s concern. Luvugnzno suid it ~ould not ie if the lot was legalism . i'�` does not want to muxe it the Board' s concern. Now the Bourd has control over the situation . The Bouru has the leveruge to determine Now much the applicant con Vuild on Wut lot. Whituker suin the upplzcunt has reques"ev an extension . |ie suggested the applicant get Me city to consider �1s 1ut u legul nonconforming lot , huIf of the battle wouln bp cver . Tnut �, the first step. Heal requested tabling so he could guther more background information and bring the ciQ up to speed w10h zhut; he would have more time to develop further arguments wzth respect to the variance he needs now. Vann preferren thut upproucn . Find out the cleanest wag ov making tbe lot u nonconformin� !ot-of-record . Tudaune said it is hard to focus Co . There is tne questio'` of the lot versus the building . When one focuses on the existin.,., building, then the unswer is fuirlj easy. when one focusos on the lot , it becomes more difficult . The reuso: is it is '^ subaivision question, not u zoning question. If it is u subdivisio.'' question it is not properlg uddresspd in front of the Dourd Xf Adjustment. Luvugnino noted part of the applicant ' s reques� wus to grunt him u variance in perpetuity to make the lot le§e'. lot so he wou2d not have to come before the Board. Tuddune said the problem is the Bourd gets involvec in subdivisjon regu' lotions rather than zoning regulations . This should be u zoniny question. The buildirg is there . The zoning is there. Luvugnino usked why is it 'z zoning question , Tuddune responded that the city does not want people to build on illegully subdivided lots . If the applicant was coming in for u building permit on u new development , it would be illegally subdivide, . The upplicun�. hus to handle it through City Council , through the plunniny and zoning commission, and through tie subdivision regulations .. Once there is g subdivided lot, the building permit will je grunted. The difficulty is the building ulreudy exists, uoc it is the setback . One cunnw force the applicant to near the building down, that is where the concept of latches is Opp. zcuol� . instead wbut is the applicant going to be ulloweo to do to uoe it . Look at the end result . Vunn suic the upplicunt is not Vlowed to remedy this trough the Bour4 of Adjustment . Other zoning options -ill be explored to bring the lot into compliance so that the nonconforming sections oP the co6e will be cleur in the Board 's upplicubilitg to this lot. Tudoune said if thzs - ' RECORD-OF-RPOCEEDI�GS wus u sztuutjon wnere this property was vacant, un& tvere Au: nothing on it the upplicunt would never have received u buzl �ing permit . He probably would not nave to the Marc ror e variance Decuuse it would have been u suboivzsicn queWon. Luvugnino said We Board is asked not to review the question of legality oP the Wt . Is it not pre-emptive for he Bour� to review on applicant' s request to build or develop the whwe lot? Tuddune Uid not know. Vann said tout reflects the fuct the structure pre-exists . Luvug:ino said no, he is tulkinj about expanding into that . The applicant still has to come before the Board if he wants to develop that lot to its fu` �_ potential and/or FAR, even if he meets all the setback requzre- ments. Is the Boors no! pre-empting the status which Tuddune is asking the Board not to look at by allowing him to buzN' on it. Vann said do not deal with the nonconforming lot status because the intent is to keep it an illegal lot. The more upprop' iute wuy of deuling with the illeguIity is through the subdiviszon regulutzons, not the Board of Adjustment. Luvugnino understoo� Mat but should that not be done before the Board nukes u decision on whe�her the applicant expands on thut lot . Vann said prcoubly. The basic question is the lot. Luvugnino asked if the upplicun� neveloPs the whole lot what is the difference whether the 7011. is legal or illegal , the applicant has dore what he wants ..c do through tbe Bourd of Adjustment. 7uddune suzd conceptuully there is no lot line, the lot wus not conveyed to the upplicunt , it is in common ownership, the big house on the left, and house. It has always been used as u fumilg-related hcuse . The question is to what extent cur one increase tiut use un� would it impose u hardship. Look at the spirit and intent o� the zoning law" . Luvugnzno suggested tabling the case to u date certuin untz :� We applicant could complete his tronsuction with City Coc:ci | . Vann suid given the Fact there is some time, given the RUN: Mud has been asked for some additional information, given thp fuct there is u wuy to clean up the problem , whY not sisply tackle that problem fzrst ' it is not that difficult or Wm- consuming of u Procedure. Then come buck to the Bourd . Paterson said he does not kcov whut the Board is uccomplishing . Suppose the applicant cannot get the lot legulized . The cose comes buck here to the Board where it sturtet . Luvugnino suid Wen the Board �us control , the applicant wculd have to come to the Boer& 01 the tzme. 3 RECORD_OF_RPOCEEDI�GS RpouIgr_MPPtiOg______ _____MO_8M_l984 Tuddune said, first, the applicant has to come up with morc information. Second, the problem might be solved in another way . Third, it would be to the Board' s advantage to continue the case so not to lose truck of it. Luvugnino asked the applicant how much time does he meet . Hen6. said u month. Puterson wanted to deal with the case now . Luvugnino disugreed, the applicant probably wouU not receive approval now . Head said he would prefer his architect to give the presentation. D.uening suggested grunting the applicant u subdivision exemptioo . Head asked about the other lot which was subdivided off from his . Is it effectively illegal? Would both properties be ille§ul? Drueding answered his is nonconforming, but both lots maybe illegul . ' Charles Paterson moved to table case 084-3 until March 29, seconded by Francis Whitaker . All in favor; notion curried . Luvug:inc asked if there is uny other business. Whitaker noted there was an objection to calling the . 75 unit u hardship in the Clarendon case . It is not u hardship but definitely . t is a practical difficulty . Luvugnino would not use the lunguuge that 75% Ls u pructicul difficulty . Whitaker said the motion related to many other things. .75 is u practical difficulLy in this particular case,, Francis Whitaker moved to adjourn the meeting at 5:0C p .m. ; seconded by Josephine Munn . All in fuvur; motion curried. ~ -............--................