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HomeMy WebLinkAboutminutes.boa.19840607 S P E_N BOARD OF ADJUSTMENT June 7, 1984 City Council Chambers 4:00 p.m. AGENDA I. Minutes March 29, 1984 April 19, 1984 May 3 , 1984 May 24, 1984 II. Old Business A. Case #84-9, Ronald and Shirley Nunn B. Case #84-8, Wally Burke C. Case #84-10/tALetone Ristorante III. New Business A. Case #84-11/Mill Street Plaza IV. Adjournment Next regular meeting sc._i, c u:i+_.0 -or .Tune 14, 1984 RECORD OF PROCEEDINGS Regular M - ing Board of Adjustment June 7. 1984 Chairman Remo Lavagnino called the meeting to order at 4 : 05 p.m. with members John Herz, Charlie Paterson, Josephine Mann, Rick Head, and Anne Austin present. CASE #84-11, MILL STREET PLAZA Lavagnino informed the Board that the applicant from case # 84- 11 , Mill Street Plaza, requests tabling. He asked the applicant if he is withdrawing. Tony Mazza, the applicant, remarked was just informed by Gaard Moses that a citizen ' s committee has been formed under the direction of the mayor to address the discrepancy in the sign code. There is no code provision for signage for upstairs or downstairs plaza use. A mall is not credited for signs other than at street level. This committee has been formulated to make recommendations to address these situations. Closes reported to Mazza that recommendations would be forthcoming in approximately four weeks. Based on that, Mazza is confident when these recommendations are made for changing the code that Mill Street Plaza may be in compliance, and therefore, he may not need a variance . Mazza requests that his case be tabled until the changes are or are not made. At that time , he will come before the Board under the appropriate procedure. Lavagnino asked what is in violation. Bill Drueding , building department , answered there are too many and the signs are too big. He does not have a problem with Mazza ' s request. He is going to be a member of the committee. He also does not have a problem with tabling case #84-8, Wally Burke. He is willing to wait to see what the committee comes up with. He would like the committee in fact to see the signs in violation. Gaard (loses, sign painter, said the Council addressed this issue last Tuesday. Council asked I-loses to put together a committee to deal with various problems in the sign code. He is formulating a committee and wants as much input from the Board , from the mall committees , from the businesses-at-large as to how the gaping holes in the code should be resolved. The committee should investigate signs codes from other cities such as Carmel , etc. , and these codes should be retrieved. Although this will take time , realistically, he will have a rough draft within the month. He will run the draft by the city attorney who can draft an ordinance. City Council then would pass the ordinance. Lavagnino asked if the signs are existing or new. Mazza explained when Drueding cited the building there were three major offending signs. He removed one of the three at the time of the citation. The other two signs have been on the building for three or five months . Lavagnino asked Drueding if he is comfortable with keeping the two signs up. Drueding answered if the citizen' s committee moves quickly then he would not force Mazza to take the signs down . Not all of the signs are in violation. The RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 particular signs which he cited are quite large and people complained about them. There are many sign violations around town. Mazza said the signs were quite expensive. He suggested that comments be solicited from the business owners of plaza type operations. The signs in question were demanded from the landlord, Tony Piazza , by shop owners who complained that people could not find their shops. Shop owners threatened not to pay rent if directory type signs were not provided. Lavagnino asked Mazza if he unilaterally signed the building without inquiring with the building department . Mazza replied he did not approach the building department , he signed the building on his own. Head asked who will sit on the committee . Moses listed the members : Gary Plumley from CCLC, Wally Burke, Bill Drueding , Gaard Moses , Georgeann Waggaman from HPC , Ron Mitchell , and Tom Wells . Wells already is seeking literature from various communities throughout the country. Mazza said if Burke, who is representing the landlord faction, cannot sit on the committee, he would be willing to represent the landlords. Lavagnino wants the two signs at Aspen Grove removed until Wally Burke appears before the Board . There is sufficient signage at the Aspen Grove now. Austin asked if the Board tables Mill Street Plaza what is to prevent other businesses from randomly putting up signs. Drueding said any new signs will be cited and those cases will go to court. New sign violations will not come before the Board . Mazza presented the affidavit verifying posting of the public notice. Barry Edwards , city attorney , remarked there is only one gap in the sign code : the code does not deal with multi level build- ings. There are so many shops with only so much frontage on the street. There will have to be a code amendment. If the applicant withdraws his application Drueding will have to enforce the present code. Herz commented that the signs at Mill Street Plaza are not offen- sive, the signs at the Aspen Grove are. How can Burke be required to take down his signs and not Mazza? How does the Board address this problem? Lavagnino said the Board has the ability to determine whether one applicant is in violation or not . In Burke ' s application only two signs are being addressed , although other ' signs on the building may be in violation. Those two specific signs he wants to come down. RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 Rick Head moved to table case #84-11 , I1ill Street Plaza , until July 19, 1984 , at 4: 00 p.m. ; seconded by Charlie Paterson. Lavagnino requests a roll call vote : Herz, aye; Lavagnino, aye; Paterson, aye; Mann, a_ve; and Head, ave. Moses asked the Board to contribute ideas to the sign committee. CASE #84-9. RONALD AND SHIRLEY NUNN Donna Warrington , architect for the applicant , responded to a letter referencing an amendment to the original motion made on April 19th and amended on May 7th. The main concern is that all of the houses do not necessarily line up in a straight line in the alley. Which house does the Board want the carport to be lined up with? There is no objection from her client if the carport is aligned with the purple house. A survey was submitted that showed the exact location of the existing garage. The request was to replace the existing garage with a new carport in the same location as the tin shed. Lavagnino said the tin shed aligned with the three garages on the east side. Warrington presented photographs. She indicated where the metal shed pro- truded. There is no argument with the one foot. The applicant is willing to bring the carport in line with the purple house. Lavagnino asked if that comes to seven feet then the Board granted a variance for seven feet . Warrington said the variance requested now is six feet. The other concern is the fence . The final ruling which was premised on the fence being an illegal fence-of-record was that her client could replace that fence with a new one in the same location. That fence lined up with the metal shed. If the fence is moved back a foot to conform with the Board' s request of lining the carport up with the purple house the fence is no longer in the existing location, its location is moved by one foot. Her client would like to maintain the seven foot fence at the new one foot location but the code only allows six foot fence. Note the new design locates a gate in the space which is not occupied by a fence. Edwards advised the Board grant the applicant a second variance for the seven foot fence . Action by the Board to reduce the height of the fence by even a foot may effect an applicant ' s property right . If the illegal fence has been there for so many years the applicant may have adversely possessed a foot of right-of-way. Edwards asked if the question is over one foot of fence. Warrington clarified that it is one foot setback from the original fence , which translates into actual linear footage of twelve feet. , RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 Mann asked why a seven foot fence is needed. Warrington replied because of the close proximity of the neighboring houses; privacy is highly valued by her client . The applicant wants as much privacy as possible around the spa (which is within the setbacks) which is located on the deck. Also the existing fence at seven feet was only to - be replaced-. - Lavagnino argued there is a sloping grade on the west side which adds to the applicant ' s privacy ; from the alley the applicant has an advantage; and on the east end there is the garage. Warrington said the north end is the most critical side, and that is where the fence at issue is located. The carport will be fenced along one side . Mann said the hardship today is that the amended variance required the applicant to move the fence in one foot; this nullifies the first agreement. Head argued reducing the fence from seven to six feet is not much of a hardship. Austin agreed with Head. She argued everybody, else is required to have a six foot fence . Lavagnino noted the problem lies with the fact that the applicant has the right to repair the 7 ' -4" fence along the alley way. He asked if the applicant can keep the present fence in the current existing location. Warrington asked why then move the carport back and not the existing fence ; remember the carport consists only of one post, an overhang, and a roof. Lavagnino said the issue is whether to leave the fence as its current location over which the Board cannot control the height or to move the fence back one foot and allow the variance in height of one foot . Mann said other practical difficulties are the close proximity of the neighbors and the narrowness of the lot. Lavagnino rejected this argument, the neighbor on the east could present the same argument in a future meeting. Head asked if it is better to have a straight line or a jog _in the alley_. Lavagnino reasoned moving the fence back one foot increases the width of the alley way , and therefore , increases the safety. The benefit to the city is to snow removal equipment. Josephine Mann moved to grant a variance to allow a seven foot fence to be built along the rear lot line at the location which aligns with the north end of the garage to the east of this property; seconded by Rick Head . Lavagnino calls for a roll call vote : Herz , aye ; Lavagnino , aye; Paterson , ave; Mann, aye; and Head, aye. CASE #84-8. WALLY BURKE Lavagnino repeated that only two signs are being discussed in the request, other signs that might be in violation on the property are not being addressed. There is sufficient signage up there now. Until the sign code is straightened out the applicant RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7. 1984 should remove the two signs. Paterson asked if those signs are specific to a business. Lavagnino replied the signs are generic. The signs are redundant; the signs already exist on the staircase . Drueding noted these two signs were put up in the late winter a month before the season ended. Herz reminded the Board that the city official recommended the signs remain so the sign committee could see the violation. On the otherhand , the applicant is in flagrant violation of the code. The applicant is probably trying to benefit from keeping the signs up all summer . What control does the Board have? Lavagnino responded that the Board is quasi-judicial and can deny the request. Drueding argued Mazza ' s situation is different from Burke ' s. There has been a change in Mazza ' s situation. Burke has been playing games even before the sign committee was formed. Mazza may have tried to do the same thing, but Mazza has the committee to fall back on now. The two violations by Burke should be taken down. Lavagnino argued the two cases are different. Aspen Grove is oversigned. There are many sign violations on the building. These two signs were put up recently. Austin agreed the signs should come down. The applicant has been trying to postpone his case through the summer. Lavagnino asked if there is a formal request for tabling by the applicant. Paterson referred to a letter in the Board ' s packet from the applicant ' s representative to table to August. Paterson asked if the applicant received notice of this meeting. Barbara Norris , deputy city clerk , said no . Lavagnino said noted items are tabled to a date certain to let people know when the Board will discuss a case ; the public was informed and the applicant is part of the public. John Herz moved to deny the variance for case #k84-8, Wally Burke, on the grounds there are no practical difficulties or hardships; seconded by Josephine 11ann. Rick Head steps down. He abstains from voting because of a possible conflict of interest. Anne Austin replaces Head. Lavagnino calls for a roll call vote: Austin, aye; Herz , aye; Lavagnino, aye; Paterson, aye; and Mann, aye. CASE #84-10. ABETONE RISTORANTE RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7. 1984 Rick Head steps down from this case due to a possible conflict of interest. Edwards advised the Board that Head can participate as a citizen on this case but when he abstains due to a conflict of interest with Abetone, Head should not discuss the matter with the Board as a Board member . The Board must understand that Head can discuss Abetone from the position of a public citizen but not from the position of a Board member. Lavagnino introduces case #84-10 : "The applicant is seeking a reversal of the building depart- ment ' s decision regarding the following. The building is a nonconforming structure as it exceeds the FAR requirements in the C-1 zone category. Section 24-3 .4 is area and bulk requirements . Section 24-13 . 3 (a) is no nonconforming structure may be enlarged or altered in a way which increases its nonconformity. Applicant appears to also need a variance to reduce open space. Section 24-3 .4 , area and bulk. " Sandy Stuller , attorney for the applicant, presented the case. An application was submitted to the planning and zoning commission under the GRIP regulations to expand an existing commercial_ space by fewer than 1 ,000 square feet. There is an item in the code that allows minor expansions if it can be demonstrated there is no significant impact on the community. That matter went half way through the deliberations with planning and zoning commission, when it became apparent that some people felt there was an area and bulk question that had to be resolved and should be resolved prior to determination by the planning and zoning commission under the GVIP section. That is why the application arrived before the Board. Whether or not there is a violation of the area and bulk requirements, a variance which is within the Board' s jurisdiction is required. The only consideration before the planning and zoning commission was whether there was a minor expansion of commercial space such that the space should be exempted from the GMP competition. The applicant has to return to the Commission for consideration of the impacts on the GMP competition and demonstrate that the impacts are so small that the applicant should get the benefit of the exemp- tion. She has a difference of opinion with the building inspector about whether or not the proposed construction violates the area and bulk requirements of the code . The appeal is two pronged. First, the applicant is appealing a determination that this is an expansion of a nonconforming use. Secondly, the applicant will try to argue for a variance based on the state ' s statutory Provision which allows the Board to grant variances for the purpose of providing solar access to solar devices. RECORD OF PROCEEDING) Regular Meeting Board of Adjustment June 7. 1984 With respect to the first issue she articulated a detailed argument in the submission of the application dated April 24th. There is not much to add to that today. She would like to use the Board ' s time this evening for a presentation by Paul Rubin, architect for the project second issue. What is being proposed is an improvement for an access to a solar energy device. If this can be established, she argues that under the state statutes the applicant is entitled to a variance for the purpose of con- structing this. Herz asked if the city attorney agrees that the solar statute exists. Edwards said the first question before the Board is does Board want to grant the variance; and second, is the improve- ment for a solar energy device. The statute encourages the deve- lopment of solar energy use , and the Board of Adjustment may vary or modify the regulation for the application for the purpose of considering access to sunlight for solar energy devices. Rubin, an architect and designer with two architectural licenses, with Ron Shorr presented on January 25, 1975, an energy conservation paper which subsequently led to the Pitkin County' s and city of Aspen ' s adoption of the energy conservation thermal insulation Chapter 53 of the building code. The first question of the solar energy application is whether or not access is a problem. The building as exists the presents a diagram of the solar angles during different times of the year ) allows, for example, for a loss of 30o sunshine on December 21st and for a loss of 45- 50% sunshine on March 21st. A solar device would not block access. Presently any solar gain to the building is lost , this would change with a solar device. The existing building has conservatively a heat loss of 188 ,000+ btu' s per day. Infiltration, which is astronomical given the sliding glass doors and based on the crack method used in Chapter 53, conservatively contributes an additional 47 , 000 btu loss . The btu loss is over 235,000 per day. The present gain on the 45 degree east of south glazing totals 32 ,250 btu' s; and a gain of 60 , 900 on the south facade totals 93 , 000 btu ' s . There is a net loss of a 140 , 000 btu ' s per day with the present situation. With the addition , conservatively, there would be a net gain of 95 , 000 btu ' s or 232,000 btu ' s per day depending on the type of solar device installed. Rubin proceeds to argue the addition is in fact a solar device. lie reported that Stuller had a meeting with the building department today to determine what is a solar device . Patsy Newbury' s description defined an active system not a passive system. Rubin argued that the proposed system meets all the criteria of a solar device. The existing building has an air conditioning system and a heating system in the ceiling. The proposed plan collects air at the top of the solar structure. The plan meets RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7 . 1984 the three criteria of solar systems defined by the state of Colorado and Department of Energy. There are solar collecting surfaces and there is ample thermal storage, although the amount of water , concrete , or rock (the question of mass) needed is questionable because it is dependent on the load of the building. The owners who do not desire to serve meals during the daytime want to dump the mass into rear storage . This is unique and in some cases is better than putting the mass into frontal storage. The third element is the plan is mechanical. He can document that passive systems have been encouraged, they are more efficient and cheaper . The plan also meets the criteria for an active solar system. Rubin addressed "open space" associated with the area to be enclosed. There is some precedent here. During the winter , the area to be enclosed is an eyesore. The proposal encloses the area with glass, and results in a more attractive open space. The owners will agree to covenant the use of the area to the same four tables which are located there during the summer . The owners have already reduced the seating capacity in the restaurant since this project started. There is currently no access to that space now. Lavagnino asked for a definition of solar collectors. Rubin explained the solar collection area is defined in this case as the area with glass or glazing area. Solar collectors have to be south facing windows. He reads : "energy collection surfaces include south-facing glazing and glazing surfaces like glass or fiber glass; and include windows , skylights , trombe walls, passive or active solar collectors. " The south facing window has to be part of thermal mass , for example , a brick floor . Head asked if the proposal converts a net loss of 200 ,000 btu ' s to a net gain. Rubin said the gain would be 100 , 000 btu ' s . Lavagnino suggested the sliding glass doors be replaced with a more efficient door. Rubin agreed some of the heat loss would be reduced but the replacement of the door would never match the gain achieved by the proposal. The larger question is the access to sunlight. Herz asked if the applicant ever appeared before the planning and zoning commission since his last appearance before the Board. Rubin explained that the original application was withdrawn from the Board of Adjustment for the purpose of seeking legal counsel . There was a question raised by Paul Taddune , city attorney, as to whether the application should ever have been before the Board. Lavagnino said in the minutes of the previous case Rubin stated that he wanted to go back to the Commission. Rubin clarified he wanted the ability to go back to the Commission or the Board depending upon the results of legal counsel. Rubin reported that Taddune agreed with the state resolution on solar. RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7 , 1984 Rubin emphasized he withdrew the earlier application, he did not request tabling. The application today is a new submission. Rubin was advised not to go before the Commission but to return before the Board. Austin remembered that the applicant was to go before the Commission for a determination as to whether or not the area was open space and as to whether or not the applicant was increasing the FAR. Rubin responded that he was advised to come back to the Board for a determination on those issues, and not to go before the Commission. Lava.gnino asked for an affidavit verifying posting of the public notice. Rubin did not have an affidavit. Stuller asked Rubin if he posted the sign for ten days . Rubin replied that sign was posted for more than ten days. Stuller said an affidavit can be supplied. She argued that as long as the notice was posted the applicant has the right to be here; there is nothing that says the applicant has to have an affidavit , method of proof. Lavagnino opened the public hearing. Robin Molny, concerned member of the public , provided some historical perspective to this application. lie was on the planning and zoning commission at the time the open space ordinance was passed and at the time Ordinance 19 was passed. The application can be separated into two parts: first, whether the applicant has a hardship; and second, whether the Board has the ability under state statute to grant a variance based on solar considerations. But the real question is intent. He read all the minutes and ordinances pertinent to this case . First , he corrected the comments on the Aspen Athletic Club made at the previous Board meeting . The open space of this building was not enclosed ; the open space was determined to be outside of the building based Ordinance 19 under which that building was built; the arcade was enclosed; and the planting area outside the building was the designated as the open space. Prior to and during the adoption and enforcement of Ordinance 19 open space and FAR stipulations were required. Ordinance 19 encouraged the designing of arcades to accommodate height, arcades offered a different approach to bulk. There is no reference in Ordinance 19 that open space or floor area ratio could be altered. Lavagnino thought there were five pending buildings which were exempt from the ordinance and whose owners were allowed to continue with their applications. Was this building one of those? Head listed the buildings : the CDES building, the RBH building, 620 E. Hyman building, Durant Mall , and fourplex. Molny noted that Ordinance 25, which applied to the 620 E. Hyman building, stipulated that Ordinance 19 be extended to require the applicant to comply with the existing zoning RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7. 1984 code and the district map. Head referred to the Council minutes of March 10 , 1975. Fleisher brought in alternate plans which reduced the number of stories from three to two and reduced the mass and bulk . Lavagnino said at the time the applicant came in with the revised plan Ordinance 50 was in effect. Did the new plan negate the ordin- ances. Molny replied no. Stuller explained the intent was to continue the immunity the applicant had for any changes during the period from the original application to final building. The new design did not effect the immunity. That was the purpose of the second ordinance. The applicant withdrew the theatre design because Council would not accept it. Molny explained the applicant was directed by Council to come back with a new design which had to comply with all the limitations that were imposed on the original design. Head noted both plans had the same amount of open space, the space had only been distributed differently. Molny said that is correct. Head therefore assumed that the basement floor would be considered open space. Molny remarked there is a reference in the minutes top open space by Mayor Standley ; the mayor wanted to maintain the expanded service but liked the idea of open space. Austin reiterated that Standley wanted that area to be open space. Lavagnino quoted from the minutes that Mayor Standley wanted to see and to give more open space to the project . He also quoted Yank Mojo who said that the only problem Mojo could foresee was with the floor area ratio which would change under the new zoning code. But this does not apply to the Hyman building because the building was exempted from it. Molny said correct. Drueding said the building was exempt at that time but when the new code was enacted the building became nonconforming. Molny continued. He disagreed with Colette Penne who at the first consideration by the Board on Abetone made the case that the area in question was not open space because it was 10.3 feet deep. The fact that the open space might be 10 . 3 feet deep does not negate its open space status. The depth only defines the space as nonconforming space. In reality the space is 9 . 5 feet deep. He has measured it off the working drawings. He submits Tom Well ' s final working drawings of the building into the record. Rubin argued the 10 . 3 foot figure was obtained off the building department drawings. He also argued that the 10 . 3 feet is not a reason for determining whether or not this is open space. Molny said he also ran calculations from the drawings furnished by Tom Wells on the open space. He concluded that the gross open space is 1,585 square feet. The stairs consume 136 square feet of that. The balance is 1 , 459 square feet which is noncon- forming open space, it falls short by 41 square feet. 25% of 6 ,000 square feet is 1 ,500 square feet. RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7 , 1984 The bottom line is the intent. It is Molny' s opinion that the floor area ratio in existence now is the floor area ratio that applies to the existing building. This building is definitely over its permitted FAR. Drueding noted the allowed FAR is 1 : 1. The estimated existing FAR is 1 . 83 :1 . Molny remarked that in the prior application an argument used is that the floor area allowed then might be applied now. Open space is a requirement. He disagrees with the presumption that . 3 foot or the obstruction of a stair allows one to go ahead build in what is open space. He urges the Board to look at the application in light of the current zoning laws. Molny continued. The solar question is a problem. Solar energy is in the same category as mom and apple pie. The Board needs to look very seriously at the entire solar question. The Board must determine if the loss of open space and the loss of floor area ratio is a legitimate tradeoff for the gain made with the installation of a solar system. He is not sure the Board is qualified to make that evaluation as far as engineering. There is Rubin' s word. The Board needs to question if it is possible to achieve the solar gain by a different method. Are there other types of nighttime insulation solutions for the windows . Is the nighttime insulation proposed for covering the glass adequate to prevent extraordinary heat loss? Answers to these questions may not be within the Board ' s pervue. The Board may need another expert opinion besides Rubin ' s. Molny' s experience in using passive solar architecture, even though it is not as extensive as Rubin , is that nighttime insulation is very difficult to get right, particularly, on a sloping roof surface . It is a tough question to answer. He does not oppose the application on this basis. However , it would be unfortunate to intrude on the existing open space. On a scale from zero to ten he would vote 5 . 5 against . Based on the information presented so far he would vote against the application. Rubin addressed the open space issue. The code clearly states that open space cannot be blocked by appurtenances. The space must have access. There has never been access to the questioned space; that is why the area is not open space. The only access to that space is through the restaurant . The other important point is that there is no documentation that the area in question was counted or not counted in FAR or was considered open space. The applicant is not arguing either way. He discovered the occupancy load calculations . Clayton Meyring ' s original statement is dubious, he may have counted it. But there was no reason to. The accepted evaluation precluded any reason to calculate it. In the same minutes Mayor Standley never refers to the dining patio when he talks about open space. In the same minutes Johnson states that the dining patio area should be included in the FAR. Rubin argued his client is entitled to the benefit of RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 the doubt. And Stuller strongly points this out in the present application. The Board should consider the absence of documentation and consider the solar advantages. Lavagnino expressed his concerns. Heat would be gained at the expense of open space . Many businesses with requirements of open space would like to do this. He does not want to use that as an argument for granting a variance when the applicant has usurped a more desirable quality, open space, at the expense of gaining some heat for a building interior for the convenience of its owners. Rubin responded. First , whether it is open space or not is in question. But secondly, once the winter comes the area is a mess . Here is an opportunity to change that. The applicant has shown his willingness to covenant the area as a green space within a large portion within the glass. He feels very secure in the intent of open space, the proposal produces a much better open space. Lavagnino argued if thermal blankets are put on the inside for nighttime loss , the translucent quality is lost. It would appear to be a solid structure. Rubin said the restaurant is only open at night. Lavagnino argued that thermal blankets would have to be used at night to retain the Scat captured during the daytime. Rubin argued there are numerous ways to do moveable insulation. One way is to locate the insulation at the sliding glass doors. The bulk of the energy will be driven by a mechanical system into the main building. The location of the thermal mass is still open to queL; ion. .__ _ _ _- --aurant closes at 2 : 00 a.m. then the space would be totally closed. Drueding addressed the documentation of the FAR. He submits to the record again, that the building inspector made calculations off the plans provided submitted and used the floor area ratio definition in effect at the time . The inspector calculated the floor area ratio and concluded the courtyard was not counted in FAR. Rubin asked who calculated that. Rubin stated he asked for the calculations many times but Drueding never provided them . Drueding disagreed. The point is that the definition of floor area ratio precluded someone from counting it. If anyone did count it they were in error because the space is not under a projection or roof. If it was required under floor area at that time, then why did Meyring not count it. He reiterated he called Meyring , Meyring did not count that in the floor area ratio because the space was an open yard. Lavagnino asked how Drueding would address the argument of the stairway. Drueding reads a definition of open space: ". . . shall be open from the ground up, unobstructed from ground level to the sky with the exception of permitted architectural projections above ground level and which space shall not be used for storage, RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7. 1984 swimming pools, other recreational areas, trash area, rear access area . . . " It is assumed front access is allowed. Lavagnino reads : . .open space must be continuous and not obstructed with building appurtenances and appendages, stairways will be considered obstructions. . . " This space is accessed by a stairway from the sidewalk . Drueding noted the stairway was deducted in the calculations by Molny and the square footage was short of the open space requirement . Lavagnino reasoned for open space to be continuous and not obstructed the open space must be attached to the building. If one thinks of this open space as extending from the building outward then the stairs are not an obstruction to the space, the stairs are an obstruction outside the continuous space. Rubin replied that space is accessible only through the restaurant through the sliding glass doors. There has always been a planted area which obstructed the space. The access has always been through the restaurant. That is why councilman Johnson said that the space should have been included in FAR. Austin called the developer of the building . She discussed with him the intent. She reported that he said the area in question was definitely intended to be open space, there was a 25% open space requirement, and that area was never included in the lease when he owned the building. The owner of the space downstairs agreed to do the improvements on the open space , for example , the planting, and that was it. The area was not included in the FAR. Drueding reported he received a phone call at 11 : 00 this morning from Tom wells, a local architect. Drueding reported that Wells said "that he did the building , and he changed the design at certain points but it was absolutely not counted in FAR, and it was counted as open space . " And that the space was nine feet in depth. Drueding asked Wells to be here. Although Wells could not be here Wells directed him to pass on the conversation and to quote him. When Molny last night received the drawings from Wells, Wells said the same thing to him. But none of these points are relevant. What is relevant is the fact that the building is now required to have 25% open space , and it is now required to have a 1 : 1 floor area ratio. that went down in the past regardless of waether the building was conforming or not, no matter who said what, what the record shows is irrelevant. The building has to be looked at within today ' s code . Rubin' s argument about the stairs obstruct the space and therefore obviate the open space is not valid ; look around town, look at Mason and Morse and the latest building, Mill Street Station. It is not a valid argument . When there is a stairway simply do not count it as part of the square footage. RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 Rubin said what is pertinent is that there is no documentation on what was included in FAR at the time. If the space is included in FAR it does not increase the nonconformity. His applicant has the right by GMP exemption and the right since his client is not increasing the nonconformity to build . There are too many "maybe ' s. " Rubin said Aleyring said he "might" have. Drueding responded that he never used the word "might. " Rubin argued the figures were done by evaluation. There is no record that shows the FAR was calculated. Herz said if the applicant could have proved that this space was included in FAR he would not be here. The Board does have to use today' s codes and standards. The Board has to determine if the gain in solar heat offsets the loss of open space. The Board must look at the tradeoff not the open space issue . Stuller clarified her client' s request. The application is coming up under a different section of the code that allows the Board to review interpretations by the building inspector ' s office ; this has nothing to do with establishing grounds for a variance or practical difficulty at all. She explained when this project was approved one condition for approval was that this applicant comply with the FAR regulation that was in existence prior to the time any changes were made. That FAR ratio was 2: 1. When this building was built this area could have been included and probably was included in determining the FAR of the building. If that is true then her client should be able to enclose the space without increasing any nonconformity and without a variance. Lavagnino asked if the open space requirement would have been met at that time. Stuller replied there was no condition that the applicant comply with open space. Open space at that time was in a hiatus . Stuller argued the only condition was that the applicant not exceed the 2: 1 FAR, this was the only condition that survived all the ordinance changes. Austin reported that the developer said because of the overlapping, ordinances that the applicant could maximize his FAR if the applicant met the open space requirement. The applicant was supposed to offset the FAR with the open space. Drueding said at the time there were no rules on open space but there were negotiations between the applicant and the Council that whatever was built include open space. Council approved a design which indicated the area in question as open space. (Rubin leaves the conference room. ) M olny took issue with Stuller. Ordinance 19 did not allow one to vary from the open space requirement. Ordinance 19 did not allow one to increase the floor area ratio based on an arbitrary decision by the Council or Commission. Stuller argued that there was an exemption from Ordinance 19. Head noted Ordinance l A RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 16 , 1973 , clearly shows that open space requirements on all construction is not less than 25% open space. That was three ordinances before Ordinance 19. Barry Edwards, city attorney, said the question is very simple. Did the applicant prove to the Board' s satisfaction by tipping the scales in the applicant ' s favor that this area was included in the FAR? That is the question. Has enough information been presented to the Board on this question? The other question is the solar question. Herz asked if the space is included in FAR then does the applicant need an exemption for the solar. Edwards replied no. The Board is being asked to make an interpretation which the building inspector will then have to follow. Lavagnino closes the public hearing. Herz supplied additional information. Herz spoke to the original lease holder of that restaurant, Tom Rubin, who works for Herz. It was Tom Bruggeman' s feeling that the space was always open space even though outside dining was allowed during the summer. The applicant has not proven to Herz that the space is not open space. On the issue of solar gain versus open space, he feels the area should be open space. Edwards advised the Board that information gained by members in their daily lives is good but the members are not entitled to consider what people , friends or developers , say about a particular application outside of the public hearing. The Board ' s consideration must be made on what the applicant and the public present before the Board today. The consideration cannot be based on other discussions. Herz asked if the information shared by his colleagues from the developer, Tom ?dells, etc. , needs to be rejected. Edwards said the Board is sitting and listening to an applicant and the public discuss the applicant' s position. The Board's decision must be based on that information; the Board should knock the information out of their heads. Lavagnino noted that on record the information is qualified as heresay. Lavagnino said this issue should have been brought up in the public portion of the meeting not in the closed portion. Herz said strike the information out of the record. Lavagnino argued the closed portion of the hearing is not part of the record. It is a free thinking discussion for members . This discussion has nothing to do with Edward ' s objection. If heresay was part of the motion then yes it would be out of order . This discussion is not part of the public record. It RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 is not part of a formal motion. He asked to be corrected. Edwards reiterated the Board must only consider what is presented today at this meeting by the applicant and the public in this room. The Board members are not allowed to base their findings today on information which the members gathered from other sources. Lavagnino agreed. Austin asked how does she make the information from the developer admissible. Are people to be subpoenaed? The information is pertinent. Edwards again counselled the Board that it is his legal opinion that the Board not consider information outside what has been presented to the Board today. It is a problem. It is a problem with the court system also. But the issue here is very simple for the Board. The applicant is here, the public is here, the Board listens to the information presented, and then the Board makes a determination on that basis. Board members calling people for their thoughts on an application concerns him. Lavagnino only asks for comments from Board members on how they are interpreting the information that has been presented before the Board. Edwards said that is valid. Mann commented on the list of twelve items included in the April 24th document presented by the applicant ' s representative. The twelve items pertain to the question on the reversal of the building inspector ' s determination that the construction would be an illegal expansion of a nonconforming use. Item one is the occupancy load calculations included the space in question. Item two is that this was included in the liquor license application. Item three is commissioner Johnson' s statement at planning and zoning that the space should be included in floor area ratio. She agrees all these occurred. But she does not consider those three items as very definitive or persuasive. Item four is about Ordinance 11 , open space and exterior walls. This is not very definitive either. Item five is floor area ratio. She quotes from the next to the last line : "it may have been an open space requirement, it may have been calculated as floor area by being included in the base center garden level. . . " The m_yness of the language weakens the argument. Item six, the area is clearly not open space because open space cannot be more than ten feet deep. Facts presented today cast doubt on this figure. The second part of the item deals with appurtenances, the stairways. There has been considerable discussion RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 about this. Item seven, she agrees the only access to the space is through the sliding glass doors. That is a definite part of the applicant' s presentation. Item eight , Gary Esary states that the record is unclear. No one can definitely determine that the area was intended to be included in FAR. And she agrees it still is unclear. Item nine lists purposes for the FAR including the space : they will have no more employees , engineering says parking is all right, the visual impact is not a consideration, and the level of services is not effected. Those all are fine, but that is not all what open space is about. Item eleven, the building is exempted from Ordinance 11 and the granting of this request would not be precedent setting. That does not impress her. Item twelve, the construction will improve the area in the winter time. She agrees. In summary, those items do not add up enough in terms of sureness and clarity to override the intent of FAR. She is firm about supporting the FAR intent . She would not be in favor of the first request. With regards to the solar issue, she would like to support solar energy. She would like to consider there is a tradeoff. Perhaps in the future this tradeoff can be worked out . But she would not use this as a basis for granting a variance. Paterson supported Mann' s comments. The clear choice is whether the solar gain of the system overrides the reasons to eliminate the space. He feels there may be another way to get the solar element into the building without losing this valuable space. He is not willing to give up the space for the solar gain. Many of the twelve points have been weakened by today' s presen- tation. Austin believes the intent of the space is for open space . She does not want to change the present determination. As far as the solar issue, just because one puts a roof up, there is still an open staircase which will allow rain water to run down the stairs . The drainage problem has not been mentioned or addressed at all. At night the heat loss is at its maximum, and if thermal curtains are used the openness of the windows will be lost. Why cannot the applicant put insulating curtains on the sliding glass doors that are there now. They are efficient. RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7. 1984 Herz supports Mann' s comments. Lavagnino cannot support the request either. One minor remark, Stuller counted the sidewall as the exterior wall. He has never known the Board to consider an exterior wall which was not roofed as part of FAR. He does not like the idea of sacrificing open space even though the intent of solar energy is admirable. Everyone can gain more FAR by the same thinking and by infringing on open space. He considers the area open space based on the evidence presented today. He is opposed to the variance. Lavagnino opens the hearing to the public. Lavagnino entertained a motion. Edwards clarifies the two requests by the applicant. First, there is one request for interpretation that this area was not open space . Secondly, and the alternative request is for a variance because of the solar device access. John Herz makes a motion on case #k84-10 that the Board follow the building inspector' s determination that this construction would be an illegal expansion of a nonconforming use; seconded by Anne Austin. Lavagnino requests a roll call vote: Austin, aye; Herz, aye; Lavagnino, aye; Paterson, aye; and Mann, aye. All in favor ; motion carried. John Herz makes a motion on case #84-10 that the Board deny a variance to construct the improvements under the authority to do the same for the purpose of incorporating a solar energy device in the existing structure; seconded by Josephine Mann. Lavagnino requests a roll call vote: Austin, aye; Herz, aye; Lavagnino, aye; Paterson, aye ; and Mann , aye. All in favor ; motion carried. Edwards scheduled a meeting with the Board to discuss the difference be-L.. .____ ._ _- _aed hearing" and "executive session" at 3:30 p.m. , on June 14 , 1984 . Lavagnino raised the Poppies issue : the Board made a mistake in not allowing the public to participate in that meeting. Internally what happened created greater seating capacity. In the first set of minutes on this case there was reference to a concern about the parking at the restaurant. The seating does increase the parking problem. The Board did riot allow the public to be heard in that arena. Vlolny reiterated the original variance specifically stipulated that there could be no increase in the seating capacity. Lavagnino replied the Board knew that but did not know why. Edwards would give his thoughts on that issue at the next premeeting date. Edwards explained that Board members sit here as a quasi-judicial body . The Board is making a determination based on what is RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7, 1984 brought before the Board. It is inappropriate for members to call up friends and to solicit their thoughts on an application and then to make that information part of the member ' s determina- tion . Members during the previous case were relying on what their friends were saying and were not referring to the evidence presented before the Board today. It will cause him untold grief if this case is appealed to the district court under a 106 . In the future remember if a member has a personal opinion about something that is fine and that is appropriate for a Board member to comment during the closed portion of the public hearing. It is inappropriate to bring the public in exparte. In the public portion of the hearing it is all right for Drueding to present heresay; under the administrative procedure act this is admissible. But Austin should not have called the developer for information. Drueding can call, but the Board members can- not . The Board is here to listen to what everybody presents in the public hearing. On an appeal an appellant could argue that a Board member was arbitrary and capricious (for example, if a member calls someone for information ) and no one then had the right to come in and make a representation. The Board must be unbiased. In the case when the developer takes the initiative to call a Board member , the Board member should inform the developer to be at the hearing, inform the caller that the member is not suppose to listen to comments except within the context of the public hearing. Inform the caller to present his position at the public hearing. Issues are to be only discussed here as a Board. He knows the Board has not done this , and the Board has not had a lawyer to tell the Board not to do this. He advised the Board that if someone wanted to, and as a practical matter one rarely does this, one could appeal a decision and all this outside information which is not part of the public hearing and the exparte contacts could create problems. MINUTES March 29 , 1984: Austin corrected the sentence on page 24 , paragraph five, "It is not increasing the FAR" to "Is it not increasing the FAR?". Josephine Mann moved to approve the minutes of March 29, 1984; seconded by Rick Head. All in favor; motion carried. April 19 , 1984 : Paterson corrected the sentence at the end of paragraph one, page eleven to read "he would deny the variance. " Diann requested delete the apostrophe in "client' s" on page fifteen, paragraph two. John Herz moved to approve the minutes of April 19, 1984 , as amended ; seconded by Charlie Paterson. All in favor; motion carried. May 3 , 1984 : Lavagnino requested the deletion of "The if on page two. On page three fill in the blank with "The lienagerie. " Paterson said change "he wants the building cleaned" on page seven with "he wants the sianage cleaned up. " Paterson noted RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment June 7 . 1984 correct "toady" with "today" _ on page eleven. On page thirteen - Lavagnino said change "dining area is too small" to "kitchen area is too small . " Rick Head moved to approve the minutes of May 3 , 1984 , as amended; seconded by John Herz. All in favor; motion carried. May 24 , 1984 : Rick dead moved to approve the minutes of May 24, 1984; seconded by John Herz . All in favor; motion carried. Rick Head moved to adjourn the meeting at 6 : 33 p. m. ; seconded by Remo Lavagnino. All in favor; motion carried. Barbara Norris, Deputy City Clerk