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HomeMy WebLinkAboutminutes.boa.19890907 CITY OF ASPEN BOARD OF ADJUSTMENT SEPTEMBER 7. 1989 4'OOPM CITY COUNCIL CHAMBERS A G E N D A I. CALL MEETING TO ORDER ROLL CALL II. CASE #89-1W i6-- AUGUST RENO III. CASE #89-w HARLEY BALDWIN (Collins Block) RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT SEPTEMBER 7, 1989 Chairman Remo Lavagnino called meeting to order at 4 : OOpm. Answering roll call were Bill Martin, Rick Head, Josephine Mann, Charlie Paterson Anne Austin, Ron Erickson and Remo Lavagnino. CASE #89-15 AUGUST RENO Remo read into record request for variance. August Reno presented affidavit of posting. As you all know the zoning changed a year and a half ago. In the R-15 zone there was a loft side yard setback and then in April of 1988 the City changed it to a 5ft setback. The building that I purchased and live in basically was already in existence with the exception that I put an addition on at that time. The building was on an angle and because of the location of the building with the addition the front or southeast corner of the garage is 5ft to the property line. The side of the building is loft because of the angle of the building as it is situated on the lot. So first I wanted to clarify that the variance request that I am asking for has to do with this triangulated pie. It is not a full 5ft addition for the entire length. It is just at that one point. At that time as I indicated in the letter I had proposed to do that particular addition and for financial reasons and because the winter was approaching we did not do that. So basically what I am here today for is to ask for relief from that 5ft at that particular point. As you can see from the photographs the building was made with a flat roof with kind of a front facade to give it some aesthetic value in the interim. I am here to ask you to grant the variance based on a hardship in that the zoning basically made the building that I have a non- conforming structure which did comply at the time that it was done. And to put an addition on anything other than the perimeter of that existing building makes it very difficult for structural reasons and for aesthetic reasons for the surrounding area. Rick: In anticipation of the proposed change of the zoning could you not have gone in and made an application for a building permit at that time or had you not been in compliance prior? BAM9 . 7 . 89 Reno: The problem with that is you have to start construction within so many days after. I came in when the zoning was being talked about and expressed my concern because of that and to pull a permit you are allowed 120 days. You have to start construction within 6 months. 6 months would have put me at the end of last summer. As an architect I am beginning to change my values a little bit on how I advise my clients. They ask "What should we build and where should we build"? I have always told them build what you need and build for what you want. But because of what happens with zoning here I am telling them build for the max. Rick: In your memorandum to us on the second page you talk about Section 9-103 Non-conforming structures, Item C: Extensions, that a non-conforming structure may be extended or altered in a manner that does not change or decreases the non-conformity. Reno: That is correct. Remo: However it says a non-conforming structure shall not be expanded by an enlargement or expansion that increases the non- conformity. Reno: The question that I bring to you is in your opinion does that increase the non-conformity or in reality because the garage is there and is not going to go away-- Remo: I think what they mean by that is that if that portion of the garage that you wanted extended were not in the setback, you would be allowed to expand that on the side or in the rear. But I think it doesn't apply when it is in the setback. Reno: I just make the argument that the non-conformity is there and whether I build this thing or not the non-conforming will still stay there. Remo: But the code says that you are not allowed to expand. Reno: The structure of the garage is such that it is along this space is some 20ft. We can get 2 automobiles in there. I am not saying it can't be done if you shift the whole building an additional 5ft but it does make it much more difficult structurally and also aesthetically. Josephine: You have so much space in the back. Would you tell us why you are seemingly not considering enlarging that there? Reno: For a number of reasons. One I have always believed to keep a building condensed in one spot or as much as possible so that you are not sprawled out. The building becomes much larger 2 BAM9 .7 . 89 when it tends to sprawl out across the land. Two: There is an amenity in having a large yard. Three: You can see that the building was planned for a second floor from the photos. And then four, the economics of building up is cheaper than building out. Rick: Bill, why did they change the side yard setbacks from 5 to 10? Drueding: Just to give a little more space between buildings. And also to reduce the site coverage. Reno: - I think - the - basis €or my- request - is that=- if I hadn!t planned for that second floor, I wouldn't be before you today. That is where I think the hardship comes into being is that it was obviously planned and that I am just a victim off down zoning and caught in the middle. Anne: Did you build this garage? Reno: Not personally. But yes. That is an attached garage. We put a new entrance on at the time with the garage. Remo asked for comments from the Planning Office. Bill Drueding: Only that they increased that setback from 5ft to loft to reduce lot coverage. That is all I have to say. Rick: This doesn't really increase the lot coverage. Anne: This doesn't increase the lot coverage is the way I look at it. Rick: The lot coverage is there already. Remo closed the public portion of the meeting. Ron: I am having a hard time finding a hardship in this situation. I think that the hardship is the down zoning. But it affects a lot of other properties as well. So I don't think it is a property right that has been deprived other than everybody else who owns an R-15 lot. But since you are not really going to affect the lot coverage then I would probably grant the variance because I don't think that--I think it is in the spirit of the code and the applicant has shown that he had planned for this when he bought the property and that if the zoning had not been changed he would not be here today. So under these circumstances I would grant the variance. Charlie: I am in favor of granting the variance. I think it is 3 BAM9 .7 . 89 a minimal request. The other thing is that I do feel it is a hardship by the fact that the zoning was changed after he made his original plans for this. I would be in favor of granting the variance. Anne: I would be in favor of granting the variance. I think that the zoning change to enable less site coverage is applied here. I also think that it is a hardship because he planned prior to the zoning change. And I also think it is a minimal request. I think it is a very minimal request. Therefore I would grant the variance. Josephine: I agree with what Anne says and the others. I agree that this is a hardship created by the change in zoning. It is a very honest request and minimal and I am willing to grant the variance. Rick: I can appreciate your concerns, Remo. I, too share my colleagues feelings. This is an appropriate example of what I would consider a hardship and I think one that we should grant a variance for based primarily on the fact that I don't think the site coverage is going to be changed at all by adding a second story and even to the contrary that if we forced him to build somewhere else on the property we would probably increase the overall site coverage of the property. So I think it is minimal. I think the remarks that Joe made about getting caught in this change in zoning which we know as a moving target are appropriate. I think this is a prime example that we should grant. Drueding: I agree with this variance. There is no problem with that because there are reasons for it. But a change in zoning creates a hardship and that is a reason for a variance, we don't agree with. If the zoning changes and you are caught in it, you have to accept it. Otherwise there are a lot of hardships. Remo: I agree. I don't think this is a unique case myself. Many are going to come before us that are affected by this zoning change and I think we have to get more of a criteria of the uniqueness of each individual site and use the merits of that case to determine whether we grant a variance or not. Now all I have heard before us is an aesthetic consideration which is not under our purview. It is not incumbent on us to give a 400sgft master bedroom. He has got plenty of other places to put a 400sgft bedroom. And I think more important than that is--and economics is the other reason--it is not under our guidelines to consider economics, aesthetics and the structural requirements that you need in order to meet the setback requirement. And the practical difficulty or the financial 4 BAM9 . 7 . 89 aspects of having to put a beam across possibly to structurally support the second floor. I think the thing that I am looking at as far as the setback is light and air--not so much bulk but the spaces between buildings. It is just as important as site coverage. And it is my feeling that I think a second story would reduce that on this site. And also maybe precedent setting although we don't go on precedent. Rick: I take exception to that because 2 years ago it wasn't a concern. Remo: That is right. That is why we changed it because all of a sudden-- Rick: Now we are getting into semantics as to why they changed the law. But I don't think that when 2 years ago it was OK and suddenly today it isn't. Remo: Well, they found out that if they let people build from 5ft away that the light and air between buildings--a second story would exacerbate that quality. Ron: I don't vote this time but I would vote yes on this variance. MOTION Anne: I move that we grant the variance requested on Case #89-15. Charlie seconded the motion. Roll call vote: Anne, yes, Rick, yes, Josephine, yes, Charlie, yes, Remo, no. Variance approved. CASE #89-16 HARLEY BALDWIN/COLLINS BLOCK Remo read into the record request for variance. Francis Krizmanich, Zoning Dept: As you know there was some discussion at the last meeting that posting of the sign and the approval is conditional on that posting. The sign was posted apparently did not meet the standard of 1 inch letters and everything else. We discussed that with Fred Gannett and he said it could go either way basically. And we leaving the first decision with the Board of Adjustment as to--of course they notified the adjoining property owners. There was a notice 5 BAM9 .7 .89 posted in the newspaper. The notice on the window was smaller than what we typically have. Fred Gannett's view of that was that you could find that they still substantially meet the posting and notice requirements and if the Board of Adjustment feels that they do an adequate job with giving notice that you can accept that. If, on the other hand, you find that the posting of an 8and1/2 X 11 sheet is not large enough area for the notice requirements that they need to do it over again. Remo: It is my personal opinion that I don't think the public was adequately advised with that notice. Andy Hecht, attorney: Since then we have posted again with proper lettering and proper size. And I don't think anybody from the public is here in response to that larger posting. Affidavit of posting was presented. Rick: Where was the original posting? There was discussion regarding posting. Rick: I think that if it has been posted more than 2 weeks and there has not been any public uproar. I don't see anybody here to object to it. No letters. No public here. Drueding: The code reads for posting it has to be posted for 10 days in advance of the meeting. 15 for the mailing out and 10 for the sign. Francis: So this time around they have done everything procedurally correct. They were a little bit off the first time and how we worked this out with the applicant was that we went ahead and posted and published just as if it was a new hearing in the event that you decide the original posting didn't meet the requirements. Remo: Ok. Everything is in order. Rick: My position has not changed from the last meeting. I am in favor of accepting this as adequate notification. Anne: I am not in favor of accepting this. Charlie: I think that in view of the fact that the public did not appear at the meeting after this last posting of 10days I think that we should--I would like to propose a motion to accept the posting. I would be in favor of accepting the posting in 6 BAM9 .7.89 view of the fact that the public has not appeared after the second posting. Josephine: I would agree to accepting this. The original posting was not sufficient. I am saying I will go along with saying that this is now OK--what they have just done is OK. But with some reluctance. Remo: I am in favor of hearing this but I don't think it was adequately posted. I do as a consideration and I was given a lot of assurances from Roxanne that either Don Erdmann or Bill Poss might be here today with HPC's viewpoint and I have a lot of questions to ask them regarding what kind of depth they use to come up with the kind of open space that they have given us as an indication of what they want for that property. And I am not too happy with--or at least I don't know how they arrived at it. All I was told was that it was given great consideration and we don't have a representative here right now to really question that person regarding how they arrived at that. That is my concern. But since they are not here it might be a mute point. Sandy Stuller, City Attorney: Do I understand correctly that you had a hearing earlier and granted a variance. Remo: Yes. Sandy: Subsequent to that it was determined that posting was inadequate in terms of size. Josephine: We began the hearing knowing that we didn't have an affidavit when we began the hearing. Rick: But we thought the posting was proper. Remo: It was contingent on the proper posting. Sandy: So you concluded the hearing and made a decision and it was to grant a variance. Is that correct? Remo: Yes. Sandy: And now what you have done is duplicate the publication. They are now before you and what is the specific question-- whether or not you are going to hear it again subsequent to proper posting? Or whether or not you are not going to hear it and you are-- Remo: That is what the question is now. Yes. 7 BAM9.7 .89 Sandy: I think you guys have a jurisdictional problem. I don't think you had the jurisdiction the first time around to grant the variance because it wasn't properly noticed. Remo: But it was conditioned on their having the proper notice. Anne: It was conditioned on them bringing us an affidavit. Remo: They didn't bring it in-- Anne: To show that it had been noticed. Remo: So in order to not--to cancel the meeting, we held the meeting conditioned on that they would give us the proper notice of affidavit-- Sandy: But they didn't-- Remo: They didn't. That' s right. Sandy: So basically what you should do is start all over again. Remo: Well, that-- Francis: What happened, Sandy, we discussed with the applicants- -they brought in their affidavit and what they had posted was an 8and1/2 X 11 and then Fred's opinion was that if by some chance this ended up in court that the judge would look at it and say "Well even though they didn't meet the exact letter of the law which requires tin letters on a sign 24 X 36 that they still substantially comply with-- Sandy: Since they substantially did not comply the first time then they shouldn't be here a second time. Francis: Well, it wasn't his determination. We determined to leave that up to the Board of Adjustment. Sandy: You were going to decide whether or not you were going to duplicate the publication or not and your determination is that they have done it properly and since you do not get any public comment, the requirement doesn't matter? Remo: That is what the discussion has been. Sandy: (mumble) Charlie: How about giving us a professional opinion. 8 BAM9 . 7 . 89 Sandy: I feel that on the first go-around you did not have the jurisdiction to grant the variance. Remo: We have done this before and it is always based on the applicant eventually handing over the affidavit of posting. Sandy: The affidavit tells you that the first time you did it, it was not proper. Remo: That is right. Sandy: And this time the posting was wrong. Remo: So because--the argument is that because no one from the public showed up at the second meeting which is now that it sort of justifies the first meeting by the public not responding to the proper notice. Sandy: Then my message to you then is that if you approve it again if that is what you are going to do, you don't have to take evidence again but at least have a motion of approval here on the record subsequent to the determination (terrible racket here) Remo: Well, first we have to answer the question as to whether we want to hear it or not. We are at that point yet. MOTION Rick: I make a motion that we approve #89-16-- Remo: Well, we would approve it without discussion, though. Rick: Right. Anne: But can we have discussion? Sandy: As far as I am concerned, if you want it to be, this could be your first go-around. This is the first time you could do this because it is the first time it has been published properly. Anne: So we could have discussion. Sandy: Right. I would suggest that the applicant make his presentation. Remo: So you are telling us we have to hear it. Sandy: Yea. I really think you had a jurisdictional problem the first time. 9 BAM9 . 7 . 89 Drueding: To further complicate things, did you re-mail? Andy: Yes, we did. We re-mailed. The whole thing has been treated as a new application. Francis: The way we are handling this is based on the way Fred thought we should handle it. Remo: It is a whole new number anyway. Francis: Fred Gannett idea was to first have the Board determine whether or not even though the sign didn't meet the absolute standard of the code, whether or not it still met sufficient notification. Sandy: So the first thing to you guys is forget the new publication. Remo: Right. Sandy: Let's pretend that they didn't republish and are you satisfied-- Remo: That is right. That is what we are voting on. That is proper, right? Sandy: And then basically if that is your motion, then you have adopted your actions of the last meeting. Remo: That is right. Sandy: OK. Got it. Remo: I am going to have to take a roll call vote now. I will entertain a motion. The motion, I believe, is that adequate posting was-- ? : Mumble. Remo: Yes. Josephine: What did you say that motion was? That is not what I thought it was going to be. Rick: That the first posting was adequate posting. Anne: No. That it was inadequate posting. 10 BAM9.7 .89 Josephine: It was inadequate posting. Charlie: That we accept the posting. Is that what you said? Remo: Yes. Josephine: That we accept what was posted the first time. Remo and Rick: Right. Josephine: I would rather accept what was posted the second time. Remo: Well, we know that. We have that affidavit before us. What we are talking about is whether the public was properly informed the first time. That is what I question is the first time. Josephine: That doesn't make sense to me but it does to somebody else. So OK. Anne: No. I agree with you, Joe. Remo: Well, have you changed your mind now? Josephine: I haven't changed my mind. But I just didn't expect the motion to be stated that way. Sandy: I think the motion is to make a determination that the first posting and publication was not in compliance with he regulations and the Board had jurisdiction at the earlier hearing. Is that your motion? Remo: Yes it is. Rick seconded the motion. Remo: So would you please take a roll call vote. The motion before us--was this proper posting the first time. Sandy's motion is the motion. Anne, No, Rick, yes, Josephine, yes, Charlie, yes, Remo, no. Remo: You don't have to come before us because the motion of adequate posting was sufficient. Charlie: I think that this posting, I am sorry, I brought this up about 10 or 12 years ago because I was the first one who suggested posting to begin with. I saw it in Florida. And since 11 BAM9 .7.89 that time this posting business has gone completely out of hand as far as I am concerned. We are wasting paper. We are wasting time. We are wasting everything you can think of and we are supposed to be talking about preservation of time and verbiage and everything else. And what we are doing is we are going too far in the other direction. I am the one who suggested the posting about 10 or 12 years ago and we never used to have posting if you will remember correctly. We never had any posting. Remo: Sure, we didn't have 5ft setbacks. Ron: You are in favor of a liberal interpretation of the posting regulation? Charlie: Right. The thing is we are going too far in the other direction. I get frustrated with anybody doing more than is necessary. Rick: I make a motion we close this meeting. Ron seconded the motion with all in favor. Time was 5: 20pm. Janicell. Carney, ty puty C1 12 NOTICE OF PUBLIC HEARING CASE #89-15 AUGUST G. RENO BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962 , as amended, a public hearing will be held in the Council Room, City Hall , Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24 , Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, then you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: Date and Time of Meeting: Date: September 7, 1989 Time: 4 : 00 p.m. Owner for Variance: Appellant for Variance: Name: August G. Reno August G. Reno Address: 1045 Cemetery Lane Location or description of property: Location: 1045 Cemetery Lane, Lot 4, Block 1, Pitkin Mesa Variance Requested: Property is located in the R-15 zoning category. Sec 5-202 (D) (5) Side yard setback required is loft_ Applicant currently encroaches 5ft and is requesting to place an :addition above that 5ft encroachment requiring a 5ft variance for the side yard. Will applicant be represented by counsel: Yes: No: X The City of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado 81611 Remo Lavagnino, Chairman Jan Carney Deputy City Clerk NOTICE OF PUBLIC HEARING Case #89-16 HARLEY BALDWIN BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962 , as amended, a public hearing will be held in the Council Room, City Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24 , Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, then you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: Date and Time of Meeting: Date: September 7 , 1989 Time: 4 : 00 p.m. Owner for Variance: Appellant for Variance: Name: Harley Baldwin Harley Baldwin Address: 205 South Galena Location or description of property: Location: Collins Block, 204 S . Mill, Corner of Mill and Hophins Variance Requested: Property is located in the CC Zoning category. Definitions as per Land Use Code states Open Space (C) Minimum frontage, The open space shall have a minimum frontage on the street, or if there is no street, on the public right of way, of one half (1/2) of the length of the lot line on the side of the building site, or one hundred (100) feet, whichever is less. The applicant appears to be requesting to use 7.75 ft to meet this requirement--a 37.25ft variance. Will applicant be represented by counsel: Yes: X No: The City of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado 81611 Remo Lavagnino, Chairman