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HomeMy WebLinkAboutminutes.boa.19891012 CITY OF ASPEN BOARD OF ADJUSTMENT OCTOBER 12, 1989, 4'OOPM. COUNCIL CHAMBERS--MAIN FLOOR A G E N D A I. CALL TO ORDER ROLL CALL II. MINUTES AUGUST 17, 1989 OCTOBER 5, 1989 III. CASE #89-17 CHARLA BROWN (CONT. ) 1 RECORD OF PROCEEDINGS , BOARD OF ADJUSTMENT OCTOBER 12, 1989 Charlie Paterson called meeting to order at 4: 05pm. Answering roll call were Bill Martin, Ron Erickson, Rick Head, Anne Austin and Charlie Paterson. Remo Lavagnino and Josephine Mann were excused. MINUTES AUGUST 17 AND OCTOBER 5, 1989 Ron moved to accept the minutes of August 17 and October 5, 1989. Rick seconded the motion with all in favor. CASE #89-17 CHARLA BROWN Paterson opened the public portion of the hearing. He then read into the record a letter from Denise Reich stating her objection to this variance. (attached in record) He then read into the record the request for variance. (attached in record) Charla presented her affidavit of posting and the posting notice. Then introduced her husband, Rob. Charla: As far as background on the whole picture, I bought this property in June of last year. When we bought it it had this little house on it. (She distributed pictures of the house. ) The way it was presented to me my thought was that it was a little teardown on the property. So we immediately planned to build a house and actually went through the first steps, the Stream Margin Review, and got surveys to try to build a house on the property. Meanwhile we moved into the little house which is 600sgft and decided that actually it was a pretty nice little house and that maybe we should reconsider building another house instead of tearing that down. We should try to go ahead and live in the little house and keep the property surrounding the little house open and in its pretty, natural state. So we did that and it worked out well except for the fact that it is awfully small. So we decided that the main problem is the house is about 20ft by 20ft. And the upstairs which is the attic type roof, the usable square footage of floor space upstairs is greatly reduced because of the curvature of the ceiling coming in. And so where we had a table with chairs we thought "Why not BAM10. 12 .89 just put in a dormer window and that way we would be able to have a space for 4 people around a table. (Charla showed pictures of this) And so as far as just putting in the actual dormer, we did not increase the footprint of the building. I was not knowledgeable enough to know that, as Bill explained to me, that still requires a variance. I just assumed that because I was not increasing the square footage of the actual structure that would not be a requirement additional variance. Needless to say we found out that it does require a variance and so therefore we are here today and want to try to get this variance for our dormer. Paterson: Did you have a building permit for that? Charla: Yes, we did. We actually started construction without a building permit and got red tagged and then did proceed with a building permit. Paterson: You were red tagged because you did not have a building permit. Rick: I would like to hear Bill 's explanation of what happened. Bill Drueding: Frankly, I don't think it should have any bearing on this case. You should decide whether to give this variance whether it was red tagged--given a building permit or not. That is how I feel. But I will give the explanation of what happened. She started building without a permit. She was red tagged. And at the time she was out of town. The contractor who was doing it said "Can we close it so it doesn't get rained on?" The Building Department said "Can we do something?" . I said, to allow her to continue to work the contractor to continue to work and in the meantime the (mush) Stream Margin-she may be able to get an exemption from Stream Margin Review (more mush) additional square footage anything like that. This went to the Planning Department. She got an exemption from Stream Margin Review. So as I knew she got the exemption from Stream Margin Review. I did sign the zoning part assuming that the Planning Department-this was all covered in Stream Margin Review-setbacks and things that. And, once again, we are trying to help because of a situation where we have got-trying to accommodate and I guess they got by without a survey. Rick: The left hand didn't know what the right hand was doing kind of thing? 2 BAM10. 12.89 Drueding: When things start improperly to begin with, that screws the whole system up. Paterson: How did you red tag? Drueding: Someone complained that their property was in the setbacks. Someone drew it to our attention. I don't know who it was. The Building Department's intention was that it was in the setback and if they had to go through variances, why didn't this person have to go through variances also. That is why I feel the red tag and the history of this shouldn't have any bearing. If they had come in for a building permit for this application for this thing, I think that is the way this Board should react. Ron: However they wouldn't have finished the addition. Rick: There would be a tremendous hardship if we denied the variance at this point. Drueding: Self created. They started without a permit. The hardship because the building permit was issued has nothing to do with this. That is a different issue. This should be taken on the merits of this application. Rick: As though it hadn't even begun. Drueding: Absolutely. If she feels--there is other recourse. If they feel there is reliance on a building permit or any other reason they feel that they should keep this, or have other civil remedies to pursue, they should pursue it. I don't believe it is the Board' s saying because we red tagged them and somewhere along the line--in other words you can't--because you red tagged them-- I don't think you should give it to them either because they got a building permit. That shouldn't be an issue here. The issue is the merits of this-- Paterson: What the Board needs to hear are your hardship, practical difficulty, etc. Charla: Basically I was going to say what Rick said is that our hardship is that we did have a building permit and that we did spend $10, 000 plus dollars. Rob: I think the point is why did we want to do the dormer in the first place. And the only reason was to save us from having to build a new home or try to do something else. We just needed a little space and all we wanted to do was change the roof line from the steep A frame by putting a dormer in and try to do it on the south side so we could get some solar gain form it. That is the reason for wanting to do the dormer. 3 BAM10. 12.89 While we didn't know we needed a variance, that is why we are before you now is to see if that would be acceptable. Paterson: Would a dormer on the north side have worked at all? Then it would not have encroached upon any other easement. Charla: No. First of all because of the solar and then it would be on the cold north side. Rick: What you are talking about is something we really can't consider. It is more of a convenience. You had other alternatives that you could have pursued that would have been legal bounds. What has happened now is something that basically is an aesthetic convenience thing for you. And that is something outside of our purview. We consider things that are a hardship or practical difficulty. Rob: Can you take into consideration our willingness to try to remain in a small place and enjoy the property undeveloped? Ron: Is it historically designated? Rob: I don't know if it is or not. My point is that it seems like with what is going on in town with everybody trying to tear down small places and build 6, OOOsgft houses that I think it is commendable that we tried to leave the majority of our property in an undeveloped state. Rick: There is one problem. What happens when you and Charla grow up and have kids and you move on and you sell the house to someone else. They still have that same ability to go and tear that down and build something larger. Eventually that will be fully developed. Now the timing sounds great. It is still something we really can't consider at this point. It is an aesthetic. Paterson: One of the City goals right now--that is why they have put moratoriums on all these buildings. And that is why they are putting historic designations on buildings. They want to avoid teardowns and upheaval and the feeling of a place is changing. Rick: I agree. I think what they have done is fabulous. But we have to judge this purely on its merits. Explain to me the hardship or practical difficulty. Anne: Do you not feel a hardship with the size of the building? Ron: How big is the lot? 4 BAM10. 12 .89 Charla: 21, 000sgft. Anne: Yes. But trying to make a space more liveable. Rick: I agree. But when has that ever been a consideration for us? Charla: We could build a 4, 500sgft house. Rick: I would rather pursue the argument that there was some reliance upon the building permit and that they have gone to great expense to go through the process although they screwed up in the beginning. They tried to play with the system and then got caught up in this myriad of bureaucracy. With all due respect to Bill, I can see how it happened and I think it is a shame to see someone go all the way through that process, get their permits and everything in order to build the thing and then find out that we goofed. Drueding: They began without a building permit. The year before they did inquire about Stream Margin Review. They knew certain reviews were required. So they continued work without a Stream Margin. The Building Dept.--it is part of the code that a survey is required. They did not provide that. It is their responsibility for them to provide us with all the information necessary for us to make--a Building Department and Zoning Department and everyone else--to make a proper evaluation of the property to give them a permit. They did not supply that information. Rick: But yet the Building Department still granted them the permit without that information. Drueding: The Building Department is not infallible. But they have other remedies for that. That is not a reason for a variance. That is my argument. Paterson: We could call it extenuating circumstances and leave it at that without going into detail. Anne: I feel that the impact is minimal. There is no square footage increase. It doesn't protrude out any further than the existing structure that is there. I think that because they did get the building permit and follow through on it-- Rob: The only thing I would really like to say is it really wasn't an aesthetic thing. It was a practical functional reason for adding the dormer. It wasn't for aesthetics to get a better view for example or anything else for aesthetics. It was to try to increase a place to allow us to have a place to sit down and 5 BAM10. 12.89 eat here at dinner. And if we put it on the north side it would be on the cold north side. So that leaves it to the south side. The other thing is if you see the interior shots the kitchen area is on the south side of the building and the couch is on the opposite side. The logical place to put someplace to sit down and eat your meals would be next to the kitchen counter which is right there on that south side. So it was a very practical, functional reason behind it-not just an aesthetic reason. Ron: Was that a kitchen when you bought it? Rob: Yes. Remo had a lot of different people in there over the years who made improvements. When we moved in it had a full kitchen there. Paterson asked regarding the easement. Rick: Remo got an easement extracted from Denise Reich for repairs around this portion of the house so that he could paint it and things like that. And she agreed to do that. I think he even paid her for that easement. Anne: So the easement is basically giving her the 10 feet but wasn't supposed to build in it. Rick: Well they didn't build in it. It is just to make repairs. Paterson: That makes it a little easier in my mind. Ron: I think Remo did the right thing in trying to get an easement so that you can walk around the house. Because obviously the house is positioned so poorly on the lot. He was right in doing that so that at least they can go out and wash their windows. That is the right way to do it and if he paid her for it, she really has no recourse as to walking around and doing windows and so forth. Martin: To consider the hardship, what are the alternatives? Rob: The alternatives would be to do something on the north side if we could re-arrange the living vs. kitchen space. But Charla and I talked about this and we felt like if this doesn't work I don't know if we have to tear it down then maybe we would try and build on a new addition off to the north of it or start all over again with a new house. We considered that. We thought we would take it one step at a time. But we would like to live with the way it is. It works fine for us the way it is now. 6 BAM10. 12.89 Rick: We could put a condition where if they ever expanded anywhere else on the property we could require them to remove that dormer. Paterson asked if there was any further public comment. There was none and he closed the public portion of the meeting. Drueding: There are a couple of things that in going through this thing that I thought were in their favor. This is a low area. She does need--there is less sunlight than in the rest of the area. So any opening up of windows and getting any solar gain is a big influence down there that most of the time they are deprived of. That is in their favor. This is a small house. To make it even partially liveable, even for a couple, they need some sort of an expansion. Whether it should be on this side or whatever they do need some sort of expansion to make the thing liveable. Paterson: Wouldn't you also say that on the north side you can only use so many square feet of glass area. Drueding: Glass area is free on the south side. Paterson: But not on the north side. You have to do a special calculation. And that might cause a hardship. Rick: I could agree to grant this variance with the condition that if ever they expand anywhere else in any other direction that they agree to remove the dormer. Ron: I disagree with Rick. I agree with everything that the applicant is trying to do here in terms of the size and liveability. However, I do not see a hardship. I do not see a practical difficulty. This house was situated on the lot line when it was purchased. Everybody involved knew that it was an encroaching because of the easement granted by the neighbor so they could wash their windows. Anybody who has lived here more than 6 months knows that we have a very strict code in force and especially when it comes to non-conformities. Everybody knew this was a non-conforming building at least on the south side. I think that the reasons why they decided not to tear it down are meritorious. However, by increasing the non-conforming structure they are flying in the face of the code. I could not grant them a variance. And I think as far as the Building Dept. and Planning Dept. is concerned you don't do anything in this town without a building permit. As soon as you pound nails, and you don't have a building permit, anything that happens to you after that is your responsibility. I would not grant this variance on this basis. 7 BAM10. 12.89 Anne: I am in favor of granting this variance. I see a hardship in the size and the space that someone is trying to work with. It was not an increase in square footage. Granted they should have come and gotten a building permit. But since the Building Dept.--they gave them the building permit would they have told them up front "You have to go for a variance, " and would this have been caught, who knows? It is all up in the air. But at this point since they were given the building permit I see that as a hardship in making them go back and tear it down. It is a tough one. It is not easy. But I lean towards giving them the variance. Martin: I agree with what everyone has said. The people made a mistake. And whether they did it intentionally or not one will never know. I went out there and looked at it and it doesn't seem to harm anyone. And I would have to go along with agreeing to approving the variance. Paterson: The way I feel about I think that it is a minimal request. By the evidence shown to us it was not something that was deliberately done to thwart the code. I do see a hardship in the fact that a house should have some kind of south exposure at the living level. And also the fact that the roof was coming up at such an angle causing the upstairs to be very limited in usage. If the house wasn't such a small house I would not consider this a hardship. But because the house is such a small house and because I believe in what the City is trying to do is avoid teardowns I think that the applicant really tried to do everything in good faith. Without that opening and even if you did it on top of the roof like Ron suggested, you wouldn't have a real south exposure. I would vote for a variance. Ron: What is wrong with them bringing this roof line straight back and then down. It does not increase the non-conformity at all. It gives them all the height they need coming back like that. You could put one big glass panel in there and you have the whole southern side that is glass and you haven't increased the non-conformity one bit. I take exception to the fact that it is not increasing square footage. It is certainly increasing square footage because this is not considered square footage. You add a dormer and that becomes liveable space and you increase the square footage of the house. Is that not right, Bill? Rick: It is a volume thing. 8 BAM10. 12.89 Ron: But it is FAR too. As soon as you put the dormer in there, they figure all the way out to the 6ft headroom or something like that. So you are increasing the FAR. You are increasing the square footage of the building. You are increasing its bulk. I contend that this is an economic consideration. It was the easiest and cheapest way. Anne: The point is that they were given the permit and they didn't know they needed a variance. Drueding: This thing was almost completely built before they received a permit. Paterson: But they didn't know they needed a variance. Drueding: They were red tagged and they continued at their own risk. Anne: The question is did they know ahead of time that they couldn't add on to that side. Paterson: They didn't know that according to the evidence presented. Ron: You are innocent until proven guilty, but ignorance is no excuse. Bill: If they had applied for a building permit prior to that, certain things would have been done and then probably it would have been caught at that time. Rick: That area has a history of doing things without building permits. Ron: I don't see any hardship. I see a 22, 000sgft lot with all the room in the world to add to and they added at the one place they couldn't add to. However, I would be willing to back off and go along with Rick's consideration and that is grant the variance with the proviso that if this building was ever expanded, they remove that non- conformity. Paterson: Let' s put a proviso on it and if they choose not to use it, that is up to them. Paterson re-opened the public portion of the meeting. There was no further public comment and he closed the public portion of the hearing. 9 BAM10. 12 .89 MOTION Rick: I make a motion we grant this variance with the condition that if there is ever any future expansion in any direction that they agree to remove this addition. Any time they have to come forward for a building permit they have got to agree to remove this non-conformity. Ron seconded the motion. Drueding: Can I add that they put this in writing as approved by the City Attorney and sign that. Paterson: We can make that a condition of our motion. Rick: What if in 10 years they want to go ahead and do something, how would they know that? Drueding: 10 years it will come for a title search and all the title search will say is book so and so and page so and so. Most people don't go and look at those books and pages because it doesn't come up anyway. And so the person who buys it and sees that this is what was agreed to but the Building Department doesn't know that. Paterson: When somebody else wants to add on that condition would have to continue to the next owner so we do need a legal document that will be recorded in the Courthouse. Rick: If it is put in with the title commitment any good attorney who is reviewing that on the behalf of a buyer will research that and disclose to their perspective buyer that condition. Anne: If it is in the title commitment, I have always ordered all of the documents and read through them and inform the client of this type of condition. Drueding: That would more than sufficient. Paterson: Then add to the condition that there will be a document to this effect and recorded. Paterson then asked Charla and Rob if they would accept these conditions. Charla: Yes. If I understand correctly what the document is. 10 BAM10. 12.89 Ron: Basically what is going to happen is that your title to the property is going to be restricted to the extent that if you or any person who buys the land from you decides to enlarge the current structure, they cannot enlarge unless they remove the dormer. Charla: So that because obviously there is more than just the dormer in the encroachment. Paterson: No. Just the dormer. Ron: The rest is an existing structure and we really can't take that into account. Everyone reiterated that it was just the dormer. Paterson: If anyone is going to put a bigger structure on there then it is mute. The dormer is then no longer a necessity. You have no more hardship. Rob: I think that is fair. Realistically if we ever sold it we all know what is going to happen. Someone will tear it down and build another place. Roll call vote: Martin, yes, Erickson, no, Paterson, yes, Head, yes, Austin, yes. Variance granted. Rick made a motion to adjourn the meeting. Anne seconded the motion with all in favor. Time was 4:55pm. Jani M. Carney, City Dep Clerk 11 County of Pitkin ) AFFIDAVIT OF NOTICE BY POSTING ss. OF A VARIANCE HEARING BEFORE State of Colorado ) THE CITY OF ASPEN BOARD OF ADJUSTMENTS (Pursuant to Section 2-22 (c) of the Municipal Code) The undersigned, being first duly sworn, deposes and says as follows: being or representing an Applicant before the City of Aspen Board of Adjustment, personally certify that the attached photograph fairly and accurately represents the sign posted as Notice of the variance hearing on this matter in a conspicuous place on the subject property (as it could be seen from the nearest public way) and that the said sign was posted and visible continuously 1 from the day of 5eo�c,yh6er- 19'�)Cf, to the day of 190-1. (Must be posted for at least ten (10) full days before the hearing date) . APPLICAN Signature t� Subscribed and sworn to before me this /% day of 19�, by 2G'd WITNESS MY HAND AND OFFICIAL SEAL_ My commission expires: Notdry Public Z� - ---- Address J NOTICE OF PUBLIC HEARING CASE #89-17 CHARLA BROWN 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: October 5, 1989 Time: 4 : 00 p.m. Owner for Variance: Appellant for Variance: Name: Charla Brown Address: 285 North Spring Charla Brown Location or description of property: Location: 285 North Spring Block 1, 1/2 of 3 , all of 4 , 5, 6, 1/2 of 7 Variance Requested: Property is located in the R-30 PUD zoning category. Side yard setback is 10 feet. Sec 5-205 (D) (5) Aspen Land Use Code. Structure currently encroaches 10 feet into the side yard setback and the applicant is requesting an enlargement of a dormer over that setback further increasing the non- conformity. Sec 9-103 Aspen Land Use Code--A non-conforming structure shall not be extended by an enlargement that increases the non-conformity. 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 September 29, 1989 City Clerk City of Aspen 130 S. Galena Aspen, Colorado 81611 To Whom It May Concern: It is very difficult to protest to -an addition of Charla Browns. I very much - - - - - - like her as a person and very much regret the strain that the cities approval of this illegal addition has caused us. The building was built on an encroachment on my property without the city doing their basic job of requiring a survey. I have no otheroice, I must protest the addition. Please find enclosed, the paperwork concerning this matter. Sincerley, Denice Reich DR:jb Encl. WMW central denice c. reich, inc.