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HomeMy WebLinkAboutminutes.boa.19920604 CITY OF ASPEN BOARD OF ADJUSTMENT JUNE 4, 1992 4.00 P.M. COUNCIL CHAMBERS A G E N D A I. CALL MEETING TO ORDER II. MINUTES MARCH 19 AND 26, 1992 APRIL 9, 16 AND 23, 1992 III. CASE #92-5 RUTH HANRAHAN IV. CASE #91-6 DR. WATSON--CLARIFICATION 4-�V RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT JUNE 4, 1992 Vice Chairman Charlie Paterson called meeting to order at 4 : 10pm. Answering roll call were Ron Erickson, Charlie Paterson, Rick Head and Anne Austin-Clapper. Bill Martin and Remo Lavagnino were excused. CASE #92-5 RUTH HANRAHAN Charlie opened the public portion of the hearing. Charlie read into the record letter dated April 8, 1987 to the City of Aspen Planning Dept. To whom it may concern: I am the owner of the north half of the duplex on Lot 23 West Aspen Subdivision filing #1. The architect and the owners have shown me the drawings and the model of the proposed addition to the north half of the building and I do not have any concerns with allowing the Adams to modify the existing building to better suit their needs. I think that the addition will be an asset to the entire building. Signed: Ruth Hanrahan, 805 Bonita Drive, Aspen, Colorado. Charlie then read into record the request for variance. (attached in record) David Myler, attorney for applicant: Presented affidavits of mailing and posting. (attached in record) In the process of going over materials we submitted we did discover that there is an error in 2 of the numbers that appear in my letter. On page 3 of the letter in the 1st paragraph I make reference to the present floor area of the building as 5, 065. 89 . It is actually 4 , 999. 89 . I had picked up an old number that wasn't correct. Also on page 3 there is a reference to the square footage of the mechanical room in the Adams unit at 208 . It should be 142 . The circumstances as we understand them can be summarized as follows: The actual floor area that exists now is 4 , 999.89 . We are asking to add 153 . 68sgft bringing the total to 5, 153 . 57 . What is allowed is 5, 028 which means that the increase over the allowable floor area that we are requesting for this variance is 125. 57 . I have reviewed staff' s recommendation and comment and I guess I am a little bit surprised at the narrowness of that position. And BAM6. 4 . 92 it causes me to repeat that the variance procedures exist to allow property owners with unique circumstances to obtain some measure of relief from a strict application of the dimensional requirements of the code which include the maximum floor area that would be allowed on the site. If we as a community had expected that the maximum floor area could never be relaxed under any circumstance then we wouldn't have the variance procedure. We wouldn't have the Board of Adjustment. We wouldn't be here this evening. In the code there is some language we can rely on and I am sure you are aware of the fact that hardships come in all sizes, shapes and forms. And it is a somewhat subjective analysis. The code does speak of unique circumstances which operate to deprive an applicant of rights commonly enjoyed by others. That is the standard we are going to try to apply this evening and demonstrate that we fall within that standard and should be considered for a variance. In essence Ruth's neighbor and with the City' s blessing and what we think is in a rather devious manner used up all of her expansion potential. That circumstance we feel causes a hardship in this case because it in effect deprives Ruth of the right commonly enjoyed by all property owners and that is the right to use and enjoy all of the allowable floor area that is available to them. The opportunity to expand within the limits of the allowable floor area is a valuable property right. And in this case without the opportunity for a variance, that will have been lost under circumstances which we think are unfair in this situation. We did not introduce the letter that was referenced before but we have all had the chance to look at it. I need to point out that that letter was written by Mrs. Adams--not by Ruth. Those are not Ruth's own words and as we pointed out in the letter Ruth was approached literally on the day she was moving into this house and asked if she had any problems with an expansion. The letter says that she was shown plans. She was not shown plans. Ruth can address that. She was simply trying to be a good neighbor and trying to address, in her mind anyway, to assist the land owner by agreeing that the expansion looked good and it would be an asset to the neighborhood without being advised in any way by either Mrs. Adams or the City that Ruth could in effect be giving up a valuable property right by signing that letter. The circumstances are unfortunate. We think that they are sufficient in this case to support a finding of a hardship keeping 2 BAM6. 4 . 92 in mind also that the code doesn't require any particular degree or level of hardship. It just speaks of a hardship. There isn't any magic formula that is involved here. I think that in this case the facts are more than sufficient to support that kind of finding. And if so I think we can shift our attention to what I think is probably the more important issue and that is the nature of the improvements that we are proposing for the property. The nature of the variance that we are requesting because you do have a requirement to consider whether it is a minimal expansion--a minimal exceeding of the allowable floor area. In our opinion the impacts on the neighborhood are almost negligible that by virtue of the fact that we are enclosing existing deck areas that are covered and have substantial roof areas over them and adding approximately 87ft in a corner which doesn't exceed beyond the real envelope of the building from a visual standpoint that it is quite negligible. On the other hand the expansion allows us a pretty significant opportunity to improve the liveability of the house given Ruth' s circumstances and desires. The improvements are negligible and they do offer a very good opportunity to improve the liveability and functionability of the house. Ron read into record a request from a neighbor for not granting . this variance. The signature of this letter was not legible. The return address on the envelope is Lyndhurst Plantation, Route 2 , Box 88, Greenville, Florida 32331. (attached in record) Anne then read into the record a letter from Terry Murray of 825 Bonita stating she had no objections to this variance. (attached in record) Ron then read into the record a letter from Sue Durkis and Katy Tveite of 943 and 945 Cemetery Lane objecting to this variance. (attached in record) Charlie read into the record a letter from Christopher Darakis stating his objection to this variance. (attached in record) Bill Drueding: Representing the Planning Dept, it is my opinion that if the Board grants a variance allowing FAR exceptions it will be contrary to the reason the code imposes FAR maximum house sizes. The maximum FAR figures were imposed after many public meetings and much discussion to control house sizes in each neighborhood and therefore the Planning Office opposes this variance request. Jim Colombo, architect for applicant: At this point I will address the opposition stated in the letters. The opposition I see is two fold. One being an addition of FAR which seems to be the general 3 BAM6.4 . 92 opposition to the additional FAR. Second it seems to be blockage of views and how the FAR is utilized. Using floor plan: The larger portion of the enclosures represent deck areas. What we propose is only to enclose those decks, not change the roof line or the external structure of the building-- only to enclose this area so it becomes utilized as interior space rather than exterior space. Rick: Isn't that included in the FAR calculations? Colombo: The first 3ft of an overhang is not included in the FAR structure. It is considered an eaves portion. Any area beyond the 3ft is included in the FAR calculations to begin with. So in a way Ruth has been penalized twice here in that the area that has been counted as FAR enclosure is one part of what we are asking to enclose. So we are only asking for the 3ft that is the eave area. The external perimeter of the building--the envelope of the building--would not be changed whatsoever in this area. All we are asking to do is take this substantial structure and internalize it. This represents 66sgft. Ron: Is the 87sgft part of that area there? Colombo: No. It is 2 separate areas. Drueding: I agree with those numbers. Colombo: So in this area here what we are looking for is not this entire portion to be enclosed. The area has already been counted 3ft out. So we should have the right to enclose it because it is already counted in FAR. What we are asking you for is the additional 2ft along the perimeter to enclose that to bring it to the edge of the outside envelope of the building. There would be no change in roof line, no obstruction of view. What our proposal is to do is simply internalize those areas by moving these internal walls and moving them to an external point but still at the same roof line. We are talking about 66sgft. The footprint of the building would not be changed in any way nor would there be any expansion of height. There would be no infringement on viewplain. To now move on to the additional FAR--it has a minimal expansion of 78sgft here. Currently this area is Ruth' s only window for her kitchen. We are talking about making a functional kitchen in here that would include 78sgft. But I want to make the point that this enclosure that we are proposing would be within the external 4 BAM6. 4 . 92 envelope of the building here and below the roof line here. So it would be totally encapsulated within the structure and perimeter of the structure. What we are going to do is just make it more of a golf-course-view window rather than the type of window she now has. Our change occurs in this area right here where she has a single window--to make it a nice open rounded kitchen area--all of which is internalized between this external point here and this external point here. It would not affect any views from any angle nor would it extend beyond the external points of the existing building. Ron: - You- are-doing a lot of- structural changes -to the house. Colombo: They are not structural changes. Facia changes, yes-- cosmetic changes, yes. This would still carry the weight. The support structures would still be the same. We would be taking off siding-- There is no increase of FAR on the second level. Charlie: I was asking if the second floor was an increase of FAR. Colombo: 13 . 75. Rick: The ownership on these things is a undivided 1/2 interest? Dave Myler, Attorney for applicant: That is right. Rick: Or is it condominiumized? Myler: It is not condominiumized. Rick: It is an undivided 1/2 interest with some use agreement? Myler: Right. Rick: Is there not some vehicle within that agreement that spells out who is allotted what over there? Myler: The agreements that I have reviewed don't spell it out. So we have to fall back on common wall principals which provide that the expansion potential as a property right is also in common. And one person cannot, by their actions, exclude the other from the use of that potential. And that is what occurred in this case. Now that is a dispute between us and our neighbor. It does not directly involve the City. There wasn't any set of rules that anybody could have gone to to see what the relative rights of the 5 BAM6. 4 . 92 property owners were. Ron: I don't think that under the code there was supposed to be. This is a very unique situation. Rick: It has changed now but at the time this was created that was the only way you could sell off multiple units was by this undivided 1/2 interest. Ron: I don't think the City decided to get into it. Myler: I am sure they didn't. Rick: I am trying to see if there is any recourse against the Adams. Myler: That is an issue but obviously what we are asking for would mitigate any potential claim that we might have against them and this is what Ruth would like to do in order to improve her living situation and it would resolve the problem. Colombo: The way we designed the improvements for Ruth' s home is on a human factor with the basics of what would make her home very livable for her and her 2 children. She is getting married so you are talking about 4 people living in a home that was considerably smaller at one time. We are not asking for a large increase in FAR. We want to utilize existing structure just the way it is--just enclose existing covered decks and add a small 73sgft in the kitchen area in order to make it a functional kitchen for a family of 4 . I think we have done it in a way that it is considerable to the neighborhood and does not block views from any angle and is also an improvement to the neighborhood and change it to a home that is much better looking than it is now. It is not a deterrent to the viewplain of others. Rick: That I would agree with. Ruth: Everybody more or less covered all the situation. I thought it might be valuable for the Board to know that when I bought the home in 1987, it was just me and my children were babies. Now they are growing and I getting ready to remarry. When I decided to expand I found I couldn't because of the expansion of my neighbor. Now I can't do anything about that. It obviously is very upsetting. But at the same time it would be a lot nicer for me if I could do these minor expansions. My living room is kind of small and by doing the deck expansion it would really open it up. And the kitchen is really a one-person kitchen which was fine when 6 BAM6. 4 .92 there was just me. Charlie: If you have any other hardships that is what the Board is really interested in because convenience does not make a case for us. Hardship, practical difficulty--those 2 items are very important to us. So if you can zone in on those 2 items it would be helpful. Ruth: The hardship was really created by circumstances I had no control over. It does not preclude me from not having checked out this piece of paper and obviously I will never sign a piece of paper without getting it looked at. But at the time I was moving into the house--it was the day I was actually moving the children and myself in when this letter was handed to me. And at the time I was getting divorced. I was buying a new house and had 2 small children. I was excited. I was moving into my new house. Then this neighbor hands me this letter. I think I am being informed and it is going to be noisy and dirty and I said "Who cares? I got my house. I am moving. I am happy. I will sign the letter" . Now when I go to expand 5 years later to meet my growing needs, this situation lands in my lap and I didn't have a clue. I did not have a clue. Now I am stuck with this. I was really entitled to 500sgft and there is no way for me to get that back. Colombo: Looking at a hardship--the current mechanical system, heating system, hot water system is inadequate for the home as it exists. And that is not including the addition of another person in the home. Part of this expansion is that we need to add an additional mechanical room. In the old days mechanical rooms did not count. Today under the code they do count. So that is part of what we are asking for. If we could have the mechanical room we would have what we want. Charlie: Is there a mechanical room in this old plan? Are we taking space out for this mechanical room? Colombo: The old mechanical room existed below the home in a crawl space. So you can imagine the type of hot water system and the type of heating system. We need to get a larger system in order to get forced air and heating in there for the children's room. And we would like to get a hot water tank so that more than one person could take a shower without running out of hot water. At one time the code did allow mechanical rooms in-home. They did not count as FAR. There has been a downzoning so to speak in that mechanical rooms now count. At one time stairways only counted along the level at which you approached them. Now they count continuously. 7 BAM6. 4 . 92 Those are changes that occurred in the code during the last several years. They inherently present a hardship case to people who had smaller homes in the past who always expected to have the ability to add on things such as a larger mechanical room once their family grew. But what the code did it incorporated an inerrant hardship to people by not only saying your home is the size that it is and when you bought this thing you had the ability to add on mechanical rooms and things like that because of the square footage but what it did was say that we are going to double penalize you because now things such as stairways 2 stories high count twice rather than once. And the mechanical rooms which never counted before now count. So had we not had these situations we would not be asking you for anything. We would already be entitled to those things. Charlie: Are you taking space out of this old area here out of the kitchen by adding this mechanical room now? Colombo: Yes. It represents about 47spft. Ron: The code has changed over the years generally in response to someone trying to take advantage of those loopholes. And it is the architects and the developers in this town who figure out a way to put a 6, 000sgft house on a 3 , 500sgft lot by not counting staircases, mechanical room, garages, crawl space, attic space and everything else which caused the problems we have today. I listened to what you said and you are saying years ago we could do all of those things. Well, years ago no one tried to get around it--a 3 , 000sgft house was fine. But now it is not fine anymore. Colombo: This is not a 3 , 000sgft house. We are talking about a specific situation. Ruth: The Adams had a mechanical room on their side--a substantial mechanical room which counted as FAR after the fact. Anne: I was confused by that. How could they go back in after the fact and-- Myler: Now it increases the chargeable FAR on the site which eliminates an FAR that might have otherwise been possible. I don't think we are coming here saying we should get some favorable consideration because the code has changed. What has happened is that because of the change in the code in some respects it is forcing us to look for other avenues to create the little space that we want. I don't know if that is really a valid point for basing our hardship on. It just explains why we are doing what we are doing. 8 BAM6.4 .92 As to where we think the hardship exists and reiterate what I mentioned at the beginning is that it is a subjective determin- ation. It comes in many different forms and shapes and flavors and colors. And in this case the hardship resulted from circumstances in the development of this property. It doesn't relate specifically to the site itself. It is not something that has to do with the configuration of the land or it's location and proximity and anything else. But it is nonetheless a set of circumstances which deprived Ruth of rights commonly enjoyed by others. And that seems to be the emphasis in the code. As I was reviewing this case for Ruth and reviewing the language in the code they go to great lengths I think the express that that is really where the equities should be balanced and measured in these kinds of cases. And that is where your job is is to look at the equities--at the fairness issue. Ron: The key is any hardship or practical difficulty not of the applicant's own doing. Myler: As I pointed out to you the circumstances surrounding the so-called waiver or agreement by Ruth--in analyzing that from my perspective as a lawyer I don't find any valid consent or relinquishment of rights on her part. Ron: I agree. Myler: I think the circumstances were devious at best--maybe worse. I don't think it would be fair to blame Ruth for that. I don't think that this hardship was of her doing in any sense of the word. The situation was such that she was taken advantage of in my mind. Obviously the Adams aren't here to defend themselves but that is my view of the facts and circumstances. So I think we have met that part of the test. This was something that she was simply unaware of at the time. And did not know of it till now when we started talking to the Building Dept about expansion plans. Drueding: In reviewing this variance we have a structure that either is non-conforming? Or is it not? Myler: According to our measurements, no. Drueding: Then this variance would create a non-conforming structure as far as the zoning code goes in area bulk requirements. So another part of the variance you would be giving is to increase a non-conforming structure. Charlie: They said it is conforming now. (Many people talking at the same time here) 9 BAM6. 4 . 92 Drueding: I am just putting that out to you. Charlie then asked for comments from the public. There were none and Charlie then closed the public portion of the hearing. Rick: This is just--somebody is just getting screwed on this deal . And I am very empathetic and contrary to what the Planning Office wants us to believe I am in favor of granting this minimal variance. Anne: I have to agree with Rick. The hardship was definitely not the applicant's doing in my opinion. I really feel that she was taken advantage of. If she had known of the situation I think that anyone in their right mind wouldn't have signed that if they knew what was happening. And our guidelines say you make circumstances- -we don't want to deprive someone of a right that is enjoyed by another. And the next door neighbor is the one that has taken this right and is enjoying it. It is not as if it is another house down the block that is enjoying the right. It is the attached neighbor. So I would be in favor of granting this variance. I also think it is a minimal variance--the impact--compared to what the neighbors have added on. It is so minimal . That is another thing that is in favor of this variance request. Ron: First of all I think the proposal is terrific. I think the way of handling the situation is superb. I really approve it and everything else. But then my quandary is what are we talking about in terms of hardship and practical difficulty? What is the justification in what we have to come up with? You both say you don't think that the hardship is the action of the applicant. It is the action of the neighbor and not of the applicant. I agree. However, we are talking about a legal entity here which is an owned divided duplex which means that if side A takes everything, side B gets nothing. You can't divide it. It is undivided. So what happens to A happens to B. That is the nature of the beast we are dealing with here legally. So I say the hardship resulted from the neighbor which is within the structure of the building itself and therefore the result of the actions of the applicant. Now I think that there is legal redress from the courts. And not from the Board of Adjustment. I think that the neighbors really took advantage of Ms. Hanrahan and she should go after them and nail them to the wall. But I don't think it is our responsibility at the Board of Adjustment to redress wrongs that should be redressed by the courts. And the code is very clear in stating that FAR is a very, very difficult 10 BAM6. 4 .92 thing to give away. And everyone over the last 10 years has been fighting the FAR war. To give away basically other people' s open space is what you are talking about. I wish there was some way I could grant this variance. I think it is minimal. I like what they are doing and everything else. My problem is that I can't jump the basis of the code. I would not vote for this variance and I don't like not voting for it. Now there are only 4 of us and I am saying I am voting "No" . That would kill this variance for right now. I wish there was some way we could come back and somebody else would come in here and pick up the 4th vote and vote "Yes" . I am not going to change my vote. Rick: Ron, in principal you are absolutely right. But this is such a simple solution. Anne: Why make the applicant go to court and sue for something that is so minimal? Charlie: I would like to rebut a little bit of what you said. What is a hardship? And what you are saying is that it is not a hardship. That is what you ended up saying. I consider that this is a hardship. If we voted the way you are suggesting we vote, you are going to cause a hardship and a practical difficulty. Because what you are saying is "Go to litigation. Take it to court. Make the neighbors-the Adams 's- take off the additional square footage that they are not entitled to--take it off the building--cut it off and give it back to Ruth Hanrahan" . Now the minute you suggest that then you cause not only a practical difficulty, you cause a tremendous hardship. And therefore you don't have a point anymore. I consider that this is a small request. Ron: Granted. Charlie: I don't feel that any of the neighbors would object to this variance knowing what the situation really is. Therefore their objections really do not address the actual situation like the height or the view or increase in FAR. Increase in FAR in this case is under the roof already. Let me point out to you why I think there is a perfectly legitimate reason to give them this. The minute you bring up the mechanical room from the basement, you are taking the space out of the present kitchen which then makes the kitchen impractical and too small to use. If you put the mechanical room which obviously is the only place to put it upstairs because they don't have a basement, you 11 BAM6. 4 . 92 don't have a kitchen left. So this makes perfect good sense. It is the only place where I feel that maybe we are going to be stretching it a little bit. The rest of it makes a lot of sense. It doesn't increase the floor area in reality. They are using it now. They are living in that space in an open situation. In the summer time they live out there. They sleep out there. So what you are really doing is imposing a hardship. I would be in favor of granting this variance 100%. And I don't think that you have got good grounds in your presentation. And you are perfectly willing to argue with me on it but I think a practical difficulty and a further hardship would imposed. Ron: I am not posing any hardship. I am not telling the applicant what to do. All I am saying is there are other avenues to pursue. I can give you an example. The applicant can sell the house and buy a bigger house. There is nothing stopping them from doing that. Legal redress. There is legal redress through the courts. That is one way of going about it. Another way of going about it is talk to your neighbor and say "Hey listen, I can't enlarge my house. I am screwed and everything like that. Is there anything we can work out?" I don't know if there has been any conversation at all with the neighbors about redressing the grievance here. All I know is someone is asking us for a variance. What I am saying is there are other avenues to pursue. I don't know if they have been pursued or not. It is not my responsibility to do that. But technically, under the code, people are asking for an increase above the maximum FAR. I don't like that. Rick: What if they had no redress? What if there was no understanding in those original agreements? What if they have no right to ask for that back? Ron: I would try to figure out a way that I could set this thing up where it would be--I don't know. The thing is that letter that was written or signed, I don't think that that limits the applicant under the law. I think that she has a right to go back through the courts and redress that. Maybe it is simply a financial-- Rick: No. What I hear from Dave is that they really have no grounds to go back. The agreements were so nebulous and so broad that they really don't have any recourse against the neighbors. They just got screwed. And isn't this the simplest way? Ron: My principle is this--I am opposed to granting a variance to redress wrongs between 2 owners of a property. Anne: When one has been taken unfair advantage of and the other one has something that is substantially bigger--she still has the right. 12 BAM6.4 . 92 Charlie: She had the right to it if the other people hadn't taken it. Anne: If they hadn't taken it, she could add another 500sgft. All she is asking for is 125sgft. It is really minimal. She has not come to us for the full amount. If the zoning--if the code hadn't been changed to include that mechanical area in the other half, she would have another sqft. Ron: I don't know anything about the other half. There is nothing about the other half of the duplex on there. I don't see anything. Their argument is based on a lot of information we do not have. It is basically some of the comments that have been raised by the applicant. I don't say that they are incorrect or anything. All I am saying is that to me it is just--there is no evidence. This is evidence that--they haven't convinced me that the hardship that they want to present is not of their own making. Charlie: My question now is, can we sway your vote at this point? Ron: No. Charlie then re-opened the public portion of the meeting. Myler: I don't want to re-hash what has been done. But in response to what you are saying maybe there is a little different way of looking at the situation. I appreciate the fact that you seem to want Ruth to be able to get some relief out of this. And that there is some sympathy in that respect. I have looked at it very hard and I am convinced that there is an opportunity to collect damages. That is all. Damages are significant. And they would compensate her for the loss of a valuable property right. And that may or may not be something we would pursue depending on the outcome of this variance request. But the bottom line is it doesn't give Ruth what she really wants which is a remodeled home that is functional and livable from her perspective. And so if there is really a feeling on your part that there should be some recourse here we wouldn't ask you to have what it is that we really want and not simply a lawsuit against her neighbor. Ron: It is not that. It is the way I look at the code. The way I look at our job in interpreting the code and so on. And basically what it is is that we are sitting as the Board of Adjustment to grant a variance. We are not here to settle legal difficulties or legal problems. There are other avenues for that and I have a problem in redressing wrongs that should be dealt with 13 BAM6.4 .92 through the courts. Now like you said-damages-absolutely. I think there should be substantial damages requested-- Charlie: That doesn't solve the problem. Anne: It doesn't solve the problem. And they still have the aggravation. Myler: I respect the fact that you don't buy- that and we really have no choice but to ask for a continuance. Ron: My problem is you are asking your neighbors and everything else to grant you something that they don't have themselves because-- Myler: We would not hold it against any neighbor in a similar circumstance from asking for this relief which I think you have the authority and the discretion to grant. Variances are an equitable relief procedure. They are set up to deal with situations like this. And I think it is fully within your power to do that without at all throwing away the whole purpose behind floor area regulations. This is a relief valve procedure. And based upon that is if the votes are stacked up 3 to 1 I think it is essential that we attempt to present our case to some other members. We would request this be continued. Colombo: I would like to make a point that when we present a package to the Board of Adjustment it goes to the zoning officer. Facts are established with the zoning officer and I take objection to comments saying that facts presented do not represented facts or we do not know what the facts are. If the zoning officer presents a report that says "These are the facts. They have been found in basis upon plans and research and they are established here and these numbers I agree with" . Those are established as facts from which you are to take your point of view. And I want to make sure that is clear for any future meetings. MOTION Rick: I move to continue this hearing Case #92-5 to date certain of Monday, June 8, 1992 at 4 : OOpm. Ron seconded the motion with all in favor. Ruth: I would like to make a comment about your legal recourse thing. I have been having a hard time with this because this is my neighbor and after 5 years and I thought I had a relationship 14 BAM6.4 .92 with this woman, I find that I have been totally violated. And to me there has been 2 ways that I had to deal with what has been dealt out to me. And one way is the legal recourse which is totally separate and one way is maybe still get some more livability to my situation. So I have looked at it as 2 avenues there and I question the fact that I would even go ahead and sue my neighbor. But I have to live next to this woman. I love my house. I love my spot. I want to make it more livable. And for me to have to sue this woman who is now divorced from her husband who initially started the action-- that is like a totally separate issue. And all that would get me is money--maybe--which would not really change the fact that I still have a house that I was entitled to have 500sgft on that I don't have now because she took advantage of me. I can't get that 500sgft back from the courts. CLARIFICATION OF CASE #91-6 DR. & MRS. EDWARD WATSON Drueding: This case was presented to you in 3 meetings. Dr. Watson wanted a garage. Charlie: He is right behind the Asia Restaurant. Drueding: During the minutes a deck was mentioned. And then when he came in for a building permit application--the point here is there was a motion which stated a maximum height of lift. So now he came in with a garage application showing this garage showing the height of lift. Now it has a railing on top of it. And that is up to 12 and 1/2 feet. Charlie and Anne: We did discuss a railing, and open. Drueding: Was lift the top of the structure? Ron: I think lift was the top of the roof line. Anne: We were not saying the railing is part of the lift. Charlie: We knew the railing had to go up 3ft6. Ron: They didn't say they were going to put a railing up there. Charlie: We talked about it. Ron: We also talked about a flat roof. We also talked about them bringing an architectural peak out from the existing guest house straight across the garage. 15 BAM6. 4 . 92 Drueding: In order to get this railing this stairwell--was this part of your hearing? Anne: No. Charlie: The stairwell was not part of it. Drueding: Well, that is the only way he could have the rail. That is why I am asking for clarification. Do you care about that stairwell? Ron: How does it impact in terms of bulk, FAR count? Rick: The house is surrounding this whole thing. No one is going to know that is there. Charlie: There was originally an exit from the second floor onto that deck. What happened to that? Drueding: That is what I was going to ask you guys. If you approved this assuming they were going to get onto the deck from the carriage house and not the rail that would then have changed what you have here. Charlie: I think it does. Ron and Anne agreed. Drueding: Should we bring them back? Charlie: Why are they putting in an outside stairway up to the deck? Ron: Because they are doing something else inside the carriage house. Drueding: That is correct. Ron: Which they are perfectly legal to do. Drueding: But if that had an effect on--if they indicated they were coming out of here onto this deck and they are in fact putting a stair out there to get to that deck, does that change your decision? Rick: I don't think they have got enough room even to put a door out there. Drueding: No, they don't. But is that what they represented to you? 16 BAM6. 4 . 92 Charlie: Very often we don't understand that there is not enough room, as here, for a regular door--whether there is a step up or a heating system or whatever. ? : If you talked about the railing we will bring the railing back inside the setback where it is supposed to be. Ron: I don't think that is important. Drueding: My point is he asked for a garage because he needed a garage for his car. And now he has a deck that encroaches in the setback. Rick: We designed this thing for him. We didn't want them to tie all this in and so we wound up with a flat roof. So what is wrong with having a deck up there? Drueding: A deck is FAR. Absolutely. Anne: It is useable. Charlie: Does this exceed the FAR when you put the deck there? Drueding: The point is it is encroaching into the setback. ?: We are bringing this back so it doesn't encroach in the setback. That is what I was trying to tell you. We will bring it back the 5ft so it doesn't encroach on that so it is 11ft. Anne: (reading from minutes) OK. Here is Michael 's comment. We are talking about the deck and whether we would have it and how high the roof would come. And Michael says--"The point is however we solve it we will not do an accessible or usable volume above the garage" . And he is saying "The point is we will not do an accessible or useable volume above the garage" . So I think right there--He can have the garage but he can 't have a deck and he can't have the stairs. Drueding: That is your clarification? I want to say Michael had a chance to be here. He was advised of this. Charlie: That wouldn't make any difference. It is in the minutes. Drueding: I am rejecting this because of my reading of this and I was just getting this Board's consensus. I am rejecting that 17 BAM6. 4 . 92 portion of this permit of the deck and that stairwell. MOTION Rick: I move we back up the Bill Drueding's interpretation of this variance on the basis of the reading of the minutes of our meeting of September 26, 1991. Ron seconded the motion with all in favor. MINUTES MARCH 19 AND 26, APRIL 9, 16 AND 23 1992 The minutes of these meetings were approved. Ron made a motion to adjourn meeting. Anne seconded the motion with all in favor. Time was 5:40pm. P 1 Jan e Carne , Cit Deputy Cl 18 NOTICE OF PUBLIC HEARING CASE #92-5 RUTH HANRAHAN 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, 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: June 4, 1992 Time: 4: 00 p.m. Place: Second floor meeting room, City Hall Owner for Variance: Appellant for Variance: Name: Ruth Hanrahan Ruth Hanrahan Address: 805 Bonita Drive Location or description of property: Lot 23, West Aspen Addition, Filing No. 1, 805 Bonita Drive. Variance Requested: Property is located in the R-15 zoning category. Allowable Floor Area Ratio for the lot is 5,028 square feet. Applicant is requesting a Floor Area Ratio increase variance over the currently built by 153. 68 square feet. 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 Jan Carney, Deputy City Clerk M E M O R A N D U M TO: Board of Adjustment FROM: Bill Drueding, City Zoning Enforcement Officer DATE: June 4, 1992 SUBJECT: CASE #92-5; RUTH HANRAHAN The applicant is requesting by variance to increase the FAR on the structure above the maximum that the Land Use Code allows. Representing the Planning Department, it is my opinion that if the Board grants a variance allowing FAR exceptions, it would be contrary to the reason the Code imposes FAR maximum house size. The maximum FAR figures were imposed after many public meetings and much discussion to control house sizes in each neighborhood. Therefore, the Planning Office opposes this variance request. cc: Diane Moore, City Planning Director Jed Caswall, City Attorney JUNE 2, 1992 Board of Adjustment Members: Bill Drueding has asked me to send you the attached regarding the Dr. Watson Case #91-6. I have attached the minutes from the final hearing on this case plus the site plan which was presented at that time. Also attached are drawings now being presented to Bill for building permit. Bill is asking you to review these presentations for clarification. 1. Stair to deck was not in submission. Does this effect your decision? 2 . Rail is 12 . 5 feet. Motion said structure to max at 11 feet. 3 . Did they have OK for the deck? Bill will be at Thursday's meeting. You can add this on to the end of the agenda. See Thursday, Janice M. Carney, City Deputy Clerk