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HomeMy WebLinkAboutminutes.boa.19931014 CITY OF ASPEN BOARD OF ADJUSTMENT OCTOBER 14, 1993 4:00 P.M. SECOND FLOOR MEETING ROOM A G E N D A I. CALL TO ORDER ROLL CALL II. CASE #93-18 BRUCE BERGER (CONTINUED FROM SEPTEMBER 30 AND OCTOBER 6, 1993) III. CASE #93-16 DR. & MRS. EDWARD WATSON IV. MINUTES MAY 13 , 1993 V. ADJOURN a� A� RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT _ OCTOBER 14, 1993 Chairman Remo Lavagnino called meeting to order at 4: 00 P.M. - Answering roll call were Jim Iglehart, Howard DeLuca, Bill Martin, Ron Erickson, Rick Head, Charlie Paterson and Remo Lavagnino. CASE #93-18 BRUCE BERGER - - - - CONTINUED FROM SEPTEMBER 30 AND OCTOBER 6. 1993 Dick Fallin, Architect for applicant: Using pictures and drawings gave description of property and explained this project. Our allowable FAR is 3 , 380 square feet. Including some basement area on the new addition that is under permit at the present. The new total FAR for the existing house including those closets is 2,866. 6. Remo: So you are increasing the non-conforming use. It is in the setback 2 . 1 feet. Fallin: And the portion of the closet that we want to raise the roof on is about 10 feet long. Rick: How big is this lot? Fallin: It is a 6, OOOsquare foot lot. Rick: There used to be a tennis court there. Fallin: It is 2 separate lots. The tennis court and the tennis building is on a separate lot to the east. Rick: Have these merged? Fallin: No. Bill Drueding, Planning Dept: The Planning Dept determined they were separate lots. Fallin: There was a re-subdivision. A recorded subdivision that divided the property into lots. Murphy owned it at the time of the subdivision. The lot that the main house is on ended up being 6,999.8 square feet. And the guest house lot ended up being 7,700.2 square feet. Rick: If a lot is larger than 6, 000 square feet in the R-6 zone does the setback for side yards change? Drueding: Yes they do. They get larger the larger the lot. Rick: When does it go from 5 feet to the next level? Drueding: It is so much per additional FAR. Minimal of 5, total of 15 per 6, 000. For your side yard setback it is a 6, 000 minimum 5, total of 15. It increases to 1 square foot to each additional 200 square feet. So if he were 6,200 it would be a total of 15 minimum of 5. The 200 adds 1 foot. Rick: In his case his side yard setback may be larger than 5 feet? Drueding: No. On that side he is minimum of 5. On the opposite side he has got more than required. Fallin: One of our practical difficulties is the nature of this existing victorian house. It is on a rather open parcel. The 2 pieces are owned by the same person and the new addition on the other lot we consciously designed both of these to maintain the open space feeling that has been traditional on those 2 pieces of property. A suggestion at the last meeting was why can't we add onto the other side of the house. Mr. Berger made a conscious decision not to use any more square footage adding onto the back of the house that we have a permit for now and to maintain the integrity of the existing structure as much as possible. It had been remodeled several years ago. It has a very unique character that we really didn't want to destroy the lines. We felt that an easy way to accomplish his needs in the living room was on the existing area that they have been using. Remo: The problem with that is that if there is a new owner he will still have the FAR to do with it whatever he wants unless it comes on the historic designated list. If you start accommodating for convenience then it is for that particular owner. A new owner suddenly gets a bonus because we have accommodated one person's problem and it is not applicable to the new owner and he has a bonus by us granting this variance. Fallin: We felt that had this been an older house that we were completely remodeling the exterior of the existing portion it would be a different story. We could have removed that square footage. We could have added it onto some other portion of the house to gain the same thing. In this instance we didn't want to do that. Amy Amidon, Historic Preservationist for City: The way the HPC section of the code reads right now, we don't have any review at all of this project. We didn't get to look at the addition of this house because it is on the inventory as opposed to being Aspen landmarked. So after looking at these plans with Dick my opinion was if they were going to be adding square footage onto the original historic portion of the house we were not going to get to review it. I would prefer that it would be in the location that he has indicated. It is not what we consider the primary facade of the house. It is tucked onto the side. Dick and I have talked about ways that he could protect the original structure and not confuse people as to when the portion was added on, etc. So I really thought the point was that this just seemed to be a more sympathetic solution to the house. Remo: This house is not under HPC review? Amy: It is but not until they demolish half of the house unfortunately. That is the way it reads right now. Remo: So they could add structures and gables and whatever dormers they wanted to and you would have nothing to say on that? Amy: There is a code provision pending but at the moment that is the truth. Remo: So your argument about holding to its historic because Mr. Berger doesn't want to add on it is kind of in question because if a different architect or a different owner goes in there he can do whatever he wants to do with it. Fallin: What we are hoping is that the new regulation will preclude that happening. There are a lot of instances in town and projects that we have worked on that would have been our recommendation not to do anything to the house. But the owners had decided to do that. Mr. Berger made a decision at the very beginning. He said "I don't want to affect anything on this. Let's do it all at the rear where it is not in the public view". That has been his attitude all along. Remo: Is this eminent Amy? Amy: It is going to be approached. And I am going to undertake it. It is ridiculous from my point of view the way it is now. Howard: Dick, do you know how long that closet has been on that? Fallin: I really don't. We have partial plans and the old permit that were not very complete and it doesn't even have a date on it. Bill: Charlie put those closets on there back 15 years ago. Howard: So when those closets were put on there they were probably done illegally. Remo asked for public comment. There was no public comment and Remo closed the public portion of the meeting. Ron: I basically feel that there is no hardship in this situation. There are 513 square feet of additional FAR that the applicant can use to do whatever he wants. Granting this variance would not eliminate that FAR in the future. It would just increase a non- conformity as it exists today. So I would not be in favor of granting the variance. Charlie: I still feel the same way as I did last meeting. I think it is a very minimal request. It is so small that I feel we should grant the variance. Howard: I have to go with Ron on this one. First of all it seems to be an illegal addition that was put on years ago. And all we are going to do is condone somebody doing that by having an increase in the floor area into a section that is non-conforming now. If somebody had given them a variance back then or the Building Dept overlooked it or something, that might be a different story. But in this situation by trying to take a closet that is external and make it into an internal part of the house all we are doing is granting a non-conformity which I don't think I could do in this case. Bill: I think we should grant the variance. I think the structure, the accommodation of the fact that the structure is there that we should accommodate his need to improve his living condition and put it inside the house. Remo: That smacks of convenience and we don't grant variances for convenience. Can you give a specific reason why we would grant the variance based on our own guidelines? . Bill: I think the practical difficulty is the fact that he has the space. The space is in the house and he is using it and he should be permitted to continue to use it. It should be expanded to accommodate the foot and a half rise in the ceiling to accommodate a beam that goes through the house. Rick: My decision has not changed since last week. I was hoping Amy would come in here and bring me to tears. That is not the case. My remarks are of record as of last week. I do have a question as to Ron's remark about this additional FAR that they would be getting if we granted this variance. That would be deducted from any future FAR. Ron: No. It has already been counted the way it is. Amy: There will be tears if they decide that they want the square footage anyway and they put it on the front of the house. That was my point. Ron: We can't stop them from doing that though. If there was some way to put a covenant on it. Remo: We could put a covenant to restrict until the new restriction comes into play. Amy: OK. I love that. Ron: The only problem there is I would rather give the applicant a chance to come back after the new thing is in place. Bill: With the addition how many square feet will you have in the house? Fallin: The entire closet is about 40 square feet. The portion that we are using is a little over 2 feet by 10 feet. Bill: And when you add the addition on the back what will be-- Fallin: It will be 2,867 with the addition. Bill: And you are allowed 3,380? Fallin: That is correct. City Attorney, John Worcester, was called in for opinion. Remo: We don't know if it is in our purview to grant a variance with covenants based on an ordinance that hasn't taken place yet. We want to prevent the applicant, if we grant him this variance, from building in another section of the structure until this ordinance takes affect and comes under the review of the HPC. We want to know whether we can do that or not. Worcester: It is my recollection from reading the code that you may grant a variance subject to certain conditions and those conditions would be what you just said. Andy Hecht, Attorney for the applicant: We could stipulate that we would not build until this ordinance is in place. Remo: You would be willing--the applicant would be willing? Hecht: Yes. Worcester: What exactly do you think the new ordinance would do? Remo: Right now if we grant the variance we are expanding on a non-conforming use. And that doesn't preclude the applicant from building in another part of the structure which the Historic Preservation Committee would not like them to do at all. When we grant the variance they can still do it. And we don't want them to do it until they come under review of the HPC. Worcester: Then I would make it, as a condition, subject to review of the HPC at whatever time-- Remo: At whatever time of an expected ordinance that may take affect. Worcester: Well, at whatever laws and rules and regulations that are applicable at that time. If the new ordinance is passed at that time-- Hecht: Well but it is not. They want to cover the gap. They want to assure that tomorrow we don't go and get a building permit before this law has taken effect. Amy: Right now the HPC does not have the ability to review this unless they decide to tear down the house and rebuild. That is what the code says right now because it is on the inventory and not a landmark. So I am going to be doing a code amendment and the Board is discussing whether or not they could grant this variance with the condition that the applicant didn't go ahead and build something on the front of the house which HPC has no review of. Worcester: I think you can go ahead and do that. Remo: So it would be a moratorium until that new ordinance would take affect. Worcester: That is certainly within your powers. Bill: Suppose they don't change the HPC regulation? Remo: Do we have to place a time limitation on this? Worcester: No. Hecht: We would stipulate that for any expansion on this we would go to HPC if we were going to increase the square footage. Ron: But it would be on the basis of current HPC guidelines and not some new guidelines that may come into affect. Worcester: You can say "Before HPC and whatever guidelines that are in effect at that time" . Remo: We can't interpret code anymore. We used to be able to do that. And so if we can't take it upon ourselves to do certain things that may interfere with other boards and commissions. Worcester: It sounds to me like what you need here is coming up with the right words that would fit all of your needs. Ron: If we are going to put conditions or covenants on it who would enforce it? Remo: Amy would for sure. She would know about anything that would happen with it for sure. Worcester: Oftentimes you have these variances and you grant them and they are reflected in the minutes but there isn't really an order of this body. One of the things I would like to do is have you all start using these orders so that those can be recorded. And then it will always be there and it will always show up. Right now it is only reflected in the minutes. Remo: So now what is the procedure for us in order for them to be recorded? Worcester: At this point you could have the secretary merely record those separately. Let me suggest that the applicant's attorney draft that order and bring it by the City Attorney's office for approval. Remo then closed the public portion of the hearing. MEMBER COMMENTS Ron: I have a problem. We are still increasing the non- conformity. Where is the hardship? I think everybody is bending over backwards to accommodate the applicant and I think we are digging a deep hole for ourselves. I am not so sure I want to grant the variance. Remo: I might have agreed with you. But based on Amy's comments this is not an objectionable addition. It is minor and if anything were to take place--that is where it should take place. Rick: They can still go to HPC and add another 530-- Remo: And HPC can give them a lot more. Rick: And we are going to give them an additional 75 square feet into a setback. Remo: Without our variance, if they come under review HPC can say "Just put it in" . And it would never come to us for a variance. They have greater latitude. Rick: I am actually in favor of granting under these elements. Ron: I don't think anything has changed under these covenants. I don't think there is a hardship or practical difficulty which is our guidelines. Rick: I am having a stretch. It is really a convenience to the applicant on this. Charlie: But there is a practical difficulty when you view the construction in there. Rick: It is self created though. It is created by the applicant. Charlie: You have got a good-looking building. And it takes nothing to keep the line. For a foot and a half of roof line why are we spending all this time? It is so ridiculous. I agree with Bill. It is nothing. There is nothing there. It is already there. They have a right to leave it there. MOTION Charlie: I make a motion that we grant this variance with conditions as discussed. Rick seconded the motion. Discussion: Rick: Subject to review by the City Attorney of Amy's draft. Remo: There will be a moratorium on any other construction on that building until this new code amendment takes affect and comes under the review of HPC. Ron: No additional square footage on that building until new legislation and HPC gives approvals to it. Bill: They are under construction on the approved portion on the back side of the building right now. Ron: Future construction beyond these current plans. I am not worried about the 28.67 square feet that they have gotten approved now. I am worried about the additional 517 or something square feet that they still have available to build plus whatever else they want to do to that building. That is what I think everybody wants to stop pending HPC input and approvals. Jim: If you just add a couple more words to that and say something to the effect that HPC does have to approve it if they do go for a permit before new rules come down. Ron: If we say they can't get it done until after new legislation goes into effect. Rick: Whatever Andy comes up with. Remo: Give it to John. And we would like to see it. Charlie accepted these conditions to the motion. Rick agreed for the second Remo then opened the hearing for further public comment. Hecht: I just want to say that I think the hardship is that it is very important to the HPC that this surface not be penetrated from the public view. And we are willing to impose that. It is not something that we benefit from or impose on ourselves. And I think it is sufficient for you. Fallin: We did volunteer to go twice to Amy for review of this to see if there was any other suggestions that she might have. I also informally reviewed it with Bill Poss, the Chairman of HPC, just to get his comments. He said he felt that HPC would strongly encourage not to penetrate that public facade on this structure. Remo: We appreciate your effort. Amy, are you aware of the new construction they do have for now? How does that stand in the eyes of HPC and you? Amy: I always know what is going on with these properties because Bill brings them in front of me. It is just that I don't always get to say something about it. I haven't really thoroughly reviewed the project but the less impact it has on the original structure the happier HPC is. Fallin: What is in progress now is an addition at the rear of the house--(using drawings he explained) We are more than is required for the setback off the rear. Remo: I wasn't concerned with the setback so much as the character of what we are adding to the building that didn't come under review of any historic committee. Fallin: It is a 1 story addition. It is in excavation stage now. Ron: If they came forward in 6 months and said they wanted to add another 525 square feet and we want to do it wherever, you would ask them if they didn't keep the historical nature of the building wouldn't you? Amy: No. Because at the time they did it they were allowed to. Howard: Dick, is this square footage that you are adding on included in the existing? Fallin: Yes. That is permitted and existing square footage. Roll call vote: Bill, yes, Rick, yes, Charlie, yes, Ron, no, Remo, yes. Variance granted. CASE #93-16 DR. & MRS. EDWARD WATSON Remo read application for variance. (attached in record) Diane Watson: 2 years ago I came here and the Board granted a variance for a garage. Remo: No railing on the roof--no deck or something like that. Diane: Right. We wanted to make this roof go all the way to the end. We asked if we could go all the way to the end with the roof so that we could put storage up inside there. And you all said "No" and you said you wanted a flat roof. So we put a flat roof on there. There is a little window coming out of my carriage house up above. And what my children were doing is climbing through the window up onto the top of it to get their balls and things like that because they play back there. That is their play area. And if you step out on it, it only goes up to about here. It is only that big and my kids are kind of wild. My Son has had 3 broken legs and stitches in his head 3 times and a broken arm and he is kind of a mess. Charlie: I am glad your husband is a doctor. Diane: My husband is never home though. I am always the one who is at the emergency room. Remo: You are talking above the garage? Diane: Yes. Remo: Where do they climb? Where is the window? Diane: Right here. And they come out of there and there isn't even anything underneath this. They go through a side way. They reach up over and go through. There isn't even something from there all the way to the bottom of the ground. There is just a little thing on the side that they climb through to get up there. And they play up there and even Mr. 's Son comes over and plays up there and some of the neighborhood children. So I felt we needed to put something up there so that they wouldn't climb through the window so they could get up there and get what they had to get and have a railing for safety reasons. And so Marty Draper who is my contractor--he came up with something that looked like this, that would be hardly noticeable. It is not like a real heavy victorian type thing. It is just very small pieces. You can see right through it. He put a stairway up there that has a hand rail all the way up. And he put extra little spicket things in there so that they couldn't even fall through it. That was the reason for doing it. Remo: Did you get a permit for all of this? Diane: Yes, we did. (Drueding shook head) Diane: We didn't get a permit? Drueding: No. Remo: That is the reason why you are here. Michael ?: Diane, let me explain historically what happened. When we first came in to ask for the garage we asked literally to continue the roof line of the adjacent building--to carry the visual across so that the addition was less of an addition. It was a continuation of the existing structure. And your Board requested that that not be the case although the area that would have been included under the attic had about a 3 foot headroom max. Remo: What was the reason even if that was added? Was that increasing the FAR? Michael: No. Rick: The mass. Michael: It was a situation where I guess the Board felt that additional 3 feet of roof or whatever it amounted to or 4 feet was not the right idea. They asked that we go to a flat roof and we talked about clearances for headroom for the door rolling and we went through a series of calculations and very specific dimensions. If my memory is correct it was 11 feet that was given to us for the building. We then went forward and had the thing erected with that just being a flat roof with a low parapet around it. That totally complied with the permit, with your granting of the variance. Subsequent to this--I was informed of this after the railing was in place. Subsequent to this I learned basically through my Son who does play with Mrs. Watson's Son occasionally on that roof that they were throwing Frisbees up on the roof. They started climbing out of the window and getting on the roof and all of a sudden it became a matter of some concern. Subsequent to that then Marty went to--you came down here or you spoke to Anne Austin or something? Marty should take it forward from this point and explain how it has occurred. Marty: I put the railing and spiral staircase in for egress and as safety for the kids. Charlie: What puzzles me is in our original variance, I talked about a railing. Marty: That is what the whole--your whole minutes on the whole thing talk about a flat roof, railing, deck all the way through. Charlie: And Bill Drueding said "If it is a deck, it needs a railing" . I said about the bulk and there is a big deal about bulk. And Michael just showed us 3 feet. 3 feet is not a big deal above. This is what they finally ended up doing. You have to have railing around a flat roof anyway whether you can look through the railing or whether it is open. It still makes no difference. You still have a line up there. It doesn't make much difference. If you are going to be up there on that roof, you have to have safety and Bill won't allow that without a railing. Drueding: As I recall your discussion was no railing on this structure. Ron: We didn't want it as a deck. Remo: We did not want a deck on this. Charlie: I wanted a railing all the time. Drueding: We discussed it and the railing was not supposed to be there according to my recall of that meeting. And it was not shown on the permit. There were stairs shown on the permit which I am reminded now because they were not part of this. Drueding: What is the height to the top of the parapet? Michael: 11 feet. That is what we stopped at. Actually we held the parapet--we had to go to low headroom tract for the garage doors. We went through a whole bunch of gymnastics to comply with the whole thing. Actually the way I see it is that what emerged was it became a safety issue and Marty I don't know who designed the rail but it is pretty good looking. Ron: I think it looks terrific. MPT Michael: It is non-visible unless you really look for it. Ron: Does anyone have a copy of the plans that we approved? Basically the motion that we approved--my recollection is that the plans that we were presented are not the plans that we are seeing here that I don't remember--we approved a one car garage and we talked about dimensions and how that the dimensions were going to be. And as I remember--I don't remember it being connected to the main house--to the guest cottage in those plans that we approved. Michael: It always was. Ron: I do remember and I am really quite clear about this that we felt that the one car garage was for the convenience of your husband only. If you sold the house the people who moved into the house have no right to that garage. Our basis of granting the variance was the fact that your husband was a doctor and he needed to have a heated garage in which he could have a car that functioned in our cold winter nights. It had nothing to do with the fact-- Diane: He is still a doctor. Ron: I know that. But if you sell the house and you sell it to me--I am not. So my reasons for granting your getting that variance would be different from yours. I would have no right to get the garage because I am not a doctor. So we were granting a minimal variance based on the fact that your husband is a doctor and that at some time in the future you could sell this house and we would have granted an encroachment or a rear yard setback on a piece of property that really had no bearing on the new owner. Michael: The situation is that it is a flat roof. Somebody is going to get hurt. Drueding: He is coming back now asking for the variance to keep this railing. Ron: Right. Keep the railing and the deck. Bill: And the staircase. Diane: It is not used as a deck. The children are not supposed to go up there. But they are getting up there anyway. Drueding: The deck is not the problem. It is the railing that is the problem. They can put a deck there, by building codes, by requiring a railing. But the building code I can't approve that if it is without a variance. And they cannot have the stair there unless we approve the rail. You can't have a stair going to a deck without a rail. So it is all contingent upon you permitting this new variance. Ron: I am looking at the plans that were presented. Remo: I don't know if that is plans. That shows the spiral staircase. Ron: Yes, but it was taken out. It was not granted. Drueding: It was not granted. Charlie: It was all in there originally. Remo: (To Diane) So you were aware of that of not granting the- Diane: Yes. I was aware that I was not supposed to put a railing up there. I put it up there for one reason and one reason only. Remo: But you could have barred the window. You could have put a bar on the window and the kids would never have gotten up there. Drueding: That is required egress. Remo: The top of a roof? Drueding: It could be no roof at all. You just have to be able to get out that window. Remo: What if they didn't have a window there? Charlie: They have to have a window there. Ron: Is there a spiral staircase inside? Diane: No. Ron: There used to be. Diane: There is a ladder. Ron: Now it is a ladder. You took that spiral staircase out of the inside? Diane: Yes. And it is a ladder. Ron: Does that happen to be the one outside now? Diane: No. I have 3 letters here from neighbors of mine who are in favor. Mr. Grossman, Mr. Crumb, Maria Staples and the people next door which is the Hotel Aspen. Rick: Ron, why did we not want them to use this-- Ron: Actually I think they came to us twice. The first time was a 2 car garage and was taking up the whole back yard. We had a problem with actually making a turn and seeing around turns. I don't see a hardship or a practical difficulty beyond the fact that the applicant is a doctor. And the hardship will leave when the doctor leaves. And therefore whatever we do today we will have to live with for the duration of the existence of this building. I do not want to do anything based on aesthetics--the staircase, the deck and everything else. I don't care if it is attractive or not. I will try and solve the practical problem that the applicant has brought to us. I will be willing to grant a rear yard setback variance. It is a combined variance for a minimum garage that is one story. That is 10 feet or 11 feet--not 15 feet. My recollection of this was that we were giving them permission to build a single car small-as- possible heated garage for the convenience of a doctor. We were not giving them permission to add an addition which included a sun deck, railings or anything else. We specifically denied that--an access to that roof by denying permission to grant that circular staircase. Charlie: We also didn't let them go to the corner. We pulled the building back. We gave them absolute minimal. I question whether that was wise because I always was in favor of the railing and the stairway. Ron: But we voted for a one car garage with dimensions specified on the footprint not to exceed 11 feet. That is what we granted them. Now the applicant exceeded that variance. They have built the deck on the top and a railing around it which we specifically denied. Remo: They could put the deck in but not the railing. Ron: It can't be a useable roof is basically what we said. Diane: But I have a hardship now. I have a legal problem with other children getting up there. Ron: That is a hardship that you created. Diane: If a child goes up there and falls off and hits his head and busts his head open I have a legal problem. Ron: Yes you do. I did not design that garage. Michael: You did. You made a tradeoff between allowing us to continue the roof line which would have changed the circumstance and so forced the flat roof. Ron: What is the flooring of the deck? What is it made out of? Michael: It was a roofing material. There was no walking surface on that when it was approved and when it was completed. We came in with an application for a building that extended a line which was probably better than a flat roof. Secondly there never was an intention or an idea that we would want a roof or a flat deck from a design standpoint. Your requirements were to take that roof off. It was a tradeoff to take the ridge and the upper part of that off which resulted in a flat deck which now catches Frisbees and balls. Subsequently we have learned that the kids have been climbing out of a window collecting their things and then scampering back in the window. Moreover, as Marty discovered, evidently there is not a legal egress out of the upper level other than through that one window. Had we found that out we would have had to make other changes to this building to get legal egress out of it. Remo: That's right. Michael: By making that an egress, which is what Marty did on behalf of Mrs. Watson, we now have a condition where we have got a problem. We all have been part of it. If we take the railing and the steps away then we have got to come up with another route of egress and will be back before you asking for a change in dormer sizes and window sizes and things of that sort. Remo: Not necessarily. If we had not granted you the variance, that window wouldn't be there now. Michael: The window was always there. Remo: No. With a roof that came up to a point? Michael: That is correct. MPT Remo: It wouldn't have been there. That window would not have been there. Therefore you would have had to have another window either large enough to count as egress--so you can still do this. Michael: Your point is exactly right. We would have to come back before you. Remo: Why would you have to come back before us to get a window for egress? Michael: Because the window would be placed on the building which is within the setback. Because we would have to change the dormer size and the window size. Drueding: The current window is legal egress. Remo: But it wouldn't have been there had we not granted the variance. If he wanted the original roof to come to a point, that window could not be there. MPT Ron: Has everyone read the minutes from that meeting? I based my comments on what the applicant had presented to us. And it was actually the second meeting we had on this. The original one was 2 cars, 15 feet high and everything else. It was a big structure and we were trying to minimize it. Howard: I just want to make one point. If you have a legal egress which is what is required by the Building Dept which you apparently do have on the south side window. And the fact that you can board up that window or do whatever you want with it, you do not remove your egress from that loft area. You still have a second egress. Is that true? Drueding: I don't know whether that window is required egress. A bedroom needs egress. As a loft I do not know that. Howard: Let's say that it is a bedroom. If this window is large enough which it appears to be from what I can see. There is a window on this end of the building as a secondary or third type of egress. You could put bars on that and it would not be a legal problem. You would have your second egress. Diane: Let's say there was a fire. That particular one--if my child jumped out of there would be falling down a whole story. MPT Howard: I am not making that point. It is a required second egress out of the bedroom. You have a second egress. I don't care if you have got a ladder outside of it or what. This is all the requirement. My second egress at my house is not on the side of the building where the roof is but because of convenience I put it over on a wall and have to jump out the second story if I was that big. But the point is you do have a second egress and your hard- ship is not that you need an egress. Your hardship is that you have kids running in and out and out onto your roof. You can stop that. That is my point. You can stop that by putting bars on. Michael: I don't think those other windows meet egress measure- ments. I was told that that window in the end that we are speaking of that goes out onto the deck is the only one that meets the dimensional requirements. Remo: What I don't understand is why would they have to come to us again if they enlarged that window to make it an egress window. Drueding: They don't. Remo: I thought that's what Michael told me. Michael: That's on the encroached area of the house. On the south side. The one on the alley side. Remo: Would he need to come to us for that? Drueding: No. You are not increasing-- Remo: So there is an out. Howard: I have another question. You said that that was roofing material on the roof when it was built. What is on there now? Is it still the same roofing material? Diane: Roofing material and wood. Howard: You put a deck on there. Michael: When was it completed, Marty? And when were the changes? Diane: August? Marty: Last year. Diane: Oh, last year. Howard: Is that deck the entire roof area, Marty? Marty: Yes. Howard: So you put a deck up there. It is not just an egress. It is for somebody to walk from one place to another to get down. Marty: Mumbled something about roof damage. Rick: It is absolutely perfect for a deck. It really is a great spot. The hardship here. is that they got caught. I would have done this if I owned this. I am sorry--but that's probably what I would have tried. Jim: On those plans--is that the plan you just showed me a picture of that had that picture drawn on it? Remo: That is what was denied. Jim: It was denied. They asked for it. It was denied. And then they put it back? Remo: They put it on on their own. Which is really kind of flagrant. I really don't like that. That bothers me a lot. Remo asked if there were comments from the public. There were none and he closed the public portion of the hearing. MEMBER COMMENTS Jim: My first comment would be that I am sorry that they are asking for forgiveness instead of permission in this case. Especially since it was reviewed and denied--that part was denied in the beginning. That is unfortunate for them at this point. Secondly I think they really needed to find whether that space is a sleeping area and is required to have an egress. If it is an egress window there is another thing that has to come into play. Where does parental guidance come into play in this particular situation? You can retrieve things off the roof all day long. But who is to retrieve them? There are rules and regulations that have to be set up in this particular household. "Don't go on the roof. " At the applicant's request Remo opened the public portion to read letters. Letters from Maria Segall, Tom Brinkmeyer and Ed Grosse stating their support of this variance were read at this time. (all attached in record) There were no further comments and Remo closed the public portion of the hearing. Bill: Jim summarized this as far as I am concerned. Charlie: Well, you know Jim's statement was a very wise statement. He said exactly how all of us probably should feel about it. But I originally felt very strongly that that should have a railing and it should be able to be up there. And when I look at those pictures I see--we make too big of a deal out of nothing. Here is a situation which nobody objects to. It doesn't hurt the City. It doesn't hurt the neighborhood. It is absolutely something that should have been there in the first place. We shouldn't have objected to in the beginning. When we made them put a flat roof on this building that is a natural-- absolutely natural for it to be there. Now I don't want it on my conscience if somebody falls off that roof. I would vote "Yes"--leave it alone, let it be and let's forgive this situation and really let them have this thing. I don't see what is the big thing that we are making because originally we said it shouldn't have a railing on it. I didn't agree with it. I don't agree with the majority of the members and I think this should be left alone. It is a very, very nice treatment. It is a victorian treatment. I think it is beautiful the way it looks. We accomplished the fact that we shouldn't have the massing of this building. We accomplished that by making them put a flat roof on it and putting a 3 foot--not any higher than a 3 foot area around that and making the ceiling very, very low so the garage he wouldn't have a problem having a door opening in it. We accomplished that. And this railing is absolutely not objectionable. so I would like to see it left alone. I think we make much to much of a deal out of these things. Howard: Bill, is this a legal railing as far as any architectural requirements? Drueding: Architecturally, no. Howard: It is fine the way it is. Drueding: I don't know whether it meets building code. Jim: It looks like it does. Drueding: If it meets building code then there is no zoning--all of the setbacks-- Rick: Charles stole my thunder again! I agree with him 100% on this. Howard: This is a tough one. The fact that they were allowed to put a deck which they have already put up on top of a garage that you guys made them put a flat roof on puts the Board in kind of a touchy situation. I normally would not be in favor of this variance because I think that being when I was a young boy I used to climb on the roof and climb up trees and fall out and had numerous operations because of that. And it certainly hurts. Remo: Did your Mother tell you not to do that? Howard: My Mother did tell me not to do it. But I did it anyway! So I know boys will be boys and they are going to climb up there and do whatever they are going to do. The fact that it is already existing and it really doesn't have any major visual impact although it is adding to a non-conformity that you guys granted before and the idea according to what Ron said was because it was a doctor's garage. I would like to have a garage myself but it is a tough one. I don't think I would grant the variance normally. But if I was a voting member in this situation I probably would lean towards giving the variance. Charlie: We reduced it a great deal from what they had asked. Howard: That would have a lot to do with why I would do that. Charlie: We did everything we could to bring it down to absolutely minimum. Not only in size but also in bulk. Howard: What I don't like is when someone goes behind the law so to speak and goes ahead and does something and then comes in and asks for permission to let it stand. Charlie: But it isn't for financial gain. It isn't so they could sell the house for more money. It isn't for anything like that. When you talk about safety. There are other emotions involved. If it was you you would feel the same way about it. Howard: Is it possible to put a covenant in that says when they sell the house they have to remove the circular stair and the railing? Remo: I wouldn't fool around with that. Howard: Is the Building Dept going to be requiring them to pay their fees? Drueding: They will have to get a building permit for the work that has already been done. Ron: I think that what turned out on this thing is wonderful. Aesthetically I think it is extremely pleasing. I like it a whole bunch. However I have really major problems with this because #1 we are a community of laws. We have laws that have been passed that we are governed by. We have procedures for this Board that we are supposed to follow. They are really clear-cut. Our directions are very specific. Practical difficulty or hardship. We are supposed to treat everyone equally. We have granted people variances and we have turned other people down for variances. We rendered our decision 2 years ago. At that time we granted a major concession for the applicant in terms of giving them something they didn't deserve under the code. And that was a garage. We placed certain provisos on those conditions. One of those was that we were giving them a garage. We were not giving them a sun deck. We were not giving them access from the second floor of the carriage house to the top of the garage. We were not giving them a circular staircase or anything else. The applicant ignored the procedures that govern these matters and went ahead and did what they wanted to. The applicant created this problem by building a structure that causes this problem where children are going to be unsafe on the roof. I think there are other ways of handling that safety problem. I would not grant the variance. Remo: Charlie you have to remember that this was a variance to begin with when we gave them a minimum or maximum whatever that came to us for a variance. It wasn't something that was theirs by right and we initially granted them a variance. The variance was predicated on the convenience of a doctor. If anyone else would have come to us, that variance would have been denied. But because he was a doctor and because of the way it was presented to us-- that he had to get out maybe in an emergency--it was an emergency for help and care. We took that into great consideration in terms of those things that a doctor would have to go into the garage and get in his car and not worry about snow in the front. That he could get out and go to see his patient. If it were someone else we wouldn't have granted this variance. And all of these other things--the railing--it is just a matter of an extra amenity to the house that had nothing to do with the doctor's profession and what had to do with that garage and it's being heated so that he could get into his car and leave. And the idea that we definitely told them that we did not want the staircase in there or the deck and they did it without even inquiring again whether they could. They could have come to us again and said "We really want you to reconsider a railing and a spiral staircase". No they went ahead and it isn't even something new. It is the same consideration that came before us when the variance was first presented to us which we denied. It really galls me that they took it upon themselves to just get rid of that denial that we put in in the first place. And so I am really opposed to granting this variance in the strongest terms. And I think there are other considerations regarding the child that can be taken care of by a larger window, a different egress, bar the window. I just don't think that is one of the ways to solve the situation. So I am against this variance. Remo then re-opened the public portion of the hearing. Michael: Prior to installing the railing I am told that Marty went and met with Anne Austin. Ron: Anne Austin isn't a member of this Board and hasn't been for about a year. Howard: I want to know why there wasn't a building permit. Was it because you knew you were going to be turned down? Is that the deal? Or you just didn't do it because you didn't feel like it? Marty: That was over a year ago. That was when the Board was meeting and you turned it down. But it was because of the minutes. It was nothing to do with anything else. There is somewhere in these minutes that says that-- Howard: You had a permit when you built the garage. And that denial includes the spiral staircase and the rail. Marty: The prints has a spiral staircase on it. Howard: Right. But it was nixed. Drueding: The red lined out is not part of the permit. Howard: Right. The red lined out is not part of the permit. So the railing stands as being an illegal situation. Drueding: Right. Howard: So whether Anne Austin said it is OK or not it doesn't matter. Michael: Your point is well taken. I just want to make sure that you understand that evidently an attempt or some communication did take place. Remo: And Anne wouldn't have anything to say about it just as a member. And she shouldn't be talking to a potential applicant about any matter that might come before the Board. Marty: It was before the whole Board. We came. We put in a variance. It was just a quick one-afternoon thing. You guys were all here. And the only reason you turned it down was because it said in the minutes that-- Ron: And there was another time you came before the Board again. At the original meeting there was a larger garage and it was requiring both a rear yard and a side yard setback. And we said we would not grant that variance. And they came back and restructured their garage so they eliminated the need for a side yard setback. MPT Charlie: If we vote negatively on this we are forcing them to take everything down. Remo: We all know what the ramifications are. And I think we need a motion. MOTION Ron: I make a motion approving Case #93-16. Rick seconded the motion. Charlie: If a man makes a motion to approve and then votes negatively-- Remo: He can do that. Ron: That is proper procedure. Roll call vote: Bill, no, Ron, no, Rick, yes, Charlie, yes, Remo, no. Variance denied. Marty: So where do we apply for another now? Remo: To present your plans? It will go through the whole motion again and will go through he City Clerk and it will come to us again for review. But you have gone through it. You know the arguments. Drueding: You are going to re-apply? Marty: Yes. Drueding: You will have to change it a little bit. Marty: OK. Drueding: Change your variance request. Ron: Bill, we have a safety problem here we have to deal with. And I would like to direct you guys that as soon as possible to determine whether that window is necessary for safety reasons. If it is not I want to get it shut down. I don't want anybody using that roof until they get permission to use it. Drueding: You cannot do that. Ron: Can we do anything? Can we ask them to remove the railing and the staircase? Drueding: I am asking them to remove the railing right now. Ron: Then I think if the applicant doesn't want to take the steps necessary to render that roof unusable now until they get a variance I think that we ought to require them to remove anything that would make it useable. I think we have a safety problem here. I don't think it should stay in limbo until they go back through the process. I think that something should be done right now. Howard: At the same time, Marty, I would like to have you measure this other window just to establish whether it is an egress window or not. Drueding: The thing to do is have these people decide when they go for a variance just hold off on anything. Ron: But then they are going to use the roof. Drueding: We can't stop them from using the roof. Remo: You have gotten a decision on this variance and you can act on it. Drueding: Yes. I can make them tear that thing down. But I don't want to do that. If they are going to pursue another variance I would prefer not making them tear it down. Ron: What kind of liability does the Board have it we allow an unsafe condition to exist although we have rendered our decision on this? Drueding: That is not your job. Bill: We don't have any liability. The family has a problem and they can solve their own problems. Howard: I would also like to have a building inspector inspect the existing stairway etc and make sure it conforms with the codes. MINUTES MAY 13, 1993 Rick: I move to approve minutes of May 13, 1993 with no corrections. Bill seconded the motion with all in favor. { Janice M` Carney, Cit D uty Clerk