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HomeMy WebLinkAboutminutes.boa.19950427 RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT APRIL 27, 1995 Chairman Remo Lavagnino called the meeting to order. He requested roll call . Answering roll call were Charlie Paterson, Rick Head, Ron Erickson, Howard DeLuca, Jim Iglehart . Absent was David Scott . CASE #95-2 GARY MOORE Chairman Lavagnino stated he owned property directly across the street from the Moore property and under contract for June 16 , 1995 closing. He said he had no vested interest in this variance and the sale of his property is not contingent on the outcome of the Board' s decisions . He said he was confident that he could give a fair, impartial, and objective consideration to the applicant according to guidelines, however, to remove any semblance of impropriety, he excused himself from voting on the case and voiced his comments from the floor. Vice-chairperson Paterson assumed the chairmanship. Paterson requested Notice of Posting (attached in record) . He read the variance requesting a 7-1/2 foot encroachment variancy to the front-yard setback. The applicant was not represented by counsel . Gary Moore, applicant, stated that he was requesting a 7-1/2 foot front-yard setback, parallel to Spring Street . The property line is about 120 feet long. The building envelope portion of that property line is approxiamtely 87 feet long. He asked for a 32 foot section of the house into the 7-1/2 setback. The reason is that on the other edge of the building envelope which borders the river, there is a large grove of cottonwood tres . The trees are 75 to 100 feet tall, many larger than 12 inches in diameter. He did not want to cut down the trees, and by saving the trees he could shield the house from the Rio Grande Trail . Also, by saving the trees it would keep the ground in tact due to the root system. Between the property across Spring Street, from setback line to setback line there is approximately 67 feet . By moving the house over he would still have 60 feet in between the two homes . He presented photographs for the Board to view of the site . Stuart Lousk, the designer, showed the area through drawings . Paterson asked, what was in the shaded area (shown on drawing) ? Moore answered, the livingroom. Igleman asked, what maximum square footage could be built as it sits now? Moore stated 4150 , plus the garage (500) , a sq. ft . bonus of 250 . Moore stated he is not going to the maximum floor area allowed. BOARD OF ADJUSTMENT APRIL 27, 1995 Paterson read into the record a letter from Denice C. Reich, property owner directly across the street from the Moore ' s opposing any additional square footage . Also, he read for the record a note from Eugene Seymour, M.D. , another neighbor, who had "no objections" , and a letter from another owner of property in Oklahoma Flats, Richard W. Volk, who gave his permission and authority. (All three letters are attached in record. ) Erickson asked if Moore owned the propety. Moore replied that he was under contract .- Erickson asked what the hardship or practical difficulty was for Moore . Moore stated, the trees . Drueding, Planning Office, stated that removing any tree 4-1/2 feet and 6 inches in diameter needed an approval from the Parks Department . George Robinson of the Parks Department spoke and stated he went on site to look at the trees with Moore and spoke with him regarding his plans . If Moore removes the trees he must get a permit and must have a mitigation plan to replace the trees of equal value . Leslie Lamont, Planning Office, did not advocate either way on this variance, but did want to inform the Board of the process that this parcel has gone through. The project had to go through mandatory review voluntary compliance with the Overlay Committee, and because the original stream margin review was done on this parcel over three years ago and was vested, the vested rights have lapsed and the code has been amended; he is required to come through the stream margin review process . Because he is building an accessory dwelling unit, he is also required to do a conditional use review, which is a public hearing. Lamont stated Oklahoma Flats, like all property along the river, has a PUD overlay over the zone districts, and the PUD review process allows an applicant to request and usually vary side-yard setbacks, rear-yard, most dimentional requirements, except FAR. The reason this is on land along the river and in Oklahoma Flats, is so we can work with applicants to try and get them to pull homes away from the river to save vegetation, however, the PUD review process is a full two- step process; public hearing at P&Z and public hearing at City Council and then a second meeting of the ordinance . It is a very arduous process . With this meeting, it will be the Moore ' s third. Head asked if the vested rights will be honored that have already expired. Lamont answered, they will not . Head asked when the building envelope was created, was it taken into account the amount of trees that would be required to be removed. Lamont stated, not really, and that was the recommendation over three years ago, that no building occur beyond that line . That typically, for properties along the river, usually the property boundaries go in the middle of the river. This building envelope is about 37 feet back from 2 BOARD OF ADJUSTMENT APRIL 27, 1995 the bank. DeLuca asked about a sketch showing a porch area off a wall . How far is this proch area to the upstairs wall? Moore answered, 4- 5 feet . Paterson opened the meeting to public comments . Remo Lavagnino, neighbor, stated that he guessed this was a P&Z approved building envelope for vested developmental rights in 1990 , for three years . It was established after flood plan and stream margin review. If the trees were of concern, he said, he did not feel they would not have included them in the building envelope . One of the stream margin review criteria, is considerations of trees and repairing vegetation. Apparently, they did not consider these threes indispensable . The applicant stated that he will save 11 trees, 10 of which are 10-12 inches in diameter. Lavagnino stated he counted one that was 14 inches, and on a plan submitted to the Board, he counted only 7 . He stated that there would still be 28 trees standing, 26 are stream-side, and 16 of the 26 are 10-12 inches in diameter. He stated he had a legal , non-conforming log of record; it had 12 , 630 sq. ft . , 2660 which are under water, leaving a net of 9 , 970 sq. ft . It is a deficiency of over 20 , 000 sq. ft . , in a zone that requires 30 , 000 sq. ft . The land is vacant, the building envelope is established, the trees are where they are for where one wants to put a house on the property. The applicant can design a house to accommodate those threes, however, if he wishes to design a house that takes out those trees, it is not incumbent upon this Board to accommodate that design by granting him a variance . Moore stated there was a conflict here . The last 12 , 630 sq. ft . and only 20 sq. ft . is under water. The lot line doesn' t even go to the river in some cases here . In the southeast corner of the lot is a pie-shaped section about 3 ft . by 11 ft . long. Lavagnino stated his information was taken from Vine Associates for Volk Stream Margin Review, December 28 , 1989 . It is old, but this was the letter to Leslie Lamont in which this parcel shows that 2 , 660 sq. ft . is under water. If something has changed, that ' s fine . Moore stated the current survey was done by Schmueser, Gordon & Meyer, who also did the engineering on the stream margin. He showed on a map the river edge and survey was done just last month. Lavagnino stated that the bank that Moore speaks about and the natural features at one time that was where the river was . The bank was not changed by the river, the bank was changed by illegal dumping of fill on that property. You are dealing with a piece of property with the way it is . 3 BOARD OF ADJUSTMENT APRIL 27, 1995 Pauline Meyer, property owner at Oklahoma Flats, spoke in respect to old Aspen and the era' s flavor was preserved until last year when she felt it was scarred by the big homes and undergoing a change . She walked the property with Moore and she stated there was a discrepancy in the amount of trees he stated he had to take out from what is actually there . She felt he should build back in the original envelope . George Robinson, Parks Department, stated that when you build around trees you have to have a certain setback away from the trees to keep adequate roots . Most of the time the minimum is drip line of the tree . DeLuca asked, in such a situation as this, an 18 in. diameter cottonwood tree, how far away from that tree should we build? Robinson stated on a 12 inch tree, you can be 10 to 15 ft . from that tree . It depends on the tree and the crown of the tree, the larger the crown the bigger the drip line . DeLuca stated, he felt there were a lot more trees involved than we are talking about here . Robinson stated that if any trees die, Moore is responsible to replace them. Debra Moore asked the Board to take into consideration the Rio Grande Trail, directly across from the Moore property. There are a lot of pedestrians and it affects those looking onto the property. She wishes to preserve the trees so the majority of the public will not be impacted. Lavagnino asked if the Moore ' s were looking at keeping the Rio Grande from looking at our house or is it our house looking at the Rio Grande property. It would seem to me that they would plant trees if there was a problem; they have an option. Erickson asked George Robinson of Parks Department if the applicant had come to the Parks Department and been turned down for permits or permission to remove any trees on his property. Robinson stated, no, not yet . Paterson closed the public portion of the meeting. Head applauded applicant on the design, he felt it was handsome and very creative in trying to save as many trees as possible, however, he stated it was a brand new project and plenty of room in the project not to cut down one tree if designed in the fashion to take advantage of that amenity. He stated he would love to pass this proposal , but he had problems in crying to figure out where the hardship was . There were some practical difficulties that he could see, but he could also see where the square footage could be placed elsewhere and still mitigate the tree concern. It is more aesthetics to the applicant and something the Board should not be basing its considerations or deliberations on. 4 BOARD OF ADJUSTMENT APRIL 27, 1995 DeLuca sated he felt the cottonwoods were not a real shelter, he considered them to be a nuisance because as they get older they fall over and land on your house, and felt if it was his house he would want to get rid of them and plant trees along the bank that were a shorter hedge-type, if considering privacy so it wouldn' t ruin the view. He had trouble figuring out what Moore was gaining, was it a cost situation in removing the trees, getting more of a backyard? He questioned the gain for the applicant by moving the house 7-1/2 f eet . The one thing that he did like was the fact that the 7-1/2 feet is for the porch. The upper level is only 4 ft . into the setback area. That is the most mass that anyone will see once trees are planted for the applicant ' s own privacy. He stated that if Moore moved that 4 ft . over and went for a 3-1/2 ft . or 4 ft . setback it might be different - Moore won' t lose as many trees if he goes with the original footprint . He stated he had trouble granting a variance just because of the trees, and did not see a hardship . Erickson had the same argument . Since he did not know what the situation would be with the trees once the applicant gets around to filing all his plans, he was not sure if he would be prohibited from tearing down the trees or not . If a variance was granted and he goes in with a landscape plan which calls for tree removal, then the variance would be granted for nothing. He felt if the applicant had come and said he had tried to build the house and stated three different city departments have come down on us and we cannot build the house because of destroying all the trees, then Erickson said he felt there would be a hardship . He agreed with DeLuca regarding the cottonwood trees . He stated he would not grant a variance . Iglehart said he concurred with the above Board members . Most of this thoughts during the introduction had been along the above stated lines . He felt that it was difficult for him to see the hardships, especially when starting from scratch and being able to build around. He felt the possibility was still there to build the house, although some of the trees would have to go, however, through the procedure that Parks has, one could put some more trees back. He found it difficult to see a hardship or practical difficulty in this case . Paterson felt it was a real practical solution to a problem and felt the 7-1/2 ft . really didn' t make a difference . He stated he would be the only one in favor of the variance, but would be outvoted. He stated he would be in favor of trying to save as many trees as possible for various reasons . He did agree with most of the Board that, conclusively, it has not been proven a real hardship or practical difficulty because the house can be built without moving it to the back. If the Board was more inclined he stated he would vote the application as a yes . 5 BOARD OF ADJUSTMENT APRIL 27, 1995 A discussion between Board members commenced, and following, Paterson again opened the meeting for public comment . Paterson explained to Moore the procedures and asked him if he wanted the application tabled and the need for 4 affirmative votes . Stuart, the designer, asked for tabling of the application. Debra Moore also asked for tabling. MOTION Head moved to table Case #95-2 to Thursday, May 25, 1995 . DeLuca seconded, voting commenced, and was unanimous in favor; motion carried. CASE #95-3 STAN MATHIS FOR JOHN ELMORE Remo Lavagnino took chairmanship, and opened the case . Owner seeks variance from the required open space in the RMF zone . Affidavit of Posting was presented (attached in record) . Stan Mathis presented and introduced John Elmore . He carried through on a little history to demonstrate hardship and/or practical difficulty, and he showed a site plan of the property prior to development . August of 1989, when the project was started; they were the first project to go through the enventory of the HPC at the time where they graded you from 0 to 5 . The parcel was graded a 1 . They did not have to go through the process, but since they were the first, they rather got "sucked into it" . They went through the process for one year and a half and finally developed a site plan that the HPC liked. The owner agreed to many of the recommendations of the HPC as long as he could build a 6 ft . 0 in. high privacy wall along a portion of the site bordering Original Street and an alley in order to create a private yard and as an accoustical barrier. The yard area on the Original Street Side was a result of HPC requirements . They are left with a yard that is next to one of the busiest streets in town and there is a parking garage directly across the street . In the give-and-take with the HPC, the one thing important to Elmore was to be able to have a privacy fence to shield the yard. At the time the property went through City Council it was one piece; Elmore took it through a lot split and even though in the RMF District, City Council approved, but it could not be RMF anymore, it had to be a single family residence - both parcels . In the RMF District it is required to have 350 open space, in the R-6 zone, which the lots meet requirements, there is no open space rule . 6 BOARD OF ADJUSTMENT APRIL 27 , 1995 Paterson stated it was his understanding that the applicant was in the RMF Zone, but lost RMF abilities . Mathis stated that was correct . The only way to create any semblance of privacy was to try to do a 6 ft . high fence . The design was driven from approvals from HPC - that is what Mathis believes to be the true hardship. Amy Amidon of Planning mentioned that there was a trade; we let you tear down this historic building which has dubious significance at this point , but in return, we will review the re-development plan. The applicant is bound by that re-development . Lavagnino stated that the applicant did know of the requirement and that it would come under review. Mathis stated they did. Amidon stated for future reference that she felt that it was a pretty odd situation and she did not think HPC would do things like this in the future . Lavignino closed the public portion of the meeting. Head stated in looking at the totalitiy of the project he felt there was an oversite during the process . He stated he was in favor of granting a variance . DeLuca stated as much as he hated to see a wall in the community, he sympathized with the applicant . He felt the applicant was in an unfortunate situation and was compelled to build the house in a certain footprint, and he can' t turn the house around. He said he noticed the street is considerable distance away from the wall and it showed some trees and there is still some open space there . He does not feel the impact will be as much as one might think. He stated he would probably grant a variance in this situation. Iglehart asked if vegetation constituted a fence? Drueding answered, yes . Amidon mentioned that in HPC conditions, the fence is supposed to have vegetation in front of it . Iglehart stated he was in favor of the variance . Paterson stated he was in favor of the variance . Erickson stated he was in favor of the variance . Lavagnino said he like the aspect of putting in a single-family dwelling instead of the RMF and sort of down-zoning the developmental rights, and one thing the applicants did not really harp on, which they could have, is they are not enjoying a property right that others are enjoying on adjacent properties . He said he was in favor of granting this variance . 7 BOARD OF ADJUSTMENT APRIL 27, 1995 MOTION Erickson moved that Case #95-3 be granted an open space variance, DeLuca seconded, vote commenced and was unanimous in favor, motion carried. MINUTES APRIL 13 , 1995 MOTION Lavagnino moved that approval of minutes be deferred until the next meeting as the Board had just received them. Paterson seconded, all voted in favor, motion carried. ELECTION OF OFFICERS MOTION Lavagnino moved for nominees for Chairman. Paterson nominated Remo Lavagnino for Chairman. Iglehart seconded, vote was unanimous in favor, motion carried. Lavagnino moved for nominees for Vice-Chairman. Charlie Paterson was nominated and motion was called for nominations to be closed. Erickson seconded. Voting commenced, all were in unanimous favor, motion carried. Chairman Lavagnino adjourned the meeting at 6 : 15 p.m. Respectfully submitted, Sharon M. Carrillo, Deputy City Clerk - - - - - - - - - - - - - - - - 8