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HomeMy WebLinkAboutminutes.apz.20150113Special Meeting Planning & Zoning Commission January 13, 2014 Mr. Stan Gibbs, Vice-Chair, called the Special Planning & Zoning Commission (P&Z) meeting to order at 4:30 PM with members Keith Goode, Jason Elliot, and Ryan Walterscheid. Also present from City staff; Debbie Quinn, Jennifer Phelan and Chris Bendon. COMMISSIONER COMMENTS There were no comments. STAFF COMMENTS: Ms. Phelan thanked the commissioners for making time for the special meeting tonight. PUBLIC COMMENTS: There were no comments. MINUTES: There were no comments. DECLARATION OF CONFLICT OF INTEREST There were no declarations. Public Hearing – 212 Lake Avenue, Replacement of nonconforming structure, – Continued from January 6, 2015 Mr. Gibbs opened the continued public hearing for 212 Lake Avenue. Ms. Quinn stated the affidavit of public notice had not been previously reviewed. She has reviewed and determined notice was properly provided for the January 6th meeting. Ms. Phelan stated the notice was included as Exhibit C. Ms. Phelan, Deputy Planning Director, reviewed the application for 212 Lake Avenue request for special review approval. Ms. Phelan stated 212 Lake Avenue is considered a nonconforming structure. The house does not meet the underlying zone district requirements. Demolition has been triggered and under the land use code it requires the building to now conform to the dimensional requirements of the zone district. The special review has specific criteria P&Z must determine the application meets. Ms. Phelan then provided background on the project. This property is an 11,000 sf lot and is about 59 ft wide at its narrowest spot and overlooks the Aspen Center for Environment Studies (ACES). It is in the Hallam Lake Bluff review and is designated as a historic landmark. The property is located in the medium Density Residential (R-6) zone district. 1 Special Meeting Planning & Zoning Commission January 13, 2014 The property is nonconforming with regards to parking (short 2 spaces), side and combined setbacks, floor area (about 1,500 sf over), site coverage (small percent) and the Hallam Lake Bluff setback and height requirements (part of the building). The property is an existing duplex and the current owner was granted approval from the Historic Preservation Commission (HPC) to remodel the house in April, 2014. The granted approvals allowed the applicant to maintain the construction in the setback, provided a parking variance and approved some roof and form changes to simplify the building to be more sensitive to both Hallam Lake and the historic resource (miner’s cottage). The building permit included demo calculations to verify demo is not triggered. A demolition shows what parts of the wall structure will be removed and the assemblies that hold the building together. The City’s code requires if more than 40% or more of an existing structure is removed, then that triggers a demo and requires compliance with the code. The changes to the building came in at 39% and a permit was issued in October, 2014 for the remodel. Prior to issuance of the building permit in October, the contractor received a permit called an interior finish and fixture removal permit which allows for removing drywall and fixtures to perform an initial investigation prior to demolition and reconstruction. During the investigation, mold was discovered and the contractor hired a consultant in July, 2014 to assess the status of mold in the building. The consultant issued a report making recommendations on actions to be taken to remediate the mold. In November, during demo and reconstruction, the City requested an inspection to verify the demolition plan happened as submitted as part of the building permit. During this inspection of the demolition, it became apparent the demolition calculation had been exceeded. The contractor explained mold had been discovered and additional demolition had occurred. The demolition was estimated at 55%. With regards to special review, all review criteria are supposed to be met. The review criteria focus on whether the development is compatible; land uses and the purpose of the zone district and whether there is any impact on the surrounding land uses; where special characteristics unique to the property which differentiate from other properties; whether the structure represents the minimal variance allowing for reasonable use of the property; and whether enforcement of the dimensional requirements of the zoned district will create hardship by prohibiting reasonable use. Based on these criteria, Staff does not find all standards have been met and recommends denial of the request. Specifically Staff does not find there are special characteristics of the property with the large size of the lot and lot width. The code will allow up to a 4,100 sf building in floor area. Mr. Chris Bendon, Community Development Director, stated there are two pathways forward for the applicant. One is to argue the definition of demolition to determine if mold is a qualifying aspect of demolition. The interpretation of mold and the appeal would go to City Council. The second pathway is to say there has been demolition and the special review request to be able to replace nonconformities subsequent to demolition. The code allows you to do this after demolition but requires the question to be asked before proceeding with demolition. There is nothing wrong with exceeding demolition and coming in with the request. He stated the applicant is going with the second pathway, but could pursue both. 2 Special Meeting Planning & Zoning Commission January 13, 2014 Mr. Gibbs asked if there were any questions for Staff. Mr. Goode asked if there has ever been demolition by mold before this instance. Mr. Bendon stated mold has come up before and the applicant has informed the City of the mold. The code limits the demolition at 40% for whatever purpose. Many times the 40% isn’t a factor for a project because they do not have nonconforming issues. Mold can be found in almost every structure and there are many ways to deal with the mold. He does not recall mold coming up in this exact circumstance. Ms. Quinn stated there is a definition from the land use code of demolition as defined on p 2 of the agenda packet. Mr. Walterscheid asked to confirm if the project went before HPC in the previous year. Ms. Phelan stated in went in front of HPC in April 2014 for review of the proposed remodel. Mr. Walterscheid asked if the proposed construction changed from what HPC approved even though demolition has occurred. Ms. Phelan stated the final product will be the same product approved by HPC. The issue is the demolition exceeded what was allowable 40% which triggers a special review. Mr. Gibbs asked given the current location of the historic resource, is the allowable floor area to be developed as stated on p 5 of the packet what HPC approved or the numbers based on land use code. Ms. Phelan stated the amount specified in the packet is what is allowable based on size of the lot and the land use code. Ms. Phelan stated the build exceeds the allowable amount. Mr. Bendon stated Staff feels it is reasonable to stay within the amount. Ms. Phelan stated the façade of the historic resource is 30 ft from the property line. A typical setback is 10 ft. Mr. Bendon stated the approximate size of the resource itself. Ms. Phelan stated this is a deeper lot than typically found in the west end. Mr. Gibbs asked why this would not just go back to HPC. Ms. Phelan stated the land use code does not give HPC the authority to review this particular special review. Mr. Walterscheid asked what happens to the resource if for some reason P&Z votes to deny the nonconformities. Ms. Phelan stated the P&Z decision could be appealed to City Council. The applicant could go down the path of asking for an interpretation of demolition. She also added if this was denied by P&Z and no further action was taken, then the applicant would be expected to come up with a plan based on the underlying zoning which would be reviewed by HPC. Mr. Gibbs then asked if P&Z should not consider the first approval because of the special review. Mr. Bendon stated the special review under consideration assumes demolition has occurred and the request is to replace the nonconformities subsequent to the demolition. Mr. Gibbs then turned the floor over to the applicant with Mr. David Kelly representing Harriman Construction and the owner. Also in attendance is Mr. Mitch Haas to provide background of the HPC approvals, Mr. Ben Genshaft serving as the owner’s counsel, and Bill Harriman and Kimberly of Harriman Construction. Mr. Haas provided a background of the project. He wanted to assure P&Z the applicant did not intentionally do an end run around the code to ask for forgiveness. This applicant hired Mr. Haas and 3 Special Meeting Planning & Zoning Commission January 13, 2014 Mr. Genshaft to complete due diligence for the purchase of the property. During this effort, it was discovered the building was nonconforming with regard to floor area, setbacks and site coverage. He does not consider the Hallam Lake Bluff items nonconforming because they are not zoning requirements. In the course of due diligence, there was an old City Council document specifying allowable floor area for the property no matter the use. An exhaustive study of the code was completed of the land use code as it pertains to the property. The applicant then purchased the property. Then an HPC application was prepared for a Hallam Lake Bluff review and renovation and restoration of the building. The architects prepared an exhaustive set of plans including full demolition drawings, calculations, residential design standards, Hallam Lake Bluff standards, nonconformities. Mr. Haas continued stating before applying for the HPC approval process, they reviewed several designs with Amy Simon, HPC Senior Planner, and revisions were made. At this time the demolition plans came out at about 30% limit of the demolition calculations. They were asked to take on far more restoration of the historic resource than what would ever be required or necessary. They were afraid to do this because it would bump up the demolition and they were concerned with exceeding the 40% threshold. Mr. Haas stated they were asked to remove non-historic additions to the building and in effect losing sf. The resulting plans decreased the FAR nonconformity. In the process, they were asked to consider taking the entire roof line of the historic resource that had been previously changed and lower it to the original roof line. The applicant agreed to do this and other non-required activities even though it bumped up the demolition calculation. Mr. Haas stated during the pre-application process Ms. Simon stated there is very little historic fabric remaining on the property and not to expect any favors from the HPC. The applicant liked the idea of restoring the property to its original form and was willing to do it. The applicant pointed out the non-native vegetation on the property and had Mr. Haas confirm with the City Forrester to inquire how to remove the vegetation when it is not allowed under the Hallam Lake review. Mr. Haas also met with ACES representatives including Chris Lane and Jim Kravitz who made suggestions. They asked the applicant to modify the construction schedule to minimize the impact to ACES programs during their high season. Mr. Haas feels the applicant has been upfront and gone above and beyond what is required to do the right thing. Mr. Kelly stated the nonconformities existed prior to the HPC approval. The applicant lessened the nonconformities by reducing the building height including 13% demolition on Lake Ave side and 7% on the Hallam St side for a total 20% of the demolition. He stated half of the demolition (20%) was due to the applicant agreed to complete per the request of HPC that were agreed to be beneficial. This change also reduced useable sf. Mr. Kelly stated Harriman Construction discovered pervasive mold during demolition. It was everywhere in the structure including the roof, walls, plaster. Mr. Kelly provided pictures of the mold. Mr. Kelly noted the pictures do not show the worst of it, they only show what is left after the other mold been removed. Ms. Quinn requested a hard copy of the pictures to be included as Exhibit D. Mr. Kelly stated the applicant wants the special review to include not only continue building with what has been approved, but also be allowed to remove the remaining mold. 4 Special Meeting Planning & Zoning Commission January 13, 2014 Mr. Kelly stated Harriman Construction engaged a mold expert who discovered several species growing including toxic molds. Harriman Construction then followed the recommendations and the Occupational Safety and Health Administration (OSHA) guidelines. The independent testing agency recommended physically removing mold from the structure including as the primary remediation. Attempts to kill or encapsulate mold generally are not adequate. OSHA stated the purpose of mold remediation is to correct moisture problems to remove moldy and contaminated materials to prevent human exposure and further damage to building materials and furnishings. Porous materials that are wet and have mold growing on them may need to be discarded to eliminate areas for potential mold growth. As a general rule, simply killing the mold is not enough. Even dead mold may cause a reaction to humans. Mr. Kelly stated Harriman did remove the worst of the contamination, but there is still a lot remaining. The mold was generally located on dimensional lumber and not on the brick or historic façade of the residence. The City building department saw the mold when they were out on their Interior Finish and Fixture Removal (IFFR) inspection. There isn’t any provision in the code that provides for the remediation process regarding the acceptable standards because there really isn’t any federal or state standards regarding acceptable levels of mold. Harriman Construction viewed this as a health safety and welfare issue and not a zoning issue. Mr. Kelly stated the Community Development Department has taken a position that any removal of the moldy material constitutes demolition. Mr. Kelly feels there are numerous reasons why this does not fall under the definition of demolition in the code. They are not raising, disassembling, tearing down or destroying the building. He fells it is a non-willful destruction because it was destroyed by an act of nature and should be allowed to restored. He thinks it should also be declared an unsafe structure which would also allow for restoration under the code. Or it could be considered normal maintenance under the code. If they can obtain special review now, then they can cover the building and make sure it isn’t destroyed. If Harriman Construction knew this was a zoning issue and swapped out the lumber, they would still be at this special review because Staff considers the replacement of the moldy materials to be demolition. The unfortunate thing is if the building is considered demolished, the City may lose the historic resource. Mr. Kelly noted the first review criteria asks if it is compatible with surrounding uses and HPC found the project to be compatible. He also noted the development does not adverse impacts on surrounding uses. The only special characteristics unique to the property he noted was the mold issue. Mr. Kelly stated they are not asking for any dimensional variations other than what was historic and what was already approved. In regards to the standard regarding the enforcement of the dimensional provisions of the zoned district causing unnecessary hardship, Mr. Kelly stated perhaps there would be no hardship if the mold had been known when the project was going in for development approvals. The project would suffer hardship of having to go back to scratch at this point adding considerable time to the project and losing 1,500 sf which is equivalent to a two to three million dollar loss of value in the property. He feels the overriding concern is the public health safety and welfare. Future projects encountering mold would be left to live with it or lose the historic resource as part of the property. If the City does grant the special review, then the construction can continue, the mold can be removed and the City gets to keep the historic building in the same footprint, just lowered to accommodate the neighbors. 5 Special Meeting Planning & Zoning Commission January 13, 2014 Mr. Ben Genshaft represents the property owner and wanted to point out this special review is a one off case and will not be setting a precedent. They are hoping P&Z will recognize the unique situation and allow them to complete the fully permitted project. Mr. Kelly then provided P&Z with a draft resolution granting the special review. Ms. Quinn noted it would be identified as Exhibit E. Mr. Gibbs asked the commission for questions of the applicant. There were none and he closed that portion of the hearing. Mr. Gibbs then opened for public comment. There were none and he closed that portion of the hearing. Mr. Gibbs then asked for rebuttal or clarification from Staff and the applicant. Mr. Bendon wanted to clarify Staff’s understanding was the mold studies were completed prior to initiating the demolition. The importance of issuing building permits is for clarity and eliminating surprises. His problem is that there was no discussion with Staff when mold was discovered. It was by chance City Staff discovered the extent of situation. He suggested just because the Building Department saw the mold does not provide direction to initiate the demolition and remediation. Mr. Genshaft responded there was never any intention to hide or deceive anyone. They have a very reputable builder and he did not consider what he was doing any kind of violation. He thought he was acting in accordance with the code in regards to health, safety and welfare. Mr. Kelly stated unless zoning wanted to take a different position on mold in that its removal doesn’t constitute demolition, then they will cross the 40% threshold. Mr. Haas stated if they had known then what they know now, he would have advised the applicant to not restore the historic roofline, not restore the historic window openings, and do not remove the solarium because they all contributed to the percentage of demolition. Mr. Gibbs closed the rebuttal part of the hearing. Mr. Gibbs opened for discussion from the commission. Mr. Goode thought the applicant did not have the intent to hide the mold problem but they knew the mold survey would say there would be mold. Mr. Walterscheid asked Staff to clarify what contributes to demolition. Mr. Benson said there is a section stating the obligation of the applicant to fully understand the structure they are dealing with no matter the intent. A wall could fall down and it would then be included in the calculation of the demolition. Mr. Walterscheid asked if nature took a course such as fire, how Staff would evaluate the demolition. Mr. Benson stated there is a section discussing willful and non-willful demolition. Non-willful demolition includes floods, fires and similar circumstances truly out of the ordinary and not from human interaction causing the demolition. Ms. Quinn mentioned the applicable code sections is on p 14. 6 Special Meeting Planning & Zoning Commission January 13, 2014 Mr. Elliott asked for the timing of the permits and the discovery of the mold to be clarified. Ms. Phelan stated in April, HPC approved the project for the remodel. In July there was a report by a consultant in regards to the mold in the building which occurred because the contractor had pulled a permit which allows for initial investigation behind the walls of the building. The actual permit for the remodel was issued in October. The contractor discovered the mold during the initial investigation. Mr. Elliott asked if the building would be the same as the renovations approved by the HPC. Ms. Phelan stated if the special review is approved tonight, it would be for what had been previously approved by HPC. Mr. Gibbs asked how it would be handled if they had been doing just an interior renovation instead of a major renovation and discovered the mold which resulted in as much demolition as the current situation. Ms. Phelan stated if this occurred and the applicant decided to remediate the mold requiring the removal of exterior sheeting, roof which would push them over the 40% allowance. A special review would be necessary to request to maintain the nonconformities were associated with the existing building. Mr. Gibbs then asked what criteria would be applied for that scenario that would be different from tonight. Ms. Phelan stated it would be the same criteria. Mr. Benson stated in other situations there may be additional analysis performed to identify the types of remediation and determine if it actually requires demolition. There could be additional conversations to look at if there were other portions of the building that had been originally intended to be demolished that could be left in place to stay under the 40%. Mr. Benson stated the code provides for replacement of nonconformities through a special review which is what is happening tonight. The applicant can request a special review based on mold or a number of desires or needs to replace nonconformities. Mr. Walterscheid feels the intent speaks a lot and if the applicant desires to complete what was approved by HPC, he does not have an issue with their special review. He also understands Staff in that there should have been a conversation earlier in the process. Because there are no changes being requested, he supports providing the exemption. Mr. Elliot feels we wouldn’t be here if staff had not driven by and noticed the demolition. The applicant should have come to the City and had a discussion regarding the discovery of the mold to ask for permission instead of forgiveness. He also understands the applicant wants to go the absolute safest route to mitigate the mold. He feels they should have come in to discuss the situation but because they are not changing anything from what HPC approved, he would reluctantly allow the exemption. Mr. Gibbs asked Ms. Quinn to confirm there would be no action if the board voted 2-2. Ms. Quinn confirmed there would be no action for a 2-2 vote but if it appeared the board would vote 2-2, then the applicant could ask to continue the hearing. The applicant does not have the option to appeal on the 2-2 vote. Mr. Gibbs feels this is an unfortunate situation and does not appreciate applicants asking for forgiveness and feels process should be followed. His sense is if this issue had been brought to them earlier when the mold was discovered, they would be in the same situation. He feels the applicant intends to build the project as approved and based on that he will likely vote yes. The fairness aspect plays an important 7 Special Meeting Planning & Zoning Commission January 13, 2014 part and the reality is P&Z probably would have approved this in July with no discussion had it been brought to the boards attention earlier by the applicant. But he also feels the code regarding demolition is perhaps too rigid in these situations and council should be aware. Both Mr. Benson and Ms. Phelan stated the applicant’s draft resolution could be reviewed and modified if P&Z wanted to use it. Mr. Benson and Ms. Phelan provided recommendations regarding additions, modifications and deletion of the sections. Mr. Goode motioned to approve special resolution #2, 2015 with the amendments as represented to maintain the nonconformities associated with 212 Lake Avenue, seconded by Mr. Walterscheid. Roll call to vote; Mr. Goode, yes; Mr. Walterscheid, yes; Mr. Elliot, yes; Mr. Gibbs, yes for a total of four (4) yes and zero (0) no. Other Business – Election of Chair and Vice-Chair for 2015 Mr. Goode nominated Mr. Walterscheid for Chair; seconded by Mr. Elliott. Mr. Gibbs nominated Mr. Goode for Chair; which was seconded. Mr. Elliot suggested Mr. Walterscheid and Mr. Goode decide who should be chair. Mr. Walterscheid agreed to serve as chair and Mr. Goode agreed to serve as Vice- Chair at which the P&Z members agreed all in favor. Mr. Gibbs closed the meeting. Cindy Klob City Clerk’s Office, Records Manager 8