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HomeMy WebLinkAboutminutes.boa.20030605CITY OF ASPEN BOARD OF ADJUSTMENT - Minutes - June 05~ 2003 Rick Head opened the regular meeting of the Board Of Adjustment at 4:00 p.m. in City Council Chambers. Members Greg Hughes, Bill Murphy, Howard DeLuca, Mark Hesselschwerdt, Charles Paterson and Rick Head were present. Staff in attendance: David Hoefer, Assistant City Attorney; Sarah Oates; City of Aspen Zoning Officer; Richard Goulding and Nick Adeh, City Engineering. MINUTES MOTION: Howard DeLuca moved to at,prove the minutes of Sel)tember 5, 2002 and October 10. 2002. Seconded by Bill Murlghy. APPROVED 5-0 DECLARATION OF CONFLICTS OF INTEREST None stated. Since there was a full board tonight and only five members were required for the purpose of a vote, Greg Hughes would step down. PUBLIC HEARING: Case #03-01 - 237 & 239 Gilbert Street- Robert Scherer Rick Head opened the public hearing for Robert Scherer, 237 & 239 Gilbert Street. The affidavit of notice was provided. Robert Scherer introduced himself as the applicant; he applied for a 10-foot setback variance required to put in a permanent version of the existing awnings over the front doors of the duplex, which he owns both sides. Scherer provided photos of the proposal with the divider; the water and melting snow drained into the low-grade entry area two steps below grade, which collects water. The water has penetrated the house since he has owned it (2/2000) and both sides leak onto the circuit breaker panels, which could be a hazardous situation. Scherer said that there were also mold and mildew issues over the past two years; he wanted to replace the awnings with a more permanent roof that will shed the water to the side to keep the water from the below grade entry areas. Scherer said that it was basically a gabled permanent awning over the sunken area to keep the water out. Chris Janusz, general contractor, provided photos of the water damage and stated that there was a legitimate health/safety reason for this proposal. Janusz said that the project started with removing the planter thinking that was what was causing the major leakage; they received a repair permit but that did not relieve the leakage situation. Janusz stated that they were not encroaching any further from where the existing structure already sits, the actual structure was on the zero property lot line. The face of that wall was in the 10-foot setback. Sarah Oates explained the request was for a 10-foot front yard setback variance for the roof structure because of the leaking; the original building permit plans were submitted in 1989 and the certificate of occupancy was not issued until 1995, 1 CITY OF ASPEN BOARD OF ADJUSTMENT- Minutes- June 05, 2003 which in theory the structure should have been built to conformity. The board commemed that this building was a "Hans Cantrup special". Staff felt that standards 2 and 3 were not met and that staff could not find a hardship. The retaining walls came out ro the property line. Howard DeLuca asked if the awnings were part of the original design or were they added afterwards. Scherer replied that he did not know because he purchased the house in February of 2000 with the awnings in place. Oates replied that there was no evidence of the awnings in the building plans file. DeLuca asked if there would be a grate for water collection and diversion. Scherer explained that the driveways have never leaked and had a grate system laterally across, which carries the water to a downspout with ejector pumps downstairs. Janusz stated that there was a 2- inch drain at the bottom of the existing door basin, which will be doubled. There were no public comments. Mark Hesselschwerdt said that he did not have problem with the solution to making this thing work better with a semi-shed gab/ed end roof over the 2 entrances, which would be something permanent to catch the snow and direct it away from the building. Greg Hughes said that covering the whole area wasn't exactly what he would have chosen as a solution. Rick Head noted thaf the request was right on the zero lot line on the outside of the north side of the building. DeLuca said that there was no alternative way to stop the water from getting down there but there probably was no other option but to increase the non-conformity with the roof coverings. Bill Murphy said that the buttresses stick out and there did not appear to be another option; he had no problem with it. Charles Paterson said there was an obvious problem and felt that the solution was very good. MOTION: Charles Paterson moved to approve the variance for a ten (JO)foot front yard setback variance for the construction ora roof over an existing enrryway at 327 and 329 Gilbert Street, Case #03-01, finding that the criteria have been met. Mark Hesselschwerdt seconded. Roil call vote: DeLuca, yes; Murphy, yes: Itesselschwerdt. yes: Paterson. yes: Head. ~o. APPROVED 4-1. PUBLIC HEARING: Case # 03-02 - 707 West North - Jeff & Molly Gorsuch Rick Head opened the public hearing for 707 West North, Jeff Gorsuch, for an appeal of determination by the City Engineer. Representing Mr. Gorsuch was Joe Krabacher and Mitch Haas. Rick Head asked if notice was needed. David H0efer stated that this was publicly noticed but they did not need to post anything. Hoefer stated that this was a bit of an unusual procedure, which we did not see very often. 2 CITY OF ASPEN BOARD OF ADJUSTMENT - Minutes - June 05, 2003 The burden of proof is on the applicant to basically prove to the board that they comply; they get to go first in terms of presentation and then staff will do a presentation. Mitch Haas, representative for the applicant, explained Jeff and Molly Gorsuch were out of town but wanted to go forward. Haas said the background on the property was a misunderstanding or communication breakdown; the Gorsuch's applied for an encroachment license to replace an existing fence at the t/me that they were building this house in 2001. In the original application for an encroachment license they asked for landscaping and a fence in the right-of-way. The city was not in favor of the landscaping with boulders but the Gorsuchs met on site with Aaron Reed, City Forester, from the Parks Department who told them that his opinion was they should use the existing fence postholes and place the fence there. Haas said based on that, right or wrong they assumed that it was okay to place the fence and they built it back in the same fence post holes from the fence that was removed. Haas said they thought that they were fine until they got a zoning compliance letter saying that they were out of compliance and their encroachment license had been denied; they had never been issued a written or verbal denial. Haas said that this was clearly a misunderstanding; the Grouchs are upstanding citizens; they went through a long process and followed all the rules up and to that point with building perm/ts for the house and Planning and Zoning for a height and design variance, which was granted. Haas stated this was an honest mistake based on a misunderstanding, no blame, but that shouldn't have any bearing on whether or not this encroachment license should be issued or with a sunset date on the encroachment license. Haas said the standards were different than this board usually deals with; it wasn't a straight hardship case. Joe Krabacher clarified that the Gorsuchs met with R/chard from Engineering and discussed the location that was filed for the fence; the city's position was that they were told that they couldn't put the fence or landscaping there; what he heard was the landscaping was not approved but he didn't know that the fence was not approved and there was noting in writing until the enforcement notice from Sarah in October, after they built the fence in summer of 2002. Krabacher stated that au this point they were trying to get an approval for this revocable encroachment license, which by its nature can be revoked at any time. Haas said they were asking for a normal encroachment license. The standards for this type of review were (1) whether the requested encroachment is the minimum encroachment necessary to make possible the reasonable use of the parcel, building or structure in question. Haas said that the reasonable use of land was the ability to fence it in, it was a common use and certainly reasonable all over America that people were allowed to fence in their yards. Haas utilized a map 3 CITY OF ASPEN BOARD OF ADJUSTMENT- Minutes- June 05~ 2003 showing the property and the replaced fence following about half of the original encroachment with trees in the right-of-way and on the property line, Haas said that they were told the only way that they could fence the trees was outside of the drip line, which was some 10-12 feet in the property making this portion of the property virtually unusable or following underneath the dr/p lines along the property line in a manner wher¢ new fence posts would have to be hand dug so that new fence postholes avoided all tree roots and pruning the trees up high enough so that the fence could pass below. Haas said the fence line would probably meander around because the other way would require an encroachment license. Haas said that it was unreasonable to say that they were denied use of all 9000 square feet of their lot because of the city trees encroaching onto their property and the city didn't need an encroachment license from the Gorsuchs or an easement from the Gorsuchs to maintain their trees so it would be u~easonable to say that now because we don't need from you we're going to deny you use of this portion of your property. It seems in fairness would be to allow the same fence line that's been here forever and allow you to fence in these trees and it doesn't deny the public any enjoyment of these 40-50 foot tall trees. Mitch Haas said that next standard for this review was whether denial of this encroachment would cause the applicant unnecessary hardship or practical difficulty. Haas explained without the encroachment it becomes difficult to replace this fence and the trees could not be removed. Joe Krabacher explained the P&Z process that the Gorsuchs went through for design guidelines. Haas further explained that the trees were to be saved, this was an issue of fairness to the Gorsuch family because they encroached on their property and because the city will not issue a tree removal permit; he said it seems fair that the fence line could be put out there rather than forfeiting the right to all of this property because the city found the trees to close to the property line way back when. Mitch Haas said that the final standard for this review was whether there are special circumstances or conditions which are unique to the parce[, building, or structure in question which are not applicable to other parcels, buildings, or structures. Haas said that again it was the same issue they were once considered a unique situation and granted a variance and nothing has changed. Haas said that a referral from the Parks Department that said ',after review by the city fosterer it determined that the proposed location of the fence is more appropriate than putting it on the property line, we would like to allow for placement of the fence in the public right-of-way". Mitch Haas said if they were forced to put the fence on the property line the fence would end up damaging the trees. Joe Krabacher said that there was a misunderstanding, as he understood, the Gorsuchs met with Aaron who said it was a good idea to use the existing postholes, which was not the proper Conclusion but it was the one he did~ David Hoef~r noted with the provision that 4 CITY OF ASPEN BOARD OF ADJUSTMENT- Minutes- June 05~ 2003 Aaron did not have authority. Joe Krabacher responded that Aaron was not the city engineer. Mitch Haas stated that it's been brought up that there are options such as placing the fence inside the property line, which again would be some 6-12 feet inside the property line and would deny them use of this whole section of the property or that they can hand dig shallow fencing, which again avoiding the root system, not following the property line and possibly damaging the trees anyway. Haas said those options have been considered not viable because they are a practical difficulty when there are existing fence postholes that have been there for at least forty years that can be reused and allow a reasonable usd of the property and would not interfere with the public's use of the right-of-way; the street was 20 or so feet from the property line between the street there was a gravel area for some parking and landscaping and a ditch before the fence. Haas said that the city could always revoke the encroachment license without cause, so this wasn't a precedent issue but staff felt that it could be a concern and he understood why they thought that but there was no standard in reviewing it. The standard was what was in the best interest of the city. Haas said that all 3 standards were met with no harm in granting the encroachment because it could always be revoked. Rick Head asked if this was a historic building. Sarah Oates responded the existing building at the time was demolished and not on the historic list. Charles Paterson said it was the old Fred Iselin building. Sarah Oates introduced Richard Goulding from the City Engineering Department. Richard Goulding stated that they were not questioning the integrity of the Gorsuchs on this; it was probably the lack of knowledge on the permitting process that lead to this, if this had gone the right way they would have an encroachment license, a fence permit, variance from the Design Review Committee because of the height of the fence and a right-of-way permit to dig in the right-of-way were required. Goulding noted multiple departments s~gn off on these permits; they have none of these permits. Goulding stated the Gorsuchs were never told by the Engineering Department that they could have a fence; it looks like a breakdown in communication. Goulding said that as Mitch pointed out what led us here really isn't the issue. Goulding said the issue was if these standards were being met. Goulding said that reasonable use of the parcel was with the building of a 3,600 square foot house; the unnecessary hardship could be accomplished by hand digging the fence posts. Goulding used a site map to point out where new fence posts were installed last summer in one area around the trees, which shows that what the city was asking for can be accomplished. Goulding provided pictures showing the fence posts in and around the trees. Goulding said that he spoke Io Aaron Reed about putting the fence on the or near the property line with smaller 5 CITY OF ASPEN BOARD OF ADJUSTMENT- Minutes- June 05, 2003 hand dug fence posts. Goulding said that he didn't think that the Gorsuchs had an unnecessary hardship but there were options that were being rejected by the applicant. Goulding said that the 3rd standard was whether this was a unique parcel; he said that this property was not unique other than the trees may be old but there were other properties in town with the same situation. Goulding said the criteria for granting an encroachment license was the benefit to the city; he did not think that sections of city property fenced off for private use was a benefit to the city. Goulding said that when a new building was built the property needs to come up to code and the historic condition was not valid any longer. Goulding said fencing off public land does not appear to be a public amenity. Goulding stated the 3rd standard was that of a construction encroachment, which was issued to the Gorsuchs because it was November or December when the matter came up and was issued to resolve this matter by spring.~ Goulding stated that he did not feel that the Gorsuchs have met the standards that were being' reviewed. Rick Head asked about the height of the fence. Sarah Oates replied per the Residential Design Standards anything forward of the front most fagade of the house cannot be more than 42 inches in height; this fence was about 5 feet. Haas stated that it was 48 inches, so it was 6 inches over the limit on the alley coruer not the street coruer. Oates answered that it was the other side and it wouldn't comply with the Residential Design Standards. Rick Head asked the reasoning behind this code standard. Oates responded that the Residential Design Standards were to create a relationship with the pedestrian. Howard DeLuca said that it was stated that the trees were planted by the city; he asked if this statement was based on fact. Haas replied that they were in the city right-of-way. DeLuca stated that he owned a property like this with the same tree structure and he ran his fence on the inside of the trees when he got his fence permit. DeLuca said it didn't kill any trees and there were a lot of roots. Haas replied that it can be done but that wasn't the standard and this would be an unnecessary hardship or a practical difficulty. Haas said they know that the existing fence post holes are known not to damage the trees and can be reused; it was unnecessary to dig new fence post holes and it was a practical difficulty to go through there and hand dig new ones when there were ones that can be used. DeLuca said that he had a similar situation where there was an existing fence line and the surveyors found the property line had moved and he had to re-dig every posthole a foot away. Charles Paterson said that the secondary fence was near trees that were a lot smaller in size and the fence wasn't as close to the trees as shown on the drawing. 6 CITY OF ASPEN BOARD OF ADJUSTMENT- Minutes- June 05, 2003 Rick Head said that his fence couldn't hold anybody in; he asked if it completely encapsulated the backyard so that kids and dogs could not get in and out. Haas said there were gates and the fence was attached to the house. Howard DeLuca asked the original intent of the right-of-way and what was it used for now. Nick Adeh responded that public rights-of-ways were used by multiple entities like pedestrian, transportation and 8 utilities, which were the main lines for providing services to the community with certain horizontal separations from each other. Nick Adeh stated that when trees, boulders or fences were placed in the rights-of-ways, ~t makes it impossible for the utility compames to maintain the utilities or access in emergency situations; he stated that was the purpose for the use of the public rights-of-ways. Nick Adeh explained the different types of utilities that could be contained in the rights-of-ways. Howard DeLuca spoke about the history of the utilities rights-of-ways being changed over the years. Greg Hughes asked how much of the city property was being fenced. Joe Krabacher replied it was 40 feet by 8 feet. Hughes asked if the trees were located on city property. Krabacher replied it depended on what part of the tree you were talking about; the root system goes on the subject property and in the public right- of-way and some of the trunks are on the property line or a foot from the property line; the branches were on the property. Krabacher noted that the code section read the Board of Adjustment shall utilize the following standards but it doesn't say these standards must be met and it doesn't say A, B and C. Mitch Haas stated that once their kids were grown up, they would happily take the fence out. Nick Adeh stated a public right-of-way was granted not for a public playground for the kids, itwas primarily for utilities, transportation, transit and pedestrian corridors. Adeh said that there were alternatives to fences to protect the trees. hedges could be planted between the trees, evergreens other plantings dense enough on the property line to keep kids safe. Adeh said that open space was one of the greatest things to promote here and there were other ways to keep the open space and create those physical bamers enhancing the property rather than putting solid fence wails in. Adeh stated that there were functional uses of the rights-of- ways and the needs of the growing community should be considered. Sarah Oates stated that there was a different set of standards for the Residential Design Standards; there was a difference between excavation for a building foundation and hand digging fence posts in terms of whether there were unique circumstances to the property and the impact that each would have on the trees. Rick Head inquired about what the city forester, Aaron Reed, thinking that the solution of replacing the existing postholes was reasonable. Oates replied that he 7 CITY OF ASPEN BOARD OF ADJUSTMENT- Minutes- June 05, 2003 was a referral department for the encroachment license and does not issue the encroachment license. Goulding said. he had the same conversation and he said that with regards to the trees it would be most beneficial to the trees to use the existing postholes, but he was one of many referrals. Haas said that in this case this was the most reasonable way and logical place to put the fence in the existing postholes in the right-of-way and they don't condone everyone be granted an encroachment license. Haas cited many non-historic encroachment licenses. David Hoefer stated that the criteria was in the appeals section for this board to make a decision in the following manner: The decision of Engineering shall not be reversed or modified unless (a) there was a denial of due process (b) the administrative body exceeded it's jurisdiction or (c) it abused its discretion. Hoefer said that Joe Krabacher and he agree the issue the board was looking at was did engineering abuse its discretion in not granting the encroachment. Head stated that was what the board had to come up with. Haas and Krabacher disagreed. Hoefer provided the criteria for the appeal. Mark Hesselschwerdt stated that he has done many fences over the years and the idea of using old fence postholes was not appropriate at all because an old rotten 4" by 4" that used to hold up wire was now plugged in with new 8" by 8"'s that were probably set in concrete; there was no way that new fence posts were going into those old fence postholes, so that criteria is inappropriate. Hesselschwerdt noted that more money was spent on counsel and representation than moving the fence. Hesselschwerdt said that if they couldn't put the fence on their property line then they could put it someplace else on their own property. Hesselschwerdt said that the representative's argument that the applicant didn't have full use of their yard because they don't get to fence the whole thing was full of holes. Hesselschwerdt said it bolstered the fact that the Gorsuchs wanted 8 feet of city property rather than give up 3 or 4 feet of their prpoerty to satisfy a straight fence. Howard DeLuca said that the number one thing was that they applied for their encroachment permit and didn't get it and put the fence m anyway; whether there was misinformation or not someone along the way must have realized that if you don't have a piece of paper giving you the right to do it you shouldn't do it. DeLuca said that the trees were planted probably by the original owners and under the guidelines you inherit whatever was on the property; you cannot create your own difficulty or hardship. DeLuca said the city was not creating a hardship by telling them to put the fence on their property. DeLuca said that he had 40 and 50 foot trees on his property and he hand dug postholes for his fence. DeLuca said that in this case ~t looked like the applicant had a choice between sacrificing 4 feet of their property or gain 8 feet of city property and they made the choice to take the 8 feet of'city property without permission. 8 CITY OF ASPEN BOARD OF ADJUSTMENT- Minutes- June 05~ 2003 Rick Head reminded the board that their job was to determine if the city engineering department abused their office in anyway in making this determination. David Hoefer noted the applicant's representatives were not agreeing with that approach so the comments could be based on the criteria in the staff report. Greg Hughes said that this was the use of city property for their convenience rather than loosing a few feet to dig near the trees. Bill Murphy said that his understanding was that engineering gave them a temporary permit so they didn't have the hardship of tearing this fence down in the winter. Murphy said that they could put up another fence and use their yard just flne without a problem. Charlie Paterson stated concern with the city forester's recommendation in as much as the trees could be damaged with new postholes; he said that there was a section that said, "when do I need a permit fi'om city engineerzng department" it says "if you plan a construction activity in the city public right-of-way easement or even work adjacent to these areas that might impact or restrict the public use of it. whether occasionally or regularly". Paterson said that if the fence remained in place would in any way restrict the public use of that area; it doesn't affect the parking; there was ditch on the other side of the fence and a grass strip. Paterson said that he had a problem because the code does not prohibit fences or landscaping in the right-of-way it merely requires permission and approval from the city engineer; he said there was a case of obvious miscommunication from the start and the Gorsuchs had a practical difficulty in digging new fence postholes in the area between the trees or on the inside of the property. Paterson said that across the alley from this property there was a hedge that was even further out than the fence and a patio with a dining table in the city right-of-way, which those people were using. Paterson said that he would be inclined to grant this because the city could revoke it at any time. Hesselschwerdt noted that this fence was put in last sumh~er without any permits or approvals; he said it was one of those deal that it was eas~er to ask for forgiveness than permission. Hesselschwerdt said that they have come before the board because the city said please this was not the appropriate spot for you fence; you are 8 feet out from your property and they wanted to run it past another board. DeLuca stated that when he put his fence in it was the same exact situation; he said that he could have gone around without anyone knowing it was off the property but he went for a perm/t, which required a surveyor. DeLuca said that he was 4 feet 9 CITY OF ASPEN BOARD OF ADJUSTMENT- Minutes- June 05, 2003 inside the property line. DeLuca said that you can't build fences without permits and not follow the rules. Paterson said that he didn't feel that they (the applicant) felt they could get away with it and the city can revoke it at any time. Rick Head stated that he leaned towards the arguments presented by Mark and Howard because they built the fence wi~;hout a permit. Head noted this was the only fence that encroached on the right-of-way; he said that he was agreeing with city engineer's interpretation. Joe Krabacher said that it was unfair to make conclusions without the facts before you; they applied for the permit, they were never denied. Rick Head responded they never got the permit. Sarah Oates clarified that they did not apply for a fence permit; they applied for an encroachment license. Krabacher said that the Gorsuchs went through the whole process; got a building permit for the house, they moved the house over in order to save those trees and that was considered }0 be a unique situation but not unique enough to qualify here, there was a slight difference in terms of the standards but the city already has made a finding of fact with respect to this specific property that that's a unique feature. Krabacker said that he objected to impugning the character of these people as if they tried to pull a fast one. Head replied that was not the case. Krabacher provided pictures of 1 $-20 houses in the west end with fences in violation. MOTION: Mark I~esselschwerdt moved to approve the request to overturn a decision by the City Engineering Department and grant an encroachment license for a fence located at 707 ~/est North with the following conditions: (1) the fence must be brought into conformance with the Residential Design Standards or a variance must be sought at the Design Review Appeals Committee (2) A fence permit must be submitted based on Condition ] above. Seconded by Bill Murphy. Vote: Paterson, yes; DeLuca, no; Murphy, no, no; Head, no. DENIED 4-~. Meetirig adjourned at 5:40 p.m. ~Ta~ckie Lothian, Deputy City Clerk l0