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HomeMy WebLinkAboutminutes.boa.19960405BOARD OF ADJUSTMENT APRIL 5, 1996 Charlie Paterson called the meeting to order at 4:05p.m. present were members Howard DeLuca, Ron Erickson, Jim Iglehart, and David Schott. Rick Head was excused. Case #96-02 / 616 S. Galena Street Bill Drueding, Staff said the variance may be amended because the site visit revealed an area of below grade space that would not be counted in the FAR. Drueding stated that it would be more like 80 - 150 sq.ft. rather than 250 sq.ft. Paterson opened the public hearing, proof of notification provided. Patricia Kirianoff, applicant stated that she and her husband own the condominium at 616 S. Galena and there has been an ongoing problem with people coming on to their property, they assume from the Tippler, late at night. Kirianoff said that it is somewhat alarming when coming home at night finding people on her patio, at one point people where using the jacuzzi, the jacuzzi has since been emptied, the patio furniture was being used and that has been removed. She stated that she has left lights on, left lights off, installed motion lights and nothing seems to work. Kirianoff said that both heterosexual and homosexual people make out and fortunately her children have not been with her to see any of this, it has been both embarrassing and scary. She stated that some people have been very nice when she has asked them to leave, some haven’t, some leave immediately, and some move to a neighbors patio. Kirianoff said she contacted the police and they said they would try to keep an eye out, but the police said that there wasn’t much they could do about the problem, the Tippler can’t do anything about the situation, and Ms. Kirianoff said she firmly believes that someone is going to get hurt, either a resident or an intruder. Recently, in December, Ms. Kirianoff said she removed the beer bottles and glasses from her patio and no one had stayed there the night before so she knows it was intruders, and her neighbors house was broken into a week and a half later and recently someone had defecated on their jacuzzi. Kirianoff said that her insurance company informed them that they would be liable if someone was to get hurt on their property, the builder is not liable because it has been so long and probably had no idea this problem would exist, the Tippler is not liable unless they can prove the intruder came from the Tippler and that the Tippler served them too much to drink, she said that she feels as owners they have tried to do everything they could to eliminate this problem and the only thing left to do is come before the Board of Adjustments and ask for an FAR variance. Kirianoff proposes to put up windows that match the other side of the entry door because that would conform to the 1 BOARD OF ADJUSTMENT APRIL 5, 1996 building it would eliminate the problem and give them the peace of mind and safety they do not have right now. Paterson asked how long the Kirianoff’s have lived at 616 S. Galena. Kirianoff responded that they bought the condo on October 1, 1992. PUBLIC COMMENTS Mickey Herron, Attorney, represents the Monkarsh’s who live at 626 S. Galena, said that the applicant is absolutely correct and he thinks everyone in town is familiar with the problems that people are having with the Tippler. Herron stated that his clients support this application and by the same token will be making an identical application because they have suffered the same problems. Herron also stated that FAR in the City of Aspen was intended to limit the size of the buildings so that we don’t have obtrusive structures in town and the amount of FAR requested does not constitute alot of space or bulk. Herron said the condominium association, initially approached the City to obtain this space but where told they would have to negotiate a deal with Savannah to buy some of the FAR that has been allocated in the PUD’s. Herron stated that Savannah wasn’t sure what their plans were and said they were in no position to consider the request. Herron said this is a hardship that is dangerous to the owners and dangerous to others, and the regulations state that if it’s a hardship that prevents people from using their property like anybody else then the adjustment should be granted. Doug Nehaus, with the Aspen Lodging Company, property managers for Galena Place, stated that the buildings were built in 1990 and unit 1 and 2 were not sold right away but unit 3 and 4 had owners from day one. Nehaus said that since day one, there have been problems with the people coming up from the Tippler and hang out down in the garage, both during hours and after hours. Nehaus said that units 1- 4 have had problems for 4 to 5 years with everything from nightly beer bottles being left around to people actually using their jacuzzi’s. He stated that Westec comes around twice a night and once in awhile they will catch someone hanging around and they ask them to leave. Nehaus stated that last Tuesday night someone attempted to break into unit 3. Mervin Mandelbaum, public stated that he and his wife own the condo at 618 S. Galena, next to the Kirianoff’s. He said they were the people who were burglarized on New Years morning and a few weeks ago someone defecated by their jacuzzi. Mandelbaum said they supported the application and on the assumption this is 2 BOARD OF ADJUSTMENT APRIL 5, 1996 granted, they will be making an application because they share the same security risk which is getting progressively worse. Paterson asked if Mandelbaum’s jacuzzi has been emptied. Mandelbaum responded that it does have water in it, however there have been occasions that it has been emptied because people have partied in the jacuzzi at night. Nehaus responded that the jacuzzi’s are currently kept at 55 degrees, but someone could easily jump into it at night. Paterson asked if the jacuzzi is covered, what type of cover is it and could it be locked. Mrs. Mandelbaum responded that it is a padded hard cover that folds back. Nehaus said that this cover could not be locked. Kirianoff said that she emptied their jacuzzi about two years ago thinking that if that was the attraction and she would eliminate it, but it has not solved the problem. Kirianoff said that this is a sincere threat to our privacy and for liability purposes, something needs to be done. The jacuzzi is not the only problem, Kirianoff stated that unit 3 does not have a jacuzzi and there are problems on their patio. Erickson asked if anyone brought a plat map or map of the property showing the footprint of the property, because the three owners are dealing with a problem, if they are all the same maybe there is a solution that will solve them all. Erickson asked how putting the wall in where it is proposed, prevents people from entering the patio, he said it keeps them out of the hot tub but not off the property. Kirianoff responded that the problem is not in the front area, which is more open the intruders are back on the bench next to the jacuzzi where the area is hidden from the outside. She said that if they are out front it doesn’t bother her as much because she can see them before she comes in. Erickson said it is still a liability problem. Kirianoff said definitely, but people do not han out in the front, they are over along the bench by the jacuzzi and sitting on the floor. Erickson asked if anyone had reported this to the City Liquor Authority. 3 BOARD OF ADJUSTMENT APRIL 5, 1996 Kirianoff responded that she has talked with the Tippler, an attorney and her insurance company, and she understands that if the Tippler serves someone too much to drink, they can be held liable. Kirianoff said that she had no proof or indication that they are overly intoxicated, she thinks that they are just in a partying mood and consider this open space. Iglehart asked if a gate, full height, that is not solid, would increase the FAR. Drueding responded that it would not. Drueding stated that Staff recommends denial of this application. DeLuca asked about the subterranean area (below grade) that is not counted in FAR. Dreuding responded that any area underneath the building does not count in FAR, currently a residence closed on three sides and open on one is also exempt from FAR, a portion of the area appears to be below grade and also does not count which is why the original 250 sq.ft. should be amended to approximately 80-100 sq.ft. Herron, public responded that his client hired an architect who feels there is still some FAR available, but Herron said that they are not creating bulk, the bulk already exists on three sides, all we are looking to do is close it in. Rather than trying to come up with something creative, Herron said that the charge is if you find a hardship the board is supposed to grant variances, and he can’t imagine why this does not constitute a hardship, these are not people coming in to create recreation rooms, bedrooms, ect... these are people suffering from a problem. Paterson asked the City Attorney about the two kinds of hardships stated. John Worcester, City Attorney, responded that from the discussion he just heard, he thinks both are right, what you are saying is the hardship cannot be created by the applicant, what he (Herron) is saying is the hardship has not been created by the applicant, but has been created by outside forces. Worcester stated that the standard for a variance has been set forth, it is up to the board to decide whether or not it is a sufficient hardship to grant the variance. There are three things to look at 1) The grant of the variance will generally be consistent with the purposes, goals, objectives and policies of the Aspen Area Comprehensive Plan and this chapter; 2) The grant of the variance is a minimum variance that will make possible the reasonable use of the parcel, building or structure; and 3) Literal interpretation and enforcement of the terms and provisions of this chapter would deprive the applicant 4 BOARD OF ADJUSTMENT APRIL 5, 1996 of rights commonly enjoyed by other parcels in the same zone district, and would cause the applicant unnecessary hardship or practical difficulty. Paterson said that if this variance is granted, the board will be granting, in effect, the variances for the other units. Worcester responded that the board would be hardpressed not to grant the variance to the other applicants, if they came in after you granted this one. Erickson stated two points 1) he thinks that the board is charged to make a minimum variance that solves the problem that will be the minimum alteration from the code; 2) a variance is granted for perpetuity, if the applicant sells the property the people who buy the property may not be of like mind and can then do whatever they want, once this variance has been granted. Paterson disagreed and stated that they will be of like mind as long as the Tippler is there. Worcester stated that a condition can be placed on the variance. DeLuca asked Kirianoff if the variance is not granted, would she install a wrought iron gate or fence. Kirianoff stated that she has a 12 and a 14 year old and she is very concerned about them, and in all honesty she feels that if she puts up something that ugly people are going to complain. Kirianoff said the reason she chose windows is because will match the windows on the other side of the entry door, we have invested alot of money into these condo’s and we don’t want destroy the looks of them. Paterson stated that the board is not suggesting something else at this point, everybody can see that is a very practical solution to the problem and it is obvious that you have some aesthetic sensibility and you want to do the right thing. DeLuca said that Erickson’s concern is that once a variance is granted, this area can be turned into living space without a permit. It has happened to this board before and that is why it is being brought up now. Kirianoff asked if they could put in writing that they will not turn it into living space. DeLuca stated yes, unfortunately it is very hard to enforce. 5 BOARD OF ADJUSTMENT APRIL 5, 1996 Herron responded that if that was the consideration we would never do anything in this City. Herron stated that we have to deal on good faith and we do have rules and regulations and the people to enforce them. Paterson closed the public hearing. COMMISSIONER COMMENTS Schott stated that unfortunately a gate would do the job and the board is not supposed to grant anything if there is another way to accomplish it. Schott said he is sitting on the fence with this one. Iglehart said he concurred with Schott, given the situation there are other ways to mitigate the problem, it may not be the architectural element they are looking for but there is a way to keep people out of there. Iglehart said he felt there is another way to mitigate without granting a variance that is created by a wall. Erickson agreed and said this is a problem for all four units and the gate is a solution that would work for all four units. DeLuca stated that he agrees with the applicant that a fence will not look as nice as windows. DeLuca said people have taken advantages of situations like this, unfortunately the board cannot say whether the applicant, next owner or a neighbor will use this area as an additional room however, there is a way to resolve this without a wall. Erickson stated that changes have been made, the area along the North side of the building was open and three walls were put up later. Erickson also said a nice wrought iron fence would completely enclose the area and would eliminate the liability and by granting this variance the board does not eliminate the Kirianoff’s liability. DeLuca responded that people coming to this area at night to party will not be out in the open with a beer bottles, they will go behind the three walls and sit on the bench. DeLuca also said that a lot of the area appeared to be subterranean and the applicant may need an even smaller variance. Paterson stated that he agreed the applicant has a real hardship, and he would prefer the board grant the variance the way it is proposed, he said it is a minimal solution to a very sticky problem. Paterson stated that he has people in his hot tub on the 6 BOARD OF ADJUSTMENT APRIL 5, 1996 West End of town, he can’t imagine how much more that problem is for the applicant being right next to the bar. Kirianoff said windows were installed years ago, by permit, because they were having this problem and if someone were to fall off the jacuzzi bench they would fall all the way down to the garage. Kirianoff stated that the windows were installed because of that liability and she also lives in L.A. and one of the things she loves about Aspen is that she doesn’t have to look at wrought iron fences which abound in L.A. The straw vote was 3-2 with Erickson, Schott and Iglehart against and Paterson and DeLuca for with the condition that room only be used as it was intended. The applicant chose to table the meeting to June 6th, because Rick Head was not in attendance. MOTION: Erickson moved to table case #96-02 to June 6, 1996. Seconded by Schott. Motion carries with Paterson, Schott, Iglehart and DeLuca voting yes and Erickson abstained. Worcester said he would like to suggest that City Council amend the Municipal Code, currently the Board of Adjustment quorum is four and the applicant needs four affirmative votes, the way it normally is, if there is a quorum then the majority votes. Erickson responded that when applicants see a straw vote, they will table the motion. Paterson said that the board has given the applicant the right to table if there were any members missing. Worcester responded that the applicant then calls the Clerks office to ask how many board members will be there and if the Clerk says that we have a quorum, the applicant will want to reschedule until there is a full board. Erickson said he does not feel the Code should be amended to make it easier to grant variances, he thinks the purpose of having a Board of Adjustment will go out the window. Worcester stated that every time there is a continuance, the Board is subject to attack because the applicant will say they did not get a due process hearing because one of the members did not hear the full record. Worcester said that it did not make sense to set up a committee and force a number of affirmative votes. 7 BOARD OF ADJUSTMENT APRIL 5, 1996 MOTION: Erickson moved to adjourn. Seconded by Iglehart. Motion carries, all in favor. Amy G. Schmid, Deputy Clerk 8