HomeMy WebLinkAboutminutes.boa.20190606Regular Meeting Board of Adjustment June 6, 2018
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Staff Comments ....................................................................................................................................... 2
Commission Comments ........................................................................................................................... 2
Minutes ................................................................................................................................................... 2
Public Comment not on the Agenda ......................................................................................................... 2
Declaration of Conflicts of Interest .......................................................................................................... 2
777 Gibson Avnue – Dimensional Variance Request – Minimum Setbacks .............................................. 2
546 McSkimming Road – Dimensional Variance Review Front Yard Setback ......................................... 8
Withdraw of Resolution #4, Series of 2018 – Granting a Front Yard Variance for the property at 431/433
W. Hallam ............................................................................................................................................. 10
Regular Meeting Board of Adjustment June 6, 2018
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At 4:30 p.m.; Andrew Sandler called the regular meeting to order with Board Members Jim Farrey,
Ashley Feddersen, Collin Frank, Megan Bentzin and Tim Sack present. Also present from staff Jennifer
Phelan, Ben Anderson, Sophie Varga, Kevin Rayes, Jim True and Linda Manning.
Staff Comments
Ms. Manning introduced Tim Sack, new board member.
Commission Comments
None.
Minutes
Mr. Farrey moved to approve the minutes from December 13, 2018; seconded by Ms. Feddersen. All in
favor, motion carried.
Public Comment not on the Agenda
None.
Declaration of Conflicts of Interest
None.
777 Gibson Avenue – Dimensional Variance Request – Minimum Setbacks
Ben Anderson, community development, said this is a complex property. The applicant is represented by
Chris Bendon. The request is for set back variances. The property straddles two zone districts, R15 and
R30. Because of this, the code requires the more restrictive. R30 is applied here. There is a 25 foot
minimum front yard setback, 15 foot rear and 10 on each side. The applicant is asking for five feet at the
front and three at the rear and sides. The Oklahoma Flats trail comes down Gibson. The unusual shape
comes from a remainder parcel. The Creek Tree subdivision includes the trail and the Eagles. This parcel
was left over from the subdivision. This is considered as a single lot even with all the different shapes
and dimens ions of the parcel. He showed images of the site. The proposed home would sit adjacent to
the sidewalk. The strip of property going away from Gibson, showed the view off of the sidewalk. He
showed an image looking up from the trail. The trail recently went through major improvements and
regrading of the trail. There are a lot of topics to discuss regarding the property. It comes down to does
the property and conditions make a variance appropriate. What are the standards and what is the
minimum variance that could be granted to allow building on the parcel. There are specific parameters.
If granted, is the variance consistent with the code. Is it a minimum variance granting reasonable use. If
we applied the literal interpretation of the code would it deprive the applicant of rights others receive.
Are conditions present that justify the granting of a variance. If yes, what is the minimum variance.
Staff’s position is yes, because of the shape and setbacks, they were created to respond to a different size
parcel. If you overlap the setbacks there is no developable area on the property. We feel this is a lot, it
has a development right. The setbacks take away reasonable development on the property. The proposal
is five feet along Gibson and thr ee along the other yards on the property. The application has a design for
a house. Once setbacks are granted it really is not taking into account a specific design. The variance
gets granted and it does not limit what the design looks like. The design could change between now and
permit. The approval would not lock in a design. The relationship to the sidewalk needs discussed. It is
right off the curb. It is not right of way but granted through an easement. It is not setback from the
sidewalk but the property line which is the curb. There are a few proposed head in parking spaces off
Gibson. By code the allowable floor area is 2,785. square feet. The approximate floor area of the design
is 2,430. He showed elevations from Gibson. Staff does not support the proposed setbacks. We do
support a variance just not the ones requested. Setbacks have reasons. The requirement within the
variance standards is minimum variance for reasonable use. There is no relationship to setbacks in
neighborhood context. There is no relationship to set backs found in any residential zone district. There
will be impacts to Gibson Avenue and the sidewalk during construction. There will also be impacts to the
trail and neighbors and users of the trail and sidewalk. The easement to the City of Aspen for the
Regular Meeting Board of Adjustment June 6, 2018
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sidewalk grants at least 10 feet from the edge of the property to maintain a sidewalk. The proposed five
foot would go in to the easement agreement. There are concerns from the engineering and parks
departments. We do not feel the proposed setbacks are minimum to allow reasonable use. Engineering
concerns relate to stormwater mitigation; where will it occur if most of the lot is filled with structure. For
heads in parking; it will require further evaluation. On constructability; what are the impacts to the
sidewalks, relationship of foundation, retaining walls and impacts to existing features. There are practical
concerns about building on a site with steep slopes on a street with no parking available to contr actors.
Slope stability; we will need a steep slope analysis. Snow removal and storage; there is not a lot of room
to operate. We also need to consider the proximity of necessary foundations to existing retaining walls
for trail and pedestrian experienc e.
Parks concerns include the role of trees and vegetation in maintaining soil stability. Snow removal and
storage. No snow can shed from the property onto the trail. Uphill soil stabilization techniques would be
needed. There will also be visual impacts to users of the trail.
Staff recommendation is for a 10 foot front and rear yard setback and five feet for each side yard. That
constrains the developable area to the mid upper area of the lot. It will allow for approximately 1,240
square feet. For rational, we think expanded setbacks have some relationship to context and other zone
districts. We do have other zones with five feet yard setbacks. There is some justification for this
property to have a relationship with other zone districts. We wi ll not eliminate all the concerns. These
setbacks reduce some of those concerns. It does not allow for the maximum allowable floor area to be
developed. That is not the standard. It is reasonable use. It is important to neighbors and users of the
trail to pull some of the massing away from the trail.
If you were to agree to a variance, it would not exclude development of property to be consistent of other
properties. Because of the constraints we want to make sure this or future applicants could not add
additional floor area through the landing of a T DR. Variances when granted have a 12 month expiration
unless a permit is pulled or an extension by the Board of Adjustment. The applicant has suggested
additions to the resolution. They would like a Whereas confirming the relationship to the review
standards and one giving clarity to the expiration.
Ms. Bentzin asked why did the county never address the street. Jennifer Phelan, community
development, replied vacant lots don’t have an address until there is a permit.
Mr. Farrey asked what is the height. Mr. Anderson stated it is the same as every other zone, 25 feet from
natural grade or what is more restrictive. If granted the footprint would change but every other dimension
would be the same in other zones. Mr. Farrey asked do you weigh variance versus height at all. Mr.
Anderson said it is something you can consider. The variance is limited to the footprint with the
understanding that the other requirements would apply.
Mr. Frank asked what is the dimension from parcel 1 and 2 to the retaining wall of the trail. Mr.
Anderson replied the tightest point to the trail under the 10 foot setback is about 15 feet to the trail surface
roughly. Chris Bendon said the point is 12 feet off the trail at the narrowest point. Mr. Frank asked is it
an 8 foot drop. Mr. Anderson replied there is definitely a grade on this property.
Applicant
Chris Bendon and Peter Fornell
Mr. Bendon stated Joe Krabacher and Amos Underwood are also part of the team. He showed images of
the property. It is a very bizarre property. The questions are whether circumstances represent a hardship.
The setbacks deprive any reasonable use. The second part is how you can provide us with reasonable use.
Mr. Krabacher gave the background of the property. Starting in 1946 through 1991, he included analysis
provided by the attorney. He showed the 1946 Lux Placer map of the fathering parcel. 1962 carved off
of that was the Pitkin County exception parcel. A 1967 civil action that created Trac A, Buchanan Tract.
In 1977 Buchanan conveys tract A but left out the Pitkin County exception parcel and Gibson Ave parcel.
Regular Meeting Board of Adjustment June 6, 2018
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1978 Creek Tree subdivision happened just to the south of our parcel. 1991 another quiet title action
occurred. The resulting parcel created this parcel. The property is described as one property with 2
parcels. Parcel 2 is 2,255 square feet. It is accessible from Gibson. There are significant slopes. That is
where the trail crosses the property. Parcel 1 is the southern one at 5,400 square feet. It is much more
accessible from Gibson. It has areas of more gentle slopes. There are encroachments from the neighbor.
The trail does not cross the parcel. The property starts at the curb line. He showed images of the parcel.
There is a carport structure located on the lot, illegally built. The property is located in two zone districts.
Both allow for single family home development. 7,691 square feet gross area with both parcels. The net
lot area is 3,614 when you take out slope reductions. 2,785 allowed floor area. This would be at the 25
foot height limit. We are proposing setbacks for 5 feet in front and 3 for all other sides. We are asking
for a footprint of 53% of the property. He showed foot prints of adjoining properties, one at 63% and one
at 68%. Lots typically in R30 allow for a development area of 66% of the lot. The two R15 properties
adjoining are 71 and 68 percent. Typical is 61% for residential development. We think 53% is
reasonable. Floor area is substantially less than what is happening in the neighborhood. We agree with
Ben there are significant development challenges on the property. There are challenges on all properties.
Given the complexity here we expect alternative construction techniques will need deployed. He showed
architectural drawings. We know we can develop a house here that meet our standards for reasonable
use. We are off the trail. We believe it is a very modest house. We want to go wider and lower as
opposed to skinner and taller. We feel it is important to stay at one story on Gibson.
On criteria, I want to make sure when you deliberate this project you are citing it and making it clear in
the record. 26.314.040A1 – generally consistent with the propose goals, objectives and policies of the
code. We think we have a legitimate right and are proposing a reasonable expectation. The second
criteria is minimal variance made possible by reasonable use of the parcel 26.314.040.A2. We feel this
allows for a reasonable sized home. We also think normal and customary accessory uses allows use of
the outdoor space. The one opportunity to do that is the long stem where we intend to build a pool.
26.314.040.A3 talks about literal interpretation for unnecessary hardship. We think we meet this
component. Two other pieces of special conditions unique to the parcel, not the result of actions by the
applicant. We have setbacks that eliminate all development. That is unique. This is not an applicant
created situation. We need to meet either A or B. We feel we meet A. B is a variance will not confer
special privileges that are not otherwise allowed for properties in the same zone district. The floor area is
reasonable and modest. Ben is right in that we are proposing a 5 foot setback on the front where there is a
10 foot easement for the sidewalk. We understand there would be a second hoop to develop that close to
the lot line. If we don’t get that second approval and have to stay within the 10 feet it is that much more
important for the 3 feet on the other side.
Mr. Farrey said the easement for the sidewalk is 5 feet. The building would be right up against that. Mr.
Bendon replied it is 10 feet from the curb. The sidewalk is about 5 feet wide. We propose to build right
against the sidewalk. The city would have to modify the easement. It is a second ask that we don’t know
if we will get.
Peter Fornell, owner, said as the property was introduced to me the most important thing I found is I want
to make sure driving down Gibson you still see Mt. Sopris. We’ve worked hard to come up with a design
that accomplishes that. We have an overall height at the street level of 18 feet. The 10 foot easement was
not something I was aware of when we started working on this. It concerns me. I could see myself
limiting the footprint on the street front to the 10 feet. In order to do that I have to have room on the
lower side closer to the lot line. The 5 foot set backs overhang vertically quite a bit from the trail. Even
with 3 feet the physical distance from the trail is quite a bit more than what you picture when you hear 3
feet. Peter showed a 3 D model. I’m a 37 year local. I value this town and appreciate being here. I’m
looking for someplace for myself to live in and retire. I think we have a reasonable use for the lot.
Mr. Sandler asked about the history of the parcel. Ms. Feddersen said it is strange some of the pieces
were not included in the subdivisions. Mr. Krabacher said the original parcel was entirely in Pitkin
Regular Meeting Board of Adjustment June 6, 2018
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county. Out of the fathering parcel comes the exemption parcel. Prior to subdivision regulations all you
had to do was file a plat. The railroad used to go through here as well. The Creek Tree subdivision gave
us one of the boundaries. We have not been able to find an easement for the t rail. The 1991 Garish quiet
title created another boundary of the parcel.
Mr. Sandler opened the public comment.
1. Patti Clapper said she has lived in neighborhood for 32 years. She also submitted a letter. She
request the Board continue the hearing and do a site visit. It is a very complex property. It is
heavily used by traffic. Her other request is to consult the city attorney regarding the pending
litigation related to the property.
2. Summer Richards also lives in area. She submitted a letter. T he applicant said it is not an
applicant created parcel. Peter bought the parcel in 2018. I believe he kn ew what he was getting
and that makes it his problem. I don’t think there is a hardship here. It is a small triangle of land
on a steep hill. The area has been wide open for years. I do not think a home should be on this
property.
3. Lynn Carlson, submitted letter. She asked when Peter purchased the property. She assumes he
did not pay what others pay for a buildable lot. He took a gamble buying th is property. He
knows exactly what he was purchasing. He is counting on you to make this a developable lot.
There seems to be a premise that should be granted. Everything I’ve asked for that isn’t to code
the answer has been no. I don’t think you should allow yourselves to be put into a position to
make a non buildable lot buildable. Mr. Farrey said the city has acknowledged a hardship. Do
you fear the taller versus wider. Lynn said he knows he will not get the pool. That is a
throwaway. This is a win for the developer at every level. I’m not concerned it going high
instead of wide.
4. Jody Edwards, representing neighbor to the east of panhandle, Frontier LLC. It is a rare
application that screams to be denied completely. It is ridiculously steep and too small to be a
building site. Huge impacts to trail and Gibson. Staff has been told they need to come up with
something to make it a reasonable use. What ought to happen here is deny the application. It will
then go to council. They will have the conversation as to whether the city should have to pay to
have the site not developed. On Tuesday we filled a quiet title stating they own most of the
panhandle. There is a real question whether the applicant owns all of the property. If you are
going to consider a variance, setbacks create yard space. There are good reasons for setback and
should not be ignored. If granted you are required to grant the minimum variance for reasonable
use. Staff says it is not the same as maximum floor area. What is reasonable use. A lap pool is
way beyond reasonable use. Staff talked about the impact to Gibson. There are houses on the
north side of Gibson. In winter the sun is in the south. If a house is on the south it will shade the
sidewalk all winter. Staffs proposal results in 1,240 square feet. This is also way beyond
reasonable. There are a number of single wide mobile homes across the street at 600 square feet.
The setbacks proposed by staff is not the minimal to require reasonable use. There should also be
no TDRs.
Jim True, city attorney, said related to the adverse possession claim. Under our code we have a
proof of ownership provided by the applicant. Under our code this lot is as configured. I
recognize there may be litigation that disputes a part of it. That is not part of your jurisdiction.
5. Tom Todd representing Dick Volk. He also represents Aspen Stream llc located at bottom of
trail. Dick Volk showed a slide of where his home is. The trail was put in when the bridge across
the river was installed in t he 60’s. He showed an image along the trail with a flag at 24 feet. Let
it impact on Gibson. I would stay away from the trail and keep the 15 on the sides and 10 on the
back. Dick handed out a letter. Tom Todd emphasized that no where it is written that all non
conforming oddly shaped parcels of land are guaranteed development. You should improve
convenience and safety for pedestrians and bikes. There should be undevelopable buffer areas for
trails. Explore new land use tools and potential property acquisitions to provide these. You are
not backed in to granting a variance. Deny the application and have it appeal to council and let
them decide what will happen to the property. As Tim stated in his objections he would never
Regular Meeting Board of Adjustment June 6, 2018
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have granted the easements if he knew the lot would be developed. This is not a hardship. It is a
treasure hunt.
6. Jim Morris, lives on Gibson Ave. I see setback regulations as a means to protect homeowners
from maverick development. This is a flat out gamble. I am anxious that you are suggesting this
land has to be built on. You should not come in with that approach. This will affect everyone in
the area and those who use the trail.
7. Ann Bayard, 866 Gibson. I live in a house right on the road. My property line was ¾ of t he way
across the road until the road was widened. I know what it is like to live in a home next to the
road and it isn’t pleasant. There is only one place for the proposed parking. It is right off the
road and is an issue. Two more parking spaces could be an issue. I think variances are in
protection of neighbors. It is a parcel. That does not mean it is a buildable parcel or should be
built on just because it is there. She is asking for no variance. If you decide to go with staff’s
suggestion it will end up with a bigger home.
8. Hailey Carmer, Garfield & Hecht representing 885 Gibson. The very first criteria is whether the
variance is consistent with the land use code. The purpose of the code is to protect health, safety
and welfare of the citizens of Aspen. We’ve heard a lot about that tonight. It will increase user
conflicts. Construction will cause problems for users of the trail. The other condition is
minimum variance to make reasonable use of property. Is development reasonable use. N ot
every property needs to be developed.
9. Mark Tye, friend of Peter for almost 35 years. The notion someone can’t do what they want with
their back yard is a throwaway, I don’t agree with that. They should be able to do what they
want. A slew of lawyers that want to stop a long time local to build a home reeks of what I don’t
like about this town. The discussion should be how big should the home be. What he is
proposing is reasonable for that lot. I don’t think what Peter is proposing is a gamble. T his reeks
of not in my back yard. I say yes in my backyard. I would like to see him get what he is asking.
Mr. Sandler closed the public comment.
Our job is not to kick the can down the road but to deliberate and not to give it to council. I went and s aw
the property. I understand the hardships. I saw the trail. I get it. It is our job to come up with a
resolution here not kick the can down the road.
Mr. Bendon said he wants to enter the power point and pictures of the model into the public recor d. The
topography is correct on the model. Every property has a right to develop. Those rights are not based on
what we bought the property for. We believe you have in front of you what you need to make a decision.
There were several comments that nothing should happen on this property. That the city should buy the
property. If the city wants to buy it, they’ve known about it for quite some time. They can contact us.
We encourage you to not use your decision making power and reshape how you look at reasonable use to
leverage a city purchase. Don’t deny it to make it cheaper for the city to buy. We have a hardship and a
proposal for reasonable us. There were several citations of the AACP. Mr. Volk said I’ve dealt with
Doug Allen since 1994. He didn’t develop it. I’m skeptical as to what has changed from that period.
Mr. Bendon said Doug Allen never pursued development on this parcel. I don’t know his reasons. Mr.
True said I don’t think what the previous owner did not did not do is relevant . He did come in to discuss
the trail. I encourage the commission to focus on the criteria. The issue if city council would buy the
property is not your issue. Your issue is whether this request meets the criteria or not.
Ms. Bentzin asked it is a fact the AACP is encompassed within our first criteria. Mr. True said the
section of the code states comdev may recommend and impose such conditions of variances to encompass
the goals of the AACP. If you want to express AACP issues and require certain co nditions be added that
is appropriate. The AACP is not a regulatory document. Conditions are allowed by this section. The
director has proposed conditions such as the no TDRs.
Regular Meeting Board of Adjustment June 6, 2018
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Mr. Sandler asked about the sidewalk and where the house will but up to. Mr. Bendon showed an image
of the sidewalk easement. The proposal is to develop 5 feet from the property line or the edge of the
sidewalk. If granted we would have to ask the city to vacate the other half of the easement.
Mr. Anderson replied staff agr ees with that.
Mr. Farrey asked has the applicant agreed because of massing that TDRs will not be used. Mr. Bendon
stated that is an issue that came up with staf’fs analysis. We are fine not landing a TDR here and
accepting that condition.
Mr. Frank asked are there any examples of a rear yard setback variance like this. Mr. Anderson replied in
general, staff is reluctant to recommend variances. We feel the dimensions are there for a reason. We do
agree that applying the R30 set backs create a har dship. What is reasonable and has context to the
neighborhood. That is how we landed on the reduction to 10 at the rear yard. The lot just to the south is
subject to 10 foot setbacks. This is an important rear yard with the trail. We feel there is a justification
where that is a setback that is present. Mr. Frank said in the worst case the corner of the lot closest to the
trail could be a 10 foot setback. Moving south east are there any examples of that setback coming to the
property line. He asked if there is a possibility of varying the setback along the rear. There has been a lot
of talk as to if you can build on the lot. The city has acknowledged it is a developable lot and there is a
hardship. We have to start with someone is going to build on the lot. Mr. Sandler said we look for facts
and peripheral information. You are building on 53% where most are doing 61. Ms. Bentzin said the
first criteria says it isn’t in the right mindset of the Title and the code to develop here than that is a
question. I think there is shown here that there is a right to develop and you can’t build on eight inches.
We need to make the allowance and the variance. The question is the dimensions. I agree with staff that
the reasonable use is 10 feet on the front and back and 5 on the side. Ms. Feddersen said we are not the
ones to decide if it is developable. It has already been decided that it is. I agree with a lot of the public
comment as to how the impact to the trail will change. I am for staff reco mmendation.
Mr. Frank said if we pass a resolution it doesn’t preclude the city from making an offer.
Mr. Farrey stated 26.314 there is a defined hardship. Mr. Frank and Ms. Feddersen said yes.
Mr. True said it is clear you have determined the criteria has been met. The next issue is what is the
minimal variance required for reasonable use.
Mr. Farrey said the variance does not confer upon the applicant any special privileges. My concern for
the neighborhood is 10 and 10. There are properties that are closer to the street. I think closer to the
street is preferable than closer to the trail. Mr. Frank said are we saying the sidewalk isn’t as important.
Mr. Fornell replied I am interested in a compromise. I feel like a concession along the street and giving a
10 foot setback is in the community interest not just mine or the neighbors. I have to stress that I need the
back yard to be smaller to have any semblance of a decent home. You are well below the house when
walking the trail.
Mr. Farrey made a motion to continue the hearing and to work on a resolution. Seconded by Mr. Frank.
He stated he would like an exhibit showing a sliding scale for the rear yard. Mr. Bendon said if we wer e
to propose 10 foot front the proposed 3 foot side and rear yard. To propose from the pinch point we are
no closer than 5 or 8 feet from the corner. It would prohibit us from being closer to the trail. Mr. Frank
said I think that would resolve a lot of the issue. Mr. Bendon said that is fairly easy to describe. That
would give you 18 feet away from the trail. Ms. Phelan said I think it would be worth wile to evaluate
this. Mr. True said there is a motion and a second to continue this. It will need to be continued to a date
certain. He asked if the board would like a formal site visit. All board members support that.
Ms. Phelan suggested June 27th. Mr. Farrey suggested the 20th. After discussing schedules, Mr. True said
the proposal would be to have a site visit on the 19th at noon. The meeting will be at 4:30 on the 19th. We
do not argue the application at the site visit. We are only pointing out locations and slopes. I do believe a
site visit could be helpful.
Regular Meeting Board of Adjustment June 6, 2018
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All in favor, motion carried.
546 McSkimming Road – Dimensional Variance Review Front Yard Setback
Sophie Varga, community development, said the applicant is requesting a dimensional variance reducing
the 30 foot setback to varying 0 to 19 to expand the driveway and retaining walls. The property is located
on the east side of town to the north of Highway 82. Currently it is a single family residence located in
the Aspen Grove subdivision. The home was built in 1964 and annexed in 1987. The applicant
purchased the property in 2018. It is at the bottom of Sumuggler mountain. There is steep topography.
More than 50% is greater than a 20% slope. She showed images of existing conditions. The current wall
is located in the setback up to seven feet in height. The code only allows r etaining walls in the setback up
to 30 inches above grade. She showed a map of the site. The applicant is proposing to demolish the
existing retaining wall and replace it with an engineered one. It will go further back in the setback so the
driveway will be bigger. An additional wall on the lower side would also be necessary to support the
larger driveway. Both would be above the allowed 30 inches in places. She showed a visual of the
redeveloped driveway and walls. The applicant believes the steep slope creates a hardship. The variance
will enable an acceptable driveway width for life safety reasons. It would allow for an easier turn around
to exit the driveway. The new wall will more effectively retain the slope above the house. The structural
memo submitted states it would be prudent to replace the wall but not a life safety issue. A civil engineer
memo was submitted regarding typical required widths of driveways for emergency access. The
requirements reflected in the memo are not consistent with the City requirements. For a setback variance
the property owner must demonstrate reasonable use has been withheld by the city and can only be
achieved by grant of variance. Staff believes none of the three criteria has been met. For Criteria 1 we
believe there is a reasonable expectation that zoning limitations are observed and enforced as uniformly
as practicable. The granting of this variance would not be consistent with the purposes, goals and
objectives of Title 26. In terms of criteria 2, t his variance is not the minimal necessary for reasonable
use. It’s been in use since 1964. Reasonable use of the property and driveway has been established. For
criteria 3, we don’t believe a special circumstance or condition exists that is not applicable to other
parcels, structures or buildings in the same zone district. The current design presents an inconvenience
not a hardship. Granting the proposed setback variance would grant special prividgles to the parcel to
avoid the requirements of the R15B zone district. The inconvenience is not unique and could be remedied
by a different design. The lower wall is purely for convenience of a wider driveway. There are alternate
design solutions that could lessen the impact of the setback. Staff is recommending denial of the
variance.
Applicant – Tim Andrulaitis and Colleen Loughlin Zone 4 architects. We are asking for a variance due to
the front being a unique situation. Parts of the existing house are in non conformance. The rock wall that
is currently present is right in front of an area to retain the soil and the road above. We are asking for a
variance because the existing wall needs to be replaced with an engineered wall for life safety reasons.
The existing wall will not retain the hillside or road above.
Mr. Sandler asked when was the wall created. Mr. Andrualitis replied he is not sure. We must seek the
variance to change the footprint of the wall for emergency vehicle access and the installation for soil
retention for a portion of the wall to the north of the residence. It is imperative that an ambulance can
access the property. The rock wall is at its highest in the corner. In order to get a micro pile machine
back there it needs to widen. The existing wall exceeds 30 inches in a s etback. It would have required a
variance when originally constructed. He showed images of the existing rock wall. It is not designed to
retain soil. That is a life safety issue. They have six kids. In response to criteria. Criteria 1 – the existing
condition of the wall is non conforming. To remedy life safety concerns a new engineered wall needs to
be built. We belief the health, safety and welfare of the citizens and infrastructure is consistent with the
purpose, goals and objectives of the land use code. The request is consistent of the goals of the code. The
proposed design is not visible from the road and will not have a negative impact to the neighbors. Criteria
2 – existing wall does not allow for reasonable continued use of the property. The new wall is the same
Regular Meeting Board of Adjustment June 6, 2018
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height and location of the existing wall. There are two locations where the wall configuration has
changed in order to allow emergency access and for constructability. We believe this is a conforming
wall per the land use code. The applicant believes the wall conforms to Title 26 standards as designed.
Criteria 3- the unique condition on this parcel is that there is a non engineered rock wall over four feet in
height which is currently failing. Other lots in this zone district and neighborhood either have engineered
walls over four feet tall or slopes that are not as sever. The applicant has not taken any actions which
have either created or exasperated the current situation. There are multiple properties in the neighborhood
which have engineered walls exceeding 30 inches in height where steep slopes exist. We are not setting
the precedent, it has already been set. Our hardship is basically life safety and property damage.
Mr. Sack asked for a turn around to be improved, this is the width for it to happen. Mr. Andrualitis
replied it is not improving the turn around. This is access for the corner for the retaining wall to be built.
Mr. Sack asked where is the garage. Mr. Andrualitis showed the location of the garage on the image.
Mr. Farrey said it is a two prong issue; A and B. Is the crux of the issue the height difference. Mr.
Andrualitis said the current rock wall is non conforming. There is no rock wall at location C. Mr. Farrey
asked is C an issue with the city. Ms. Phelan said we disagree with the wall measurement. Mr.
Andrualitis asked what part of this is non conforming. I can lower C to 30 inches.
Ms. Bentzin said assuming wall C is 30 inches there is no problem. Ms. Phelan replied correct. Mr.
Andrualitis said A and B is where the existing rock wall is. It gets widened at B for constructability and
A for emergency vehicle accessibility. Mr. Farrey said for B as far as the equipment getting in there. Do
you define that as a hardship or a cost a llocation. Mr. Andrualitis said we view A as life safety issue. Mr.
Farrey asked what you are proposing versus the existing is 3 feet. Mr. Andrualitis replied approximately.
Ms. Varga said currently an ambulance can get down the driveway. Mr. Farrey s aid to me not having the
equipment access is a cost issue not a hardship.
Mr. Sandler opened the public comment.
1. Tom Sherlock, builder, said this is a really tricky location. The rock wall is part of that. This all
came up when the water line needed r eplaced. It was pretty evident the rock wall was falling apart
and needed addressed. To allow the wall to stay would not be fitting to the home or the use. I
don’t think they are trying to take advantage of anything.
Mr. Sack asked what is keeping you from rebuilding the wall where it currently is. Mr.
Andrualitis replied for portion A we wanted it wider for ambulance access. Portion B is
constructability. Mr. Sack said is there an existing rock wall behind the house. Mr. Andrualitis
replied yes. Ms. Bentzin asked are the other walls in the neighborhood conforming. Mr.
Andrualitis stated probably not. Mr. Sandler asked how the wall is measures. Mr. Andrualitis
replied it is surveyed.
Mr. Sandler closed the public comment.
Mr. Sandler said the hardships are life safety for the family and the home. Ms. Feddersen said there are
safety issues including life safety. There is no public here saying the wall will encroach on their property.
Mr. Frank said reasonable access to the site is part of the development right of the property and are
permitted in the setback. Due to the site constraints retaining walls over 30 inches would be required to
grant access to the site. At the same time the engineering department is denying access from the other
side of the property. Those factors create an additional hardship. Ms. Phelan stated the commissioners
have made some descent points based on the criteria. Mr. Frank said to add on to that they are not
getting special treatment. There is clearly existing walls over the 30 inches in the setback. Ms. Bentzin
said my concern with labeling this as a special condition or unique parcel is for future cases. The fact
there is a wall holding up dirt is typical in the community. The rul es are in place for a reason. Granting a
special condition here may make us liable to future concerns. Mr. Frank said I agree with that. A
condition that would satisfy com dev is a stepped retaining wall. If you built that it would restrict access
to the home. Mr. Andrualitis said I think the rock wall was done rogue to widen the area. There is no
Regular Meeting Board of Adjustment June 6, 2018
10
other rock wall that tall that is not engineered. Mr. Frank said is there any requirement for your current
work to grade the wall to conform to current buil ding standards. Mr. Andrualitis said we are proceeding
after the outcome with a landscaping permit. Anything will be addressed at that point. Mr. Frank asked
is wall C in this resolution somehow. Ms. Phelan said the question is can it meet code or not. Mr.
Andrualitis replied we can meet code. Mr. Farrey said I think you should amend the application to only
include A and B. I don’t feel comfortable weighing in on something not defined. Mr. Farrey made a
motion to amend the application to drop C. We should deliberate a bit more on A and B. Mr. True said I
am a little confused about the resolution. Reduce from 30 feet to a varying 0 to 19. Ms. Phelan said the
site plan shows the retainage as an exhibit. Mr. Andrualitis said we are asking for a variance to do a taller
wall. Ms. Phelan said basically the setback varies based on the wall. Mr. Farrey said I think you are
asking the new wall to move by 3 feet as well. Ms. Feddersen said that is for the access. Mr. True replied
that is consistent with varying the setback from 0 to 19. Ms. Phelan said this feature which should be 30
inches is taller than allowed in the area. Are you comfortable with that request. It is not addressing
anything designated as C. Mr. Farrey said the non conforming non engineered wall is at a higher height
and you want to replace it. In addition, you are asking for a 3 foot swing and the hardship is life safety.
Mr. Andrualitis replied A is for ambulance access and B for reality. It cannot be constructed without
widening it. Mr. frank said it would deny access to the garage and an ambulance would never be able to
turn around. Mr. Frank moved to adopt Resolution #1, Series of 2019 omitting wall C. Seconded by Ms.
Federson.
Mr. Farrey said there is a hardship based on life safety of the non conforming retaining wall. Mr. Frank
said the special situation already exists. Mr. True said the life safety concern is an important aspect of
this. I’m comfortable with your record.
Mr. Frank asked should the resolution b e specific to A and B so other things could not be moved inside
the setback. Mr. true said page 149 the resolution says no other development should be permitted in the
amended front yard. Mr. Farrey said I want the record to reflect an engineered wall to replace a non
conforming wall.
Roll call vote. Board Members Feddersen, yes; Farrey, yes; Bentzin, yes; Frank, yes; Sandler, yes.
Motion carried.
Withdraw of Resolution #4, Series of 2018 – Granting a Front Yard Variance for the property at
431/433 W. Hallam
Kevin Rayes, community development said this is regarding the variance previously approved in
December by the Board of Adjustment. The property contains an existing duplex in the west end. The
proposal was to redevelop with a single family dwelling. Part of the design included several large spruce
trees in the rear yard. Parks would not approve the trees for removal. They came here and received a
setback. Following the hearing we received an appeal that went to council. Council remanded bac k to
BOA for how it meets the criteria. Following that, parks approved removal of the trees. The resolution
voids the variance as long as the trees are removed. Staff agrees with the proposal to void the variance.
Given the trees can be removed a varia nce is no longer necessary.
Mr. Sandler opened the public comment. There was none. Mr. Sandler closed the public comment.
Ms. Feddersen moved to withdraw Resolution #4, Series of 2018; seconded by Mr. Sandler. Roll call
vote. Board Members Bentzin, yes; Feddersen, yes; Frank, yes; Farrey, yes; Sandler, yes. Motion
carried.
AT 7:50 pm Ms. Feddersen moved to adjourn; seconded by Mr. Farrey. All in favor, motion carried.
Linda Manning
City Clerk