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HomeMy WebLinkAboutminutes.boa.19850718 CITY OF ASPEN BOARD OF ADJUSTMENT JULY 18, 1985 CITY COUNCIL CHAFERS 4:00 P.M. AGENDA I. MINUTES II. NEW BUSINESS Case #85-15 / Christopher Case #85-16 / Independence Lodge Case 85-14 / Wienerstube Restaurant III. ADJOURNMENT RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18, 1985 Chairman Remo Lavagnino called the meeting to order at 4 : 05 p.m. with members Francis Whitaker, Ron Erickson, Rick Head and Charlie Paterson present. MINUTES June 20, 1985: Whitaker moved to approve the minutes of June 20, 1985; Head seconded. All in favor; motion carried. CASE #85-16 / INDEPENDENCE LODGE Lavagnino read a letter from the applicant, Stan Mathis, stating the applicant wished to withdraw the variance request. CASE #85-15 / CHRISTOPHER Lavagnino read the variance request: "Property is located in the R-6 zoning category. Rear yard set back is 15 feet when attached to the house, Section 24-3.4 area and bulk requirements. Applicant appears to be asking to build a carport that would encroach 7.5 feet into the rear yard set back. " The affidavit of sign posting was submitted by the applicant. Frank Christopher, the applicant expanded on his request . Mr. Christopher said he felt they had shown there was no action taken on the applicants part that has created a situation whereby they have to request a variance. He believed he had established reasons of special circumstances and conditions for granting the variance in the fact that the City required the original constru- ction of the house to be moved behind a large spruce tree in the front yard which left them with front set backs in excess of 25 feet, far above what the normal front set back would be. In addition many other houses in the neighborhood have carports or garages infringing in the rear set backs. Mr. Christopher submitted a letter from a neighboring property owner in favor of his request. The Board reviewed the letter and plans submitted. Lavagnino asked the details on an old shed on a neighboring property shown in photographs submitted by the applicant. Mr. Christopher explained the shed had been torn down and a garage had been built in its place. In addition Mr. Christopher referred to a garage that had been built within the set backs, on a neighboring property, 1 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18. 1985 without a variance, but with a building permit. Bill Drueding, Building Inspector, said if there was something already encroaching in that location it can be torn down and something rebuilt in the same footprint. Mr. Christopher said he is currently using a storage shed placed on a neighbors property as winter storage for automobiles and other covered storage. He is in the process of trying to remove that storage shed and plans to landscape the lot with the neighbor when the shed is removed. Mr. Christopher said in summation that he felt their circumstances basically comply to those set forth in the code covering variance approval conditions. Further, the construction of the carport would create a safer traffic flow on Hallam St. , in front of their house, by eliminating the need for on street parking. In addition, by removal of the shed on the adjacent lot help improve the esthetics on the block in general . Whitaker commented that most of the old sheds being referred to go back to the coal sheds of the mining days. He did not feel they should be used as a basis for granting a variance. Whitaker added that the Board is supposed to grant the minimum variance and it seems a smaller structure could be built, on the east side using the overhang of the house that exists now. The 16 foot length requested could also be cut down. By doing this there would be less of an encroachment in the set back. Mr. Christopher replied that the design was what he felt was the most esthetically pleasing approach for the back area of the house. In order to only do part of this, structurally we will have to put in a lot more steel support poles and there will be a lot more structure involved. Head read a letter from Sally Glen, adjacent property owner, objecting to the variance request because of the negative impact on her property . Ms. Glen enclosed photographs outlining the impact on her property. Head also complimented Mr. Christopher for the thorough job done in preparing his application. Head said he did not hold much emphasis with existing sheds that have been there since before zoning laws were in effect. He felt the strongest argument dealt with the fact the the applicant was penalized for the tree in the center of the property which had to be accommodated, which is a hardship. 2 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18, 1985 Lavagnino told the applicant that the predominate considerations for the Board were some form of hardship or practical difficulty that doesn' t allow the use of the land. He thought the fact that the tree did not allow the utilization of the entire front yard set backs probably would fall under the category of a hardship. Mr. Christopher has shown there are other properties in the same vacinity and zone who are enjoying a substantial property right that he is being denied because of a particular hardship. However, the Board can only give the minimum variance to fullfill the request of covering 2 cars. The plans were reviewed and a manner in cutting down the size of the proposed carport was discussed. Erickson commented the overhang on the existing house roof could not be used because there are openings cut for light in to the basement, therefore a car can not be parked over them. Whitaker disagreed saying there would be room for automobiles also. Christopher said there was a problem with the placement of the existing supports being used because there would be problems getting cars around them. Lavagnino outlined a way on the plans where that could be avoided. Lavagnino asked why there were skylights outlined for the carport. Mr. Christopher replied they were next to a bedroom and code says it can't be enclosed, for fire egress, from a bedroom into a garage. Erickson asked if the fact that there was a shed on the property that was removed, does that mean the applicant loses his right to that footprint. Lavagnino replied yes, it may have been one of the conditions of approval that it be removed. Lavagnino closed the public portion of the meeting. Paterson said he felt a hardship was created by the fact that the front yard had to have a further set back because of the large tree. It is a reasonable request but I think the height could be cut down and still adequately serve its purpose. I would be in favor of grating the variance under those conditions but not as it has been presented. Lavagnino reopened the public hearing. Mr. Christopher asked Bill Drueding if there was a problem, in regard to the window wells for the basement, if a car closed up the access from the window wells. Drueding replied that the window wells could not have a car parked over them, they are required exits if there is occupancy in the basement and a required egress. Mr. Christopher commented that the window wells were using up 2 feet of his 3 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18. 1985 overhang footage which leaves 3 feet of the overhang that could be used without putting a car over the windows. The Board discussed measurements and total footage now needed for the minimum space required for the carport. It was determined the variance could be reduced to 5 feet by 28 feet. Lavagnino closed the public hearing. Head agreed with Paterson and Whitaker , being in favor of a reduced variance. He stated that the adjoining owner who wrote in objection to the variance would only have sun light blocked from the west which he did not feel would impact her gardening. Lavagnino added that hers was one of the properties that was enjoying an encroaching garage. Head would be in favor of granting the amended variance described. Erickson agreed. Notion: Erickson moved that the applicant be granted a 5 foot variance encroaching on the rear yard set back with a maximum width of 28 feet, to build a carport; Whitaker seconded. All in favor ; motion carried. CASE #85-14 / WIENERSTUBE RESTAURANT Whitaker disqualified himself from this case due to a conflict of interest. Lavagnino read the variance requested: "applicant was given approval for a 500 foot floor expansion by Planning and Zoning. Applicant appears to be asking for an additional expansion of 114 Sq. Ft. floor for an enclosed delivery area and additional interior floor area for storage" Gerhard Meyers, applicant, and Charles Cunniffe, architect, were present. Mr. Meyers said they want to add a wind catch on the back of their kitchen. Mr. Cunniffe outlined their request on the plans. He explained that the delivery area requested is over an existing loading dock and outside. They are proposing covering the loading dock for deliveries. Currently when they open their kitchen door their exhaust is being dumped outside. In addition because of their hours there is no convenient time for deliveries, therefore, the door is having to be left open all day. We thought a more reasonable approach would be to enclose the delivery area allowing the deliveries to be securely left and then at slow points 4 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMET JULY 18, 1985 during the day the deliveries could be taken to their proper areas. Head asked how high the loading dock was off of the ground to which Mr. Cunniffee replied about 2 1/2 feet. The plans were again discussed. Mr. Cunniffee said the other item being requested by this applic- ation was to use the attic space, which presently exists, for storage of canned goods. Right now the space is used for mechanical duct work, etc. There is no head room in this area but it is suitable for storage. Paterson asked what the height of the area was. Cunniffee replied that it goes up to about 15 to 20 feet. There is already an existing stairway, to access the mechanical equipment. Mr. Cunniffee said the existing building was a restaurant once but when it was the whole building was used. The building has now been subdivided and the Wienerstube occupies about 2/3 of the building. Lavagnino asked why this request was before the Board. Drueding replied that the area described was not to be used for storage, it was for access to the air ducts, etc. When used for storage it becomes useable space and has to come before the Board to be approved for use. Mr. Cunniffee added that because of the zoning they are not allowed to exceed the FAR they were able to get on the building without going through the Board of Adjustment. The building department can not grant the use of this space. Head asked what the hardship was. Mr. Cunniffee replied on the delivery area its the loss of energy through the open door. In addition, for deliveries, the hardship now is the disruption of the kitchen by deliveries. The kitchen plans were outlined. There is no place to put items, as the kitchen space is being used to its capacity, when they are delivered so they end up leaving the deliveries in front of the door. Paterson commented that could be a hazard in case of fire. Head said he was interested in the hardship related to the storage area. Is there no other place to keep dry storage? Mr. Cunniffee replied not without building additional space. Lavagnino commented he had seen a storage area outlined on the plans. He questioned what that space was used for, was there no space planned at conception for storage. Erickson asked if this was an all new kitchen. Cunniffee responded that it was a reworked kitchen which is smaller than the previous kitchen was. 5 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18, 1985 Erickson asked how many people the old Wienerstube would handle. Erickson said he was trying to determine a ratio of sq. ft. of space for people versus space for the kitchen. Erickson said he did not feel comfortable making a decision on whether this kitchen is too big, adequate, or too small and thought that would be a consideration for either granting or not granting the variance. Paterson said the applicant would not be before the Board if they did not f eel they had a hardship. Nobody puts in an expense of making a new floor , stairway, etc. without a need for it. It is not that this will allow them to make more money, or put in more seating, or serve food up there. Mr. Cunniffee said it just made sense, with all of the attic space upstairs, that it be used for storage. The problem is because of the zoning laws we are not allowed to exceed the 500 sq.ft. without coming before this Board. Paterson asked if the area was strong enough to withstand the weight of a lot of box storage. The reply was yes, and it was designed in the anticipation that they may be granted this variance. The ceiling had to be restructured anyway and we took it upon ourselves to do it to a level that would allow for the storage should it be approved. Mr . Cunniffee said in covering the cooler area the roof was extended over against the wall which was not planned when they were granted extra space previously by P&Z . We have continued that roof against the building because it just piles up with snow and the area -has to be accessible for the electric meters. This is something that would not be permitted without being part of this variance request. Drueding commented it was an additional 48 feet which was not included. Paterson commented that it was not useable space, only access space for the meters. Mr. Cunniffee said it should also be considered that there will be outside dining in the summer season and there will need to be a place for the storage of the summer furniture. Lavagnino asked if there was enough space in the attic for that much storage. Cunniffee replied there was 412 sq.ft. but they are only requesting the most accessible part. The plans were again reviewed. Lavagnino commented that he sympathized with the feeling that all of the attic space would be going to waste but the Board has to have a reason for granting the request. Cunniffee said they do not have anyplace to store the outdoor furniture. Lavagnino replied that was a matter of convenience and not a matter of consideration. Head said it was a practical space for storage but we have to come up with some reason as to why we should deny 6 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18. 1985 others and grant this for these applicants. Barry Edwards, city attorney, said he had a problem with this request that has to do with what we are going to see in the future with a lot of other people that are out there with similar arguments that don' t have as much merit as this. Mr. Cunniffe went to Planning and Zoning and requested an additional 500 sq.ft. of FAR under the GMP plan, which is a part of the zoning code. The whole Growth Management Plan process is designed to prevent too much commercial space being used. Here you are talking about use of commercial space when talking about storage. It may seem a technicality but the next time someone comes in and says they went to P&Z , planned this whole project from day 1, they gave us the 500 feet we asked for , now we want 500 more. Are you really acting in harmony with the intent of this chapter, being the zoning code. Edwards did not think so. In addition, if the enclosure is allowed above and beyond the 500 sq.ft. that they have already been granted, and were able to incorporate within the plans for the whole project, they could have made something smaller perhaps to get this done. Grant this and you will see, every restaurant in town coming before you soon. Head said he did not recall ever granting a floor area ratio variance. Edwards added specially for something within the GMP and the commercial area. He thought they may have been granted for historical buildings and real problem situations dealing with FAR. This is a situation that is a new project and the same people have been involved in the project from the beginning. My concern is if you start dealing with variances, at this time, in an affirmative way you are not acting in harmony with the GMP. Edwards added that Alan Richman, planning director, supports him in this statement. Cunniffee said they were aware of the need for extra space all along. I was instructed to go through the Growth Management Plan to get the space under the Growth Management process and when I approached Alan Richman he asked why we wanted to go through all that process when not asking for that much space, go to the Board of Adjustment and he would support us. Now he says he can support the delivery area but could not support the whole storage, or that amount of extra square footage. Edwards said Richman had not talked to the legal department when he said he would support the application and at this point he does not support the application for 500 or more square feet. In addition, Edwards said he did not support the request for the 114 sq. ft above the 500 sq.ft. already approved by the Planning and Zoning Commission. Erickson asked if the correct procedure, to get the additional 7 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18. 1985 square footage, would be to go back through the GMP review process. Edwards replied yes, which is very expensive and not worth the applicants effort. I don' t want to see the applicant have to do that but I also don't want to see the integrity of the GMP process eroded by piece meal variances on a new project when they have already gotten an additional 500 feet. Cunniffee said the way he understood the GMP process was that it is also supposed to have some reasonableness to it and allow for reasonable interpre- tation which is the reason we are here, to allow for an interpre- tation. Erickson asked if Mr. Cunniffee hadn ' t gotten an addition 500 sq.ft. above. . . Cunniffee interrupted stating no because the building department is not allowed to grant any more that 250 sq.ft. on any building project. By going before P&Z, and showing them what you want the extra square footage for, allows a total of 500 sq.ft. Within the GMP we are allowed 18 ,000 sq.ft. for this building, if approved, and we only have 5 ,600 and are asking for 500 more. It seemed this was in everyones best interest to approach this through this process rather than to just technically go through the expense of going through the Growth Management Plan. Lavagnino asked if there were any more comments. Edwards said the Board should keep in mind that we are not talking about a discretionary matter for the Board. If this goes to the Boards jurisdiction the code says the Board can exercise the powers they are given to adjust and make sense out of technicalities in the zoning code but the exercise of the jurisdiction shall be in harmony with the purpose and intent of the chapter. I am saying if a variance is granted which goes against the GMP, which is extensive ,and allows for the 500 feet already obtained, then that may not be in harmony and may be against the Boards jurisdiction. Lavagnino told the applicant that only 4 members of the Board were present and the issue can be tabled if the applicant feels the fifth members vote may be important to the variance being granted or denied. Four positive votes are needed for the variance to be granted. Lavagnino closed the public hearing. Erickson said he had been in buildings where energy loss has caused hardship. Basically I would go along with Edwards and don't think I could allow the variance on this, I think there may be other ways of handling the delivery problem. The appl icant has been running a restaurant for a long time and delivery in 8 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18. 1985 this area has been known to be a problem and should not come after the fact. As far as storage is concerned I would deny this on the basis of exceeding the GMP floor area ratio and think they should go through a GMP to get that. Head said he would be in favor of granting the delivery area request. There is already an existing loading dock there which is an eyesore and may as well be utilized. He would not be in favor of the storage area because of the comments made by the city attorney. Lavagnino asked on what grounds he was in favor of the enclosed loading dock. Head replied due to heat loss and protection of deliveries. Lavagnino commented that the argument still prevails that the applicant had extra square footage to work with. Paterson commented he thought in regard to the loading dock the applicant had shown hardship. I would go a step further and say that health and welfare of everybody working in the building is affected by what is going on in the delivery area. They have an open kitchen with no place to put boxes and no place to safely store them which could result in theft. The heat loss is a definite hardship but more than that it is the only door that goes out of the kitchen, if there is a fire and boxes are blocking the area it is a danger. I would be in favor of that variance. I don't think it is an impact on the neighborhood or anyone else, and I think it is a minimum request. In regard to the storage area upstairs, I was in favor, I am not sure if I agree with Mr . Edwards that we are opening doors to everybody, this is a unique situation, the space is up there, it does not affect anyone around or the neighborhood situation, it does not give them a chance to make a cent more money from their operation. Paterson said he would drop the request for the upstairs storage if the Board would reconsider the loading dock area request as a definite hardship to the operation. Edwards had Paterson read the outline for a GMP submission to the Board. Edwards commented that this request is an accessory which is to be used for storage or mechanical or access. Paterson said the GMP submission says nothing about delivery. Head commented the applicant is working with an existing building, not building from scratch, there is nothing to work around and retrofit in an existing building to accommodate their needs in a building that wasn ' t made for a restaurant. I don' t think we should penalize the applicant by the fact that he is not working with a brand new building and a design they can work all of these things into. 9 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18, 1985 Erickson said he understood there was an additional 500 sq.ft. granted to the applicant for use as he put forth in his plans. This is an existing condition that was in the building when the applicant purchased it. The applicant went forward and got an automatically granted 500 sq. ft. , I am sure as a matter of priorities the applicant decided to leave this request out. Why couldn ' t this have been taken care of under the 500 sq. ft. already granted. Lavagnino commented the strongest argument the applicant has, has to do with safety aspects. There is already a problem with kitchen activity going on in the doorway area, I can see maybe having a double entry door. My arguments are really based on the same things as Mr. Erickson' s. I can' t see granting a variance without specifics to a unique situation that hasn ' t been created by the applicant. Lavagnino reopened the public hearing. Mr. Cunniffee said that it had been pointed out that the 500 sq.ft. granted by Planning and Zoning was for this applicant and that is not the case . A large part of that was given to the owner of the entire building in creating shops. The Wienerstube came in as a tenant and took a lot of the shop space but there are still other people that benefitted from that new entrance to the building. The space asked for was in part for the benefit of the building owner. Lavagnino then asked if the applicant was given that 500 sq . ft. to work with. Mr. Cunniffee answered no. Mr. Cunniffee added the restaurant space was used to add an employee toilet upstairs and to add the coolers. The coolers that are there are almost identical to the ones that were there but taken away. Instead of giving us the space we had before through P&Z, take out the 12 ' X 16 ' of coolers and, maybe we can use that space for the delivery area. Drueding said the building only has one attempt for a 500 sq.ft. expansion, the coolers were not there when the applicant got there so when they presented their argument to P&Z they said they wanted 500 sq.ft. to be partially used for coolers. Cunniffee said they were essentially penalized because the coolers had been taken out one month before they moved in, therefore, they had to use there allowable additional footage for coolers to be placed back where they had always been. Drueding said the applicant had also put in a permanent roof over the coolers. 10 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT JULY 18, 1985 Drueding asked Edwards because P&Z granted the use of the space for coolers, if it is used for something else do they have to go back to P&Z for an amended request. Edwards said he thought if they changed the representation they would have to go back to P&Z or be in jeopardy of being red tagged because it is in violation of their conditional use permit. Mr. Cunniffee asked that the case be tabled until a fifth member of the Board could be present. Motion: Head moved to table this application to the July 25, 1985 meeting when a fifth member can be present, Erickson seconded. Lavagnino asked f or a roll call vote: Paterson aye Head aye Erickson aye Lavagnino aye All in favor ; motion carried. Motion: Head moved to adjourn the meeting at 5: 28 p.m. ; Erickson seconded. All in favor ; motion carried. Kim Wilhoit, Deputy City Clerk 11