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HomeMy WebLinkAboutminutes.boa.19870903 CITY OF_ASPEN BOARD -OF- ADJUSTMENT SEPTEMBER--3 -19$7 4:00-.--P.-M. A-G--E -N-D A I. CALL TO ORDER II. ROLL CALL III. MINUTES OF AUGUST 13, 1987 IV. CASE #87-9 Dale and Sally Potvin V. ADJOURNMENT RECORD OF PROCEEDINGS BOARD OF ADJUSTMENTS SEPTEMBER 3, 1987 Chairman Remo Lavagnino called the meeting to order at 4: 00 pm. ROLL CALL Answering roll call were Francis Whitaker , Charlie Paterson , Josephine Mann, Rick Head, Anne Austin and Ron Erickson. MINUTES OF AUGUST 13, 1987 Ron Erickson moved to accept minutes as corrected. Charlie Paterson seconded the motion with all in favor . CASE #87-9 DALE AND SALLY POTVIN Applicant appears to be requesting a rehearing of Case # 87-9 which was a request for conversion of a carport to a garage that already encroaches into the rear yard setback . Joe Edwards, representative for the Potvins: I just have a few more things to present. Joe first entered into record affidavit of posting, photograph of posting and copy of original sign of posting. Fred Gannett: This is a continuation of a public meeting. We have to give notice to the public that the issue is coming up for reconsideration. Ron: The last meeting on this was complete. Joe: We felt that since the last hearing was closed and it was completed that anybody who might have been paying attention may have felt that there was not further reason for them to ever concern themselves with it and since we were asking to re-open the issues that it would be appropriate to give notice again . Also notifications were sent to all surrounding property owners. Remo: I just want to know if that is the procedure we should follow in the future on re-opening a case like that. Fred: Paul and I have talked on whether or not it is necessary to send out letters to everybody within 300 ft . We have not come to a definite conclusion. In terms of reposting on the premise that would be our minimal requirement. Remo: I appreciate the applicant going through the whole process. Bof A9 .2 2 .87 Joe: The other thing I would like to introduce and I am pulling it out of Dale ' s home photo album is the original photo that sort of precipitated our finding out that he did not really do it as I have referred to in the affidavit. It is hard to see that from the zerox but I am going to put the original photo in your file so that everyone can see it. Dale brought his home photo album to the last meeting and I saw it but we were really trying to concentrate more on variance than the nonconforming use issue and it didn' t dawn on me until the conclusion of the hearing that the fact that the east wall of the carport had always been connected to the house and therefore had always been part of the principal residence. I realized the significance after the hearing. One of the reasons for our denial which Francis pointed out quite strongly was that Dale had done it when he connected the roof . He caused the problem by causing this to become a nonconforming structure at that time. When I went over it with Dale, I said "Dale what is the story on this wall?" He said, "Well I don't know, let' s call and see if I can find the prior owner" . We were able to do that and we got--let me tender the original affidavit from the owner. He was able to find Mr . Fultz whose father had built this house in 1962 who advised us that that is the way it had always been. When he originally built it, he built that east side wall continuous with siding from the house to the carport all the way along. Therefore, the carport was always a part of the principal structure. Therefore, Dale had not caused the nonconformity when he came in in 1982 and did the roof connection. I apologize to the Board for my not having found that out in my prior conversations with Dale. I had decided to describe the history . The sidewall didn ' t come up until I saw than photograph. Remo: Well the photo itself would not have been too valid because there is no date on it. It could have been taken last year. Joe: There is none other than Dale ' s testifying that he took these photos which he can do and should do when he first bought the house and put them in his family album in 1982 . Dale: I certainly would testify that these are original pictures taken at the time I purchased the house in 1982 . Basically our recollection is that the east wall was connected and in order to document this we went back and talked to the prior owner and he verified our recollection that that indeed was the case. 2 Bof A9 .2 2 .87 We tracked him through addresses that we had from other agreements that we had when we purchased the house and were able to locate him and he concurred with the fact that the east wall was connected. Joe: So that became significant in my mind that because one of the main reasons that we had been turned down was that we had caused our own hardship. Therefore I called up Erin who was then acting on this matter and was discussing what we ought to do about it . It was her suggestion that we bring it back to the Board. That this is a good piece of evidence and that the Board should probably have an opportunity to relook at the matter in light of that and therefore I went through the process again. The other thing that we did since we discovered that Dale had not caused the problem and it had been like that for 25 years, we resubmitted our request for the building permit back to the Building Department. In my letter to Jim Wilson which you have a copy attached-- Remo: Did you ever get a reply? Joe: Jim Wilson and I had a phone conversation on Exhibit A under the petition for re-hearing--that is my letter to Jim on the 13th of August--Jim and I had a phone conversation on the 24th August and I asked him what position the Building Department would take with respect to my letter of August 13th . His response to me was that this was the first time anything like this had ever come up and that he felt like he would prefer to have the Board decide it than him unilaterally take a position on it. I asked if it would be all right if we could incorporate an appeal of his decision not to act positively on our request with our desire to rehear the issue of the variance because of our new evidence. He said "Fine, that would be no problem" . He would agree to that. I asked Jim to prepare in a letter that fact and was told he would prepare a letter. As of today, I have not received the letter to that effect . Bill Drueding: I talked to Jim about an hour ago and we had talked about it before about the possibility and an hour ago he said he did not write a letter and that any comment to the Board would be that he defers to the Board. He is not going to make a decision, he is going to leave it up to you guys. Remo: That is what he would have told us anyway. 3 Bof A9 .22 .87 Joe: So he did deny our request but he said "I feel that is a case of first impression" . That is one of his words. It is the first time he had ever seen anything like this . Remo: But he made a determination that he was not going to give you a permit. Joe: That is correct . Remo: So he did- make that determination that- you were in some violation. Charlie: Otherwise he could not come before us. Joe: He did not determine that we were in violation. He did not go that far, Remo. He just said "I won' t issue you your permit-- Remo: Why? Joe: He said "I think this is something I have never seen before and I want to defer this to the Board" . Bill: He left it up to you guys. Joe: That is exactly what he said. Anne: It is still a nonconforming structure. Fred: There are some questions of fact that need to be answered. The facts that I see as major to your decision are as to whether or not the east wall existed as represented in 1982 . If the question in fact is correct then that takes the issue to the Board. Bill' s refusal to make a decision constitutes a rejection of a permit . The Board has the ability to appeal or to reverse that decision by making a determination that the wall did exist and by then taking the subsequent-- Remo: He could have made that determination then. Fred: He could have. Remo : That the wall existed by the same evidence that we are getting. Bill: That is not what he was asked to do. Remo: Well now, wait a minute . That is what Fred is just talking about . 4 Bof A9 .2 2 .87 Fred: It appears to me without talking to Jim that Jim, based on the new issue presented to him, did not feel that he could make a positive decision in favor of the applicant because of the newness of this issue . And that essentially what he was deferr- ing to the Board was the opportunity to--the fact of not making a decision, he rejected it. He appealed his decision on that basis or to go to the second issue of looking at the possibility of granting a variance. That is not to say that he couldn ' t have . He just simply chose not to. Now we have not been in a position--Bill and I have talked at length about this--I haven ' t talked to Jim nor has my office talked to Jim in terms of making a recommendation to him as to either grant or deny the permit. We are prepared to make recommendations to the Board on that basis. We were not asked and did not make recommendations to the Building Department. Joe: So I guess if everyone' s read my memo, I don' t want to be redundant and bore anybody but I do want to make a couple of points. We are here really sort of reviewing two things. One, we are reviewing Jim Wilson ' s defacto rejection of our new request for the issuance of a permit on the grounds of the nonconforming use, nonstructural addition. And the second thing we are doing is bringing back for your reconsideration our request for a variance based on the fact that we did not cause the problem which was one of the primary reasons for our rejection in the first place. Ron : Fundamentally, Jim Wilson did not make a decision. The decision was Bill' s to make. Bill made a decision. Bill rejected the permit based on his interpretation of the code . So you are, in effect , appealing Bill ' s decision. Bill ' s decision was ratified by Jim' s decision not to overrule it or not to take any other action to it . So essentially what we are doing is appealing a decision of the zoning office so-- Remo: Well, let me understand then from Bill--why did you reject the permit based on the new evidence that was presented to you as far as-- Bill: Because I still feel that under Section 24.13-3 Section A that the fact that the wall was there or not, further enlargement of that carport to a garage increases nonconformity. And I go to that Section--no such nonconforming structure may be enlarged or altered in a way which increases non conformity. My interpre- tation has been basically upheld by other people I work with, the Planning Department, former City attorneys and this Board of Adjustment that the addition of this bulk on this sort of foot- print that this bulk from a carport to a garage increases the 5 Bof A9 .2 2 .87 nonconformity. That, in essence, is still my interpretation and that is what basically I think you have to have a rule . Remo: Bulk being enclosure--that is bulk . Bill: Absolutely. Remo: And that by definition is in the code? Bill: The word bulk is not. Remo: It isn' t. Bill: OK. It may not be enlarged. I feel it is an enlargement. We are not dealing with an enlargement as necessarily FAR, not necessarily footprint. I feel that added addition of those walls is an enlargement in those setbacks and it increases the noncon- formity. Francis: When that house was built in 1962 there was 5 ft rear yard setback? Remo: That' s right. Joe: Our argument really is based on Section 13-5A which you can also refer to the highlight of 13-3 . Both of those sections are quoted in my memo to you on pages 2 and 3 . What it essentially says what the nonconformity we have here is not a bulk nonconformity, it is not a use nonconformity. Our nonconformity is a setback of 7 ft 8 in. Remo: But he (Bill) has made a distinction now by what his definition of bulk is . And I don ' t know whether you have addressed that. I read your memo and everything and I--and now he is bringing in an issue that enclosing a carport increases it. Not the argument that you gave--it increases its bulk by addition of the enclosure. Joe : Its bulk is not nonconforming. If we had some kind of volumetric nonconformity, then I would agree. Remo: So that has to be FAR you are saying. Joe: That' s right. If we had an FAR problem such that we are now enclosing an additional space and violating the FAR then I would agree that that enclosure would be an expansion of a non- conforming FAR. The only thing that we were turned down for was that fact that we were in the setback. The rear yard setback . That is the nonconformity. That pad has been poured for 25 years. 6 BofA9 .22 .87 Remo: You have made yourself quite clear. I am trying to get this subtle distinction that he is making that the enclosure of 4 walls creates bulk. You have not addressed bulk in your memo. Joe: I did because what it says is Section 24-13 .5A says that on any nonconforming structure work may be done on ordinary repair, repair or replacement of nonbearing walls provided, and this is the bulk thing, provided that the cubic content existing shall not be increased. We already had a floor , a ceiling. We had walls and we had partial walls on the north and the west side. What we have done is replace those partial walls on the north and the west side with full walls but the cubic volume is defined by the parameters and we did not increase that. Remo: Let me find that out . If this were part of the main building and it did not have any walls--if this were a structure and it was part of the main building--a room let' s say--didn ' t have any walls--had a ceiling--would you enter that into the FAR? Bill: If this were part of the main structure and-- Remo: It didn ' t have any walls. Ron: Like a porch. Bill: And a porch and it went into and it' s already-- Remo: It is not enclosed--it' s open. Bill: The thing is the carport is exempt from that-- Remo: No, this is the main building. It has nothing to do with a carport--a room in a main premise that does not have any walls. Bill: My interpretation there is--we don ' t have the clearest codes here--sometimes you can ' t talk to each other--will you repeat that? Remo: We are trying to find out what constitutes bulk. If the carport were part of the enlargement-- Bill: Here is what I am saying. This is where we get onto those three words--this enlargement thing. What he is doing with these walls is enlarging them in the setback he is enlarging this thing. It' s adding bulk. He is continuing construction within that setback whether it be up or down. He is continuing const- ruction--additional bulk--additional construction in the setback to make this more so it will stand longer . And the intent is not 7 Bof A9 .22 .87 to encourage survival. So basically we are stuck with--if you read this enlargement--not FAR, it doesn' t say may be enlarged. That is just my interpretation. That is my basis of it. If you don' t agree with that-- Fred: I think when the Building Department has been in situat- ions like this it has to interpret the section as narrowly as possible and to use the term "enlargement" is a very broad platform for saying that any action that increases the appearance of the nonconforming structure is prohibited. We have hit on this case here something that challenges that premise head on . And the question is is whether or not the terminal argument includes the concept of adding density interiorly--not exteriorly into that encroachment. I think that is why I look at it as a factual issue. If the factual issue is such that the enlargement does not, by the activity of the applicant, increase the noncon- forming which in this case here means moving into the setbacks, it may not be an enlargement. It may not constitute an addit- ional encroachment . Francis: According to my geometry which I studied a long time ago, cubic content means 3 dimensions. The roof and the east wall and part of the other walls were in existence in 1962 . Is that correct? Joe: Correct . Francis: Then it seems to me that by putting a garage door , the cubic content is not being increased. Joe: On this issue exhibit B to this memo that I gave everybody is a case in which the Supreme Court in New Hampshire where exactly this same issue came before the court and they say that where a storage room, and instead of using it as a garage, there was an open carport which encroached into a rear yard setback and they enclosed it and made a storage room out of it. The question was is that an expansion of a nonconforming use. And the court held no. It said "Where storage room which owners of a noncon- forming property constructed by enclosing a previously open carport and pouring a cement floor and which did not constitute living quarters for another family and did not effect the proximity of the dwelling to adjoining lot lines and where the added room did not enlarge the square footage of the dwelling so as to render the lot size proportionately more inadequate , the construction of the storage room did not constitute an expansion of a nonconforming use" . So this very identical issue--it isn't Colorado law--but that very issue happened in New Hampshire under the very same facts and they felt that that is not an expansion of the nonconforming 8 BofA9 .22 .87 use. And I said the nonconforming use was in the setback and we did not expand that. We also in sort of desperation--we offered to under Section 3 , what it says here in nonconforming uses that you cannot enlarge them but it says you can retract them. It does not say what happens when you don't do anything. I think that is what para- graph 5 refers to and says that you can make changes to non- structural as long as you don ' t expand the content . But in desperation because it was specific and says because we can do things to decrease the nonconformity, we have even suggested to Mr . Wilson that we would move it back 6 inches. And therefore decrease the nonconformity. We would, however, want to enclose it . That would cost Dale $4,000 .00 because it is a huge beam that supports that end of the carport, a huge post and it is a monumental job to move it back even 6 inches. That would include moving electric meters and gas lines but it is cheaper than taking this thing to District Court and being in Court for another year about it. As a last ditch alternative we would definitely prefer something else. And there is a case there which I cited that is a Colorado case which is found under C which is the Purlmuder case where this deals not necessarily with an area variance. It deals with use variance which is more strict . But in that case the guy had a brick yard and they zoned him residential and he then proposed to change it to a shopping center and the Court said that a commercial use is more restrictive than an industrial use and therefore since you are going down in intensity use scale you absolutely have a right to do it and the Board of Adjustment or Building Department can't deny you that right. And that is a use variance and we are dealing with an area variance, that would be analogous of our request of an absolute right to reduce the nonconforming. Going on to the second request which is the issue of the re- hearing of the variance. I cited in the memorandum some quotes from American Jurisprudence to try to clarify this distinction between use and area variances because the first time we were here I was not that clear in that distinction and I thick there was some confusion in everybody' s mind. There were statements of this as an illegal use and it is not either a garage or a carport. This is an allowed use by right in this zone. And the only variance that is involved is strictly a setback variance. And the court cases have held that when you are dealing with an area variance which does not really change the character of the use of the neighborhood. It is not like plopping a commercial use in the middle of residences . Then a lesser standard of burden of proof is allowable. You don ' t have to find the 9 Bof A9 .2 2.87 unnecessary hardship. All you have to find is the lesser standard there. Ron: The lesser standard being practical difficulty. Joe: And Dale has some additional presentations on that. We went in and measured his automobile and I would like to tender another exhibit where he--this is Dale ' s writing but I will explain it to everybody. We have 24 ft 6 in. It is actually about 24 ft 10 inches from the back of the house all the way to the front of the existing carport/garage . Now that is actually about 10 inches. But along that side wall are gas lines and some utilities. There is electrical-- Remo: That are in the carport area-- Joe: That are in the carport area and you really don' t have the use of that last 4 inches. You just couldn't drive a car all the way up-- Remo: These utilities come out a lot more than 4 inches. They come out about 4 feet. Joe: Well they may but they are running up along the back of the wall, they come out about 4 inches. Now they may-- Remo: Well, the utilities themselves--I don' t know whether it is a washer/dryer or whatever and it is defined by the concrete coming up off of the carport. Joe: As it existed-- Remo : And it also--it doesn ' t show on here--there is also storage on the left hand side and the right hand side. If you use the footprint of the garage, it would be just where the lips are. Dale: We are discounting that. If I took all that out, I would still be limited to a loss of 4 inches at a minimal for the existing gas lines and electrical lines along that back wall. Joe: We were trying to see if it was possible if we moved it all the way back to the setback, would his car fit in there. And the answer is no. Remo: Right. Joe: By 3 inches with no space-- 10 BofA9 .22 .87 Remo: Right. But then we are here to allow you the minimum variance too. That is part of our-- Joe: We were trying to figure out what would fit in there. And these dimensions of the car being 16 ft long and that door frame that holds the garage door is 9 inches back and the track mounting for the door that would have to go behind that we came up with 17 .1 and then our encroachment setback of 7 ft 8 inches comes to 24 ft 9 inches and if we took our washer and dryer and all the utilities and all the cabinets and he work bench and everything that is along the back wall of the house out we would only have 24 ft 6 inches. So we come up 3 inches short being able to even stuff the car in there at all and I think this is evidence of a practical difficulty. It would be extremely difficult to--in fact it is impossible to fit the car in a garage if we have to conform to the setback. Ron: I don' t know if that would be a practical difficulty. But I think you have defined what the minimal variance would be. I don ' t think we could cut that variance down at all because he can' t fit the car in. Joe: The practical result is that you have to have room to walk around the car. Ron: What I am saying is we really can' t cut back the request for 7 ft 8 inches. Remo: I think we can. I don ' t understand--if you took the utilities out you could still have it 4 feet that we could get rid of here . We are allowing a foot so you don ' t hit some obstructions so you don ' t hit those utilities . But there is definitely 4 feet between the back wall and that curb part at the end so that your car has to go within the framework of that curb cut, right? That is what we should be measuring in length and width. And that is what we need. That would be the minimal of anything. Joe: 7ft 8 inches is just a basic reasonable number to have room to get around the car at both ends. Remo: But you can get around the front. You could cut the utilities there now. But you have got those things so you are negating your own thing by having the utilities. I don' t think we are going-- Joe: I don' t want to get hung up on that. I just want to show you that it was physically impossible to conform to have a garage and conform to the setbacks . And if we are dealing with a variance as opposed to an appeal of a denial of a permit under 11 BofA9 .22 .87 our first request that we think we are entitled to by right, then we have to go into--and you guys are all familiar with this- -and I pointed out in here that the clearest case of practical difficulty and this is quoting from page 6 of my memorandum-- first off they say that practical difficulty is generally agreed that it is a less stringent requirement than unnecessary hard- ship. So it is some lesser burden and what constitutes practical difficulties. Those are 2 very generic words. What the heck does that mean? The Court essentially says there is no pertinent definition, that you guys have to decide that on a case by case basis. But one of the criteria "it has been held that practical difficulty is shown by circumstances which demonstrate that a literal enforcement of the zoning restrictions would have the adverse effect of pre- cluding full enjoyment of the committed use, or would render conformity with the zoning restrictions unnecessarily burdensome. And so that really is our argument that it would be unnecessarily burdensome to try to drive that all the way back and to require him to cut off his garage. And that to no allow him to have an enclosed garage where everybody else on the block has one is denying him and precluding him the full enjoyment of the per- mitted use which is a garage enclosed. I have pointed the real bizarre inconsistency in the code whereby Butch Clark on the corner was allowed to access his house from 2nd street and put his garage 5 feet from the alley. Yet everybody else has to be 15 feet from the alley. So the 4 corner lots-- Remo: But he is also 15 feet from the adjoining property owner in the rear. Anne: No. Joe: Actually he isn' t. Remo: Well, he should be . That would be--that is the reason why he gets 5 feet on the alley is because he loses 10 feet in the rear. Whether he has got that or not that doesn ' t make any--and also isn't there a 6 and 2/3 foot requirement on a corner lot? Bill: Yes. Remo: So that he would lose because he has a corner lot and it has to do with vehicular traffic being able to look around the corner so the setbacks are set back a little bit more on a corner lot. So he loses something by having a corner lot . He isn ' t necessarily gaining and that is a quirk in the code . Joe: It isn' t just a quirk that I find out that on one hand we say might have all of this space down the alley and then our own 12 BofA9 .22 .87 code allows a way that causes a constriction at either end which, if anything, it ought to be wider at the ends for sight visibil- ity. Remo: It is. It is required. But it is on the corner, not on the alley side. Joe : Perhaps the Board may want to recommend the Council to consider taking a look at that some day. It does seem to be a quirk that we -ran across. - Beyond what is in our memorandum I don' t have anything else to add. We would ask theBoard to either grant the variance or in the alternative to find that we are entitled to replace the nonstructural walls and we are not expanding the cubic content and either one of those would be satisfactory. Remo: You use the word replacement about an 18 inch overhang or something? I don't believe that came out in the first meeting. What is this 18 inch--a partial wall? Joe: No. Down from the roof there is a post a beam with a flat board roof . Remo: Sort of a valance? Joe: Yes. It came down from the roof on the posts. There was a wall. A sort of skirt or valance or whatever you call it. But it was above the height of people walking and then it filled in from there on up to the roof. And what we are proposing to do is fill it in from there to the floor and put a garage door in there that you can open and shut. Remo: That wasn' t brought out . Joe: That is true, it wasn' t. Remo: And I did not know what you were talking about replacing a wall. You are extending that replacement which in essence is the same thing as expanding . The issue is still before us. It doesn't change the issue much. But you still want to completely enclose. Joe: Correct. Ron: I am confused as to when the various walls were construct- ed. We know now that the original east wall was in existence in 1962. What about this wall here? When was that constructed? Dale: That was completed then also. 13 Bof A9 .22 .87 Ron: That was a complete wall . Joe: That was built-- Ron: That was a full wall--enclosed wall. Joe and Dale: Yes. Ron: So this part of the house, when was that part of the house built? Joe: In 1970 . Ron: 170? We didn ' t even hear of an addition in ' 70 , did we? Bill: Sure. Ron: I thought it was 181 . 180 and ' 81 . We talked 172 . Joe: That was an addition that was added in 1970 . Ron: OK. This was done in 1970 here. Joe: Correct. Ron: OK. When was this part built? Joe: There was a partial wall up high right here. The valance ran all the way across like this. And Dale extended these down to the ground all the way along here. Ron: What about that one? Joe : I don ' t know. Dale, this little section here. was this already here? Or was that extended when you extended this little piece right here? Dale: I think that that was probably added. Ron: So this was all added later. Joe: About 2 years ago. No, a year ago. Ron: And the thing is--I am not an architect so it is hard for me to understand, I can conceive of a carport very simply being 4 posts with a roof on it. You are talking about north, west and south nonbearing walls. Joe: We are talking about north and west nonbearing walls. 14 BofA9 .22 .87 Ron: But the thing is up until 1981 or ' 82 when you connected the garage or the carport to the house, prior to that there was an opening this far, right? Joe: There was an overhang in the roof . Ron: An overhang between the main--that' s right--but sometime anyway you connected this which is the roof line to the house. Joe: Right. Ron: OK. So this point here or say this corner here--that is where the roof was bearing, right? The posts, you had 2 posts, I guess these, this is what held the thing up, right? These posts here? Joe: There are posts there, I don' t-- Ron: The thing is that there is a post there. That is a bearing post, right? You take that out of there, the roof is going to fall down. What I want to know in 1981, what was holding that roof up? Joe: The posts. Ron: Posts. Where? Dale: The same spot they have always been. Ron: Here. Well no, you are saying this is the roof. I mean there is a wall here holding it up, right? Joe: No, nobody said that wall is holding it up. Ron: So where is the post? Joe: They are not shown on this drawing. But they are in here. There is about 6 or 8 of them. Ron: So in other words, this carport was not connected to this addition at all. Joe: It has always been connected by this east wall. Remo: By the east wall. It would have been an enclosure but it had no bearing load on the carport. Ron : OK. What I am saying is that the main house was not holding up the roof or doing any of the bearing-- 15 Bof A9 .22 .87 Remo: I don' t know about the main house. The same thing with the main house? Ron: No. It had nothing to do with the carport. The carport is holding up the roof of the main house and the main house is helping support the roof of the carport. Joe: If you took away the posts, I doubt that little piece of siding that was flanged in there is going to hold anything. Ron: I was just trying to understand what a nonbearing wall was. Remo: More pertinent is the east wall . Was the east wall attached to the posts? Dale: The posts sit about 3 and 1/2 feet in from the east wall. The posts are in the interior. Remo: What supports the east wall? It stands by itself? Dale: It is a framed wall. Remo: 2 X 4s and attached to the house. And it is free standing all the way back? Or it is attached to the roof I guess . Ron: Pulled up to the house. Is it attached to the house too? So in other words that keeps it from blowing in at that corner there. We were talking about your argument--something about--you were talking about reducing the nonconformity. That you are allowed to reduce the nonconformity of the structure . The ordinance says that. But I think there is one thing to be considered here and that is that the secured space is a different structure than nonsecured space? I think that we will all agree with that. Right? Joe: Either of those is allowed by right in this zone. Remo: That is right. Joe : Either a secured space or nonsecured space--absolutely allowed by right. The only nonconformity here is the intrusion into that setback. Remo: Right. Ron: I don' t understand that. Joe: Well, they are two different things . The one is a use-- Ron: Oh, I understand that-- 16 Bof A9.22 .87 Joe: One is the setback . Ron : I understand that. But the thing is that I don' t think that they are the same. I don't perceive them as being-- Remo: Well, what distinction do you make? Ron: What I am saying is that a secured space, and basically that is what you are doing here, up until right now it has been an unsecured space. He wants to make that a secured space. Remo: Bill 's argument is bulk. Bill' s argument is that any wall that-- Ron: I am not talking about security in terms of freedom from theft. What I am saying is--maybe it is to keep the birds out, I don' t know--the winds from blowing through, the rain from coming in. I mean a structure that is unsecured and is open allows the elements to come in . When you close that off, you allow the elements not to come in--that is a separate structure completely. Remo: Oh, I don' t know about that. You can keep a window open-- Ron: I think it is a difference between a leanto and a cabin. Joe: Both are allowed, Ron. Ron: I am trying to understand this, that is all. Charlie: We are going too far here. These minutes are a book long here already. Francis: I wish we would move on here. Charlie: We have nitpicked this to death. Remo: If we still have questions to be asked by members of the Board, they should be heard and the applicant should address them. Anne: My question is on the first page of Joe' s letter. It says "In this case whether you use the encroachment area as a carport or garage , a storage space or a bedroom is irrelevant" . My concern is "or a bedroom" . I think we have to def ine here--a carport or a garage is the same thing. A bedroom isn' t. Remo: The definition is accessory building. We have to put in any kind of motion that we make that this is an accessory building where no bedrooms are allowed and no addition like a 17 Bof A9 .22.87 second story. You could use the same argument that if you put a second story on this, the footprint doesn' t change . Anne : That is my concern . My concern that this cannot be converted into a bedroom down the road. Remo: Unless we say that this is an accessory building, I think we preclude them from-- Joe: We would be glad to commit that this be used for nothing but a garage ever. And that it would not be a bedroom. I should have left that out because that does lead one to believe that maybe we are expanding the residential thing and it clearly is not our intention. Absolutely we would agree to a covenant not to do that. I was just making a point to Jim Wilson that the allowed uses are not what we are talking about here . The nonconformity we are talking about is 7 ft 8 inches . Remo: Are there any other questions from the Board? There were none and Remo closed the public portion of the meeting. Charlie: This case has become so long winded and is being such an overkill , I wish to make my statement very short . I am in favor of this variance on the basis of the new evidence . Josephine: I am glad that Jim Wilson brought this to us. I want to acknowledge what Bill has said about his interpretation of this and I agree with Bill that there is a question here about-- it isn ' t clear that this is not an enlargement. That some of those walls were extended outward and so on. I am very happy that we are the ones who are deciding it. I am in favor of this variance now that we got that east wall decided upon . That really helps matters . There is a practical difficulty here because the structure was built a long time ago. There is a practical difficulty here because you can' t make a car fit in without extending into the rear yard setback. I think it would be unnecessarily burdensome to say that this lot just can' t have a garage door on it because it is too far back into the setback . I agree, it is encroaching into the setback but we know that that neighborhood has a lot of encroachments so I would say that I would be willing to grant this variance the way it is. Rick: I agree with Charlie: I think this is quite a bit of overkill on this . I too share both Charlie' s and Josephine' s opinions. I would agree to grant this variance. I might begin by saying that I commend the counsel for the applicant. I think he has done a tremendously thorough expansive job on this and the points he has raised are well taken. I particularly am interest- 18 Bof A9 .22 .87 ed in his way of circumventing all of this by moving the wall back 6 inches and reducing the nonconforming. That is certainly an avenue of getting around, circumventing this whole thing. But I agree and think that there is a practical difficulty. I think the findings by the Court in Massachusetts wherein they say that we do not agree that the defendant' s enclosure of the carport constitutes an expansion of the nonconforming use. I think that lends some credence to this whole matter. I further agree that it does promote and secures the public community' s safety. I think thefts and all the things that are going on in that neighborhood probably could constitute an avenue for which we could grant a variance . And I further agree that it is within the spirit of this code. I think this is certainly a case where we should grant a variance . Francis : My main argument in the first hearing was that the applicant had created his own hardship. Now that new evidence has been put before us that objection is no longer valid. I agree again with what the Massachusetts Supreme Court said and I also feel that the cubic content will not be increased. That is very important. I am in favor of the variance. Anne: I don' t feel that we are changing the use by changing it from a carport to a garage. We are not increasing the bulk in my opinion . And as long as we limit the use as an accessory building, I have no problem with granting this variance. Ron: I have nothing to add. Remo: I don' t think the Board has really addressed the issues here. The first one being that--I think there are two issues here. One of them is--his first--he has 2 requests and no one has addressed the 2 requests that he has asked for. The first one is to replace a non-structural wall on a nonconforming use in which he is .really addressing the Building Department' s assess- ment of what they believe to be an increase to bulk of a noncon- forming use. I would deny them. I think what we are doing here is opening up Pandora' s box. Anyone who has a carport now based on what all these people that sat here will now be able to enclose it without adding , as Francis said the cubic content would not be increased. So that anyone who has a carport now can enclose it. That is, in fact , what you are say by granting this variance. And I would be against granting him the variance . Well not granting him a variance but granting him the interpre- tation opposed to the Building Department' s interpretation that we are not adding bulk or cubic content to it. Rather I would grant him the variance based on the fact that we have now grandfathered his request for a variance by the establishment of an east wall that existed since 1962 giving us the basis for actually 2 and 1/2 enclosures of a structure--the one wall being 19 Bof A9 .22 .87 a nonbearing west wall. All he added was a portion of that wall and a portion of the rear wall since the valance existed. And on that basis it seems to me that if we grant him a variance from-- through the practical difficulties and through the spirit of the ordinance in allowing him these few extra feet to enjoy the property right that others are enjoying in the same vicinity and zone. We satisfy the applicant and we also satisfy the integrity of this Board and we don't disrupt a principal involved here that might allow everyone else who has a carport to come before us and give us the same arguments--not as a precedent but as a principal involved here about enclosing their carport and not adding any- thing to the footprint or any square footage or whatever other arguments that were faced here. So if you are letting him have a variance , I would be in favor of it but I would definitely define it as a variance and not a contradiction to the Building Inspector ' s interpretation of the code . In effect , I think what it does is negate everything he has done before on that basis and anything in the future that might come before us. And it has not really been determined yet how to define that particular area. Fred: From the City attorney ' s viewpoint in terms of Erin 's research, they have also asked us to recommend to the Board that the Building Inspector ' s interpretation not be overruled and that preserves for us the opportunity to explore the interpretation of the code and bring it to Council for elaboration if necessary. It doesn't set a precedent until we find out in that respect as to whether there are other applicants with similar situations. If the Board chooses to grant a variance--as the Board well knows it doesn' t create a precedent. Each situation is considered on its own merits and is not to be relied on other than principals. I recommend that the Board not overrule the other office ' s decision. Francis: In some cases where the Board has granted a variance with certain restrictions, there has been a document prepared to record it in the County Clerk ' s Office . Fred: We do recommend 2 things. One is that the variance be the minimum variance only so that it is an accessory building not to include a second story. And secondly that a covenant be prepared and recorded in the real records in this county. Remo: I suggest to the Board that the City Attorney' s Office prepare a resolution to that fact and a motion to that fact regarding this case affirmatively if the Board grants this variance . Fred: We would be happy to review the form. We will have Joe do this thing for us. 20 Bof A9 .22 .87 Remo: We still have to come to vote as far as the determination of that. Joe: We have no problem with the restriction of no second floor and that it is to remain for use as a garage. Charlie: I move that we grant this variance on the basis of the motion prepared by Mr. Edwards and checked by the City Attorney. Ron seconded the motion. Ron : Was that the way you want to do it? Shouldn ' t we take first things first and that is that we uphold the Building Department' s ruling and that second that we grant a variance-- Remo: I think that is inherent in the minutes as part of the record. Joe : You have disposed entirely of the case by granting the variance and the other issue not to ever be confronted. Remo: But it is still part of the record anyway because we talked about it. Joe: And you have considered it and no decision was reached and that allows total flexibility to the Building Department and the City Attorney to do something at Council if they so desire. Fred: I would prefer that your motion stated the variance be granted to allow the applicant to obtain a building permit to enclose the structure and create a garage . And that the restrictions that were made be included in that document, that there be no further encroachment that it be as an accessory building. Charlie: I so move that we change to that wording. Francis seconded the motion . Roll call vote: Rick Head, yes, Josephine, yes, Charlie, yes, Francis, yes, Remo, yes. Variance was granted. Charlie made a motion to adjourn the meeting. Josephine seconded the motion with all in favor. The time was 5: 12 pm. 21 Bof A9 .22 .87 i Jaryice M. Ca ney, CIF Deputy Clerk 22