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HomeMy WebLinkAboutminutes.boa.19920608 CITY OF ASPEN BOARD OF ADJUSTMENT JUNE 8, 1992 4.00 P.M. SECOND FLOOR MEETING ROOM A G E N D A I. CALL MEETING TO ORDER ROLL CALL II. CASE #92-5 (CONTINUED FROM 6.4.92) RUTH HANRAHAN III. ADJOURN NOTICE OF PUBLIC HEARING CASE #92-5 RUTH HANRAHAN BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962 , as amended, a public hearing will be held in the Council Room, City Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24 , Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: Date and Time of Meeting-I. Date: June 8, 1992 (Cont. from 6/4/92) Time: 4 : 00 p.m. Place: Second floor meeting room, City Hall Owner for Variance: Appellant for Variance: Name: Ruth Hanrahan Ruth Hanrahan Address: 805 Bonita Drive Location or description of property: Lot 23 , West Aspen Addition, Filing No. 1, 805 Bonita Drive. Variance Requested: Property is located in the R-15 zoning category. Allowable Floor Area Ratio for the lot is 5,028 square feet. Applicant is requesting a Floor Area Ratio increase variance over the currently built by 153. 68 square feet. Will applicant be represented by counsel: Yes: X No: The City of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado 81611 Remo Lavagnino, Chairman Jan Carney, Deputy City Clerk RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT JUNE 8, 1992 Chairman Remo Lavagnino called meeting to order at 4: 00pm. Answering roll call were Ron Erickson, Rick Head, Anne Austin, Charlie Paterson and Remo Lavagnino. CASE 92-5 RUTH HANRAHAN Continued Remo: I just finished hearing the tapes just 10 minutes ago of the meeting of last Thursday on this application. So I am very familiar with what happened. If you have any additional information you would like to present we would hear that now. Myler: I don't believe so. We covered the bases pretty thoroughly and there was a thorough debate following our presentation. We would answer any questions you might have on this but at this time I don't think there is anything new to add. Anne: I have one comment I thought about since our meeting. I don't know if it would make sense but maybe if we take once piece at a time rather than looking at the whole picture and whether it would make sense to look at the overhangs on the balconies first as one issue and see whether we had any objection to that and go from there to the kitchen as the second issue. Remo: You mean the overhangs being that they are allowed the 3 feet? Anne: Yes. If we look at the overhangs--all they are talking about is enclosing under an existing roof area and whether you felt that that warranted a variance or not because it is a minimal impact to the neighborhood. And then going from there to the kitchen which is really where the additional protrusion is to the house. Remo: I would like to know whether the 3ft overhang which is your right once it is enclosed all of a sudden it doesn't become an overhang. It becomes part of an FAR. Is that right? Or it is not included as the FAR. Myler: Using drawings--This is how we are envisioning that it works. We are not proposing to extend the roof projection at all . Remo: And that is not included in the FAR? Myler: Here is how it works. The first 3ft is exempt. Everything outside that is included. So if we enclose the whole deck that BAM6. 8 . 92 exempt area then has to be added to the floor area because it is now exempt from the FAR calculations. If we were to enclose half the deck we would be trading exempt area for counted area and we wouldn't need any variance. So we could do that as of right. Remo: Which means in effect you are forfeiting any other right to extend this beyond 3ft? Myler: That is correct. Colombo: You are allowed eave space of 3ft beyond the building line. We propose for no new eave construction to occur. Francis Krizmanich from the Planning & Zoning Dept arrived. Myler: Francis, what we are proposing is to enclose an existing deck area. Using drawings he explained the project. The first 3ft of overhang is exempt. The rest of it is included in the FAR. So by enclosing the entire deck we are basically increasing the floor area that has to be counted by the amount of exempt area which is no longer exempt because it is not an overhang. We are not proposing to extend the overhangs out. The net effect of enclosing this entire deck area is to increase the floor area by the amount that was previously exempt. Another point we were trying to make is that we could, as long as there was no net increase in FAR, extend the living space out into the decks a certain distance. But as long as there was the trade- off there-- Remo: I have never encountered anything proposed in that manner. Myler: That is not what we are proposing. Remo: But to include--to exempt an extension that no longer exists into your FAR and then try to get credit for it is something I am not sure you can do. Myler: We are not doing that. - - - - - - - - Remo: Well, you are saying you are eliminating the 3ft that-- maybe I am misunderstanding you. You are saying that if you didn't have this portion here to deal with all you are asking for is this portion. Myler: No. The variance that we are asking for is to allow us to enclose this and increase the floor area by that area. So in other 2 BAM6. 8. 92 words once we enclose it it is no longer exempt. So it has to be added on to the floor area of the house. So in my letter where I showed you the 87sgft over here plus 66 of previously exempt area over here totals the 150 that we are adding onto the house. So I am not asking for credit for that. I am acknowledging that we have to count it once we enclose it. Remo: I know but you are saying that it was an exempt area so that you are utilizing an exempt area. Myler: Once we utilize it then it has to be counted. Anne: That is not a trade-off. Myler: That is contemplated in the application. Remo: So what is your argument for the basis for us granting you a variance on that argument? Myler: Twofold. First of all the hardship argument exists irrespective of what we are doing to the house. I think that this comes into play in the context of minimal nature of the expansion that we are proposing. Enclosing these decks is not visible from any of our neighbor's properties except the lady who lives in the other half of the duplex. And we feel that it is completely unobtrusive, relatively invisible and doesn't have any sort of negative impact on the neighborhood. From my reading of the regulations surrounding variances there are two main issues. #1--is there a hardship that we are trying to deal with. #2--are we doing the minimal that is necessary in order for us to accomplish our objectives. Remo: What I don't understand is--this is covered, right? Myler: That is right. Remo: Why isn't that included in the FAR? Francis Krizmanich, Zoning Dept: I think what it says in the City Code is once the projections are over 3ft you count it all . But how we do it is just like Dave showed you. So if that was all no deck, 5ft roof overhang, go along underneath the roof you would subtract 3ft--just count that 2ft all around and that would be added to FAR so we give you that 3ft overhang. That is what Dave is saying. By the way we do it now if you went out 3ft here and around here and around here this extra space is what would actually be counted 3 BAM6.8 . 92 as floor area. Remo: Even though there is a deck out to that portion? Krizmanich: Yes. (reading from code) "When decks, balconies, stairways, etc. are above natural grade and they are covered by projection from the building which is greater than aft, such areas shall be included in the calculation of floor area. " Remo: But you are giving them credit, I believe, to go the whole line across that building. Krizmanich: That is right. Remo: There is no projection in the other area. Right? And yet you are giving them credit for projection in that. You have given them credit. Krizmanich: Yes. We do that consistently in the City. Everybody gets that 3ft. Now I am not sure that is what they meant when they wrote the code. But nobody is around to tell us what they meant and that is the way we do it. So everybody gets 3ft as a give away basically. Remo: So they could dogleg out 3ft in the covered area. Krizmanich: With no penalty. Remo: That is weird! Myler: We are 28ft under the allowable FAR. Remo: And how much is this extra in this area? Myler: 66. Which is the area that was previously excluded. Anne: But that is not 66 in excess of the 28. Myler: If we were to just fill in the deck we would be 38 feet over. Remo: And the Planning Office objects to this. Krizmanich: Basically, we don't see a hardship for the extra floor area. Anne: You don't see a hardship in that the neighbor took advantage and took all the floor area? Remo: No. I don't buy that. Krizmanich: You are allowed a certain square footage in the structure. We don't sit there and say "Oh you are partners. You get 50 and you get 50. Oh, there are 3 partners. You get 3-3- 3 . " You have got your FAR. We don't care how you divy it up. Remo: That really bothers me--the City-- 4 BAM6. 8 . 92 Krizmanich: I think, Remo, that that is a good future discussion point. It somewhat bothers me but I must tell you that that is the consistent treatment now. Remo: But you have never been confronted with a situation such as this. Krizmanich: Oh yes. Remo: In the same manner as this? Krizmanich: You bet. If you want to fill that in, you can. Remo: I know that you can but you haven't--it hasn't been presented to you as a hardship. Krizmanich: For floor area, you mean? Increased floor area? Remo: I know they are allowed to do it but I don't feel they had room to do it in. And you have said "OK, we are going to do that. " But this is a situation-- Krizmanich: I was speaking to that 3ft situation where we often have people that want to enclose underneath an overhang and we give that aft away basically. As far as a hardship I don't know floor area variance in the City. I think talking to Bill that he didn't know of any. I know we granted one in the County in recent memory. Remo: I came prepared to not give you a variance. And I have got my arguments here and I feel very comfortable with this. In seeing the plans which I couldn't follow now I see a kind of inequity here that I think can be--there is a certain amount of justice here that can be prevailed without having to go through a whole set of technicalities on. It just seems that in closing that one area I would modify a variance that you not ever have any projections beyond 3ft in that area as an overhang. And that you would relinquish that. Ron: You want to allow them to build out an additional 3ft though in the future? Remo: No. That is what I am saying. Ron: In other words what you are saying is you can't expand beyond what they currently have. Remo: Yes, the roof line--everything. I don't mind their enclosing that envelope is what I am saying in this particular area. I think that they are presenting a unique situation where through--although it is no cause of the City's problem that this 5 BAM6.8. 92 has occurred, it seems to me that this portion--I have got to stay away from--I know Charlie's arguments on precedent setting don't apply. But the precedent in this case set would be to exceed FAR maximum without foundations of arguments based on our guidelines of what hardships and practical difficulties are. And that this is a unique situation and I think this particular area of your request for a variance is unique. The other part I am not in favor of granting. To constitute unnecessary hardship the hardship must not stem from the actions of the applicant. I think special circumstances were involved here but they were incurred between Ms. Hanrahan and her neighbor. And the Board shouldn't grant relief from decision by Ms. Hanrahan, however naive, to relinquish whatever FAR rights she had. Colombo: I see we have two problems here. One is that you are having a hard time justifying the hardship part of this thing and two would be cause and effect and what the solution we are presenting is. Myler: The code doesn't give you a precise definition of hardship. It is a decision that is made based upon the facts that are unique to each particular situation. I am sure that you sitting on the Board have seen your share of creative arguments over the years in terms of hardship. The code does speak of circumstances which operate to deprive the applicant of rights commonly enjoyed by others. It doesn't limit hardship to some physical characteristic relating to the land or the building. It talks of unique circumstances. In this case there are circumstances which have operated to deprive Ruth of the opportunity to utilize expansion potential that every other property owner does have. Remo: What are they? Myler: The expansion potential? Remo: No, the circumstances. Myler: The circumstances are the somewhat devious methods employed by her neighbor. Remo: But that was not the City' s doing. Myler: It doesn't have to be. Remo: Well, it does. Colombo: And those circumstances were exacerbated by changes in 6 BAM6. 8 .92 the code in recent years which now count square footage double in stairways but also includes mechanical rooms which were previously exempt. Remo: But that is for everybody in that whole vicinity and zone. It doesn't say "you, Ruth Hanrahan are under this" . It takes everybody into account. So we are all suffering under the same code adjustment. So it is not unique to this particular property. Myler: That is true. We didn't raise that as a hardship argument. If you will notice I mentioned that in the letter that I wrote as simply a circumstance which I used the phrase "added insult to injury" . That is not the City's fault and I don't think we are here to claim hardship as a result of change in regulations. Remo: But you are telling me that something that developed between her and her neighbor which was their doing--not the City's-- initiated within a possible covenant within those two duplexes. The City looks at it as a single entity and has a specific FAR maximum restriction. And the City can't divide up the FAR between the two. As a matter of fact the argument could be made that maybe she got a good deal because she has less FAR than her neighbor so the property might have been cheaper than the other property was. I don't know. And it doesn't concern the Board as a valid argument for granting a variance. Myler: I am not asking you to resolve the conflict between two neighbors. And I am not suggesting that the City is at fault in this case. And I don't think that establishing that the City is at fault is an element in determining hardship. The City is not at fault if the physical characteristics of a piece of property are such that you need a setback variance. Remo: Or that a bad experience between two neighbors has anything to do with it. Myler: No. But I am saying that physical characteristics of the property might give rise to a variance. And that is not the fault of the City either. It is extrinsic circumstances that are unique and that operate to deprive an owner of opportunities that other people normally have. All of those things exist here. So from my perspective there are enough circumstances to support a finding that there is a hardship. And the inquiry is, is what we are doing obtrusive. Does it have a significant impact on the neighborhood at all. And we have done our level best to minimize those impacts to put all of the development on the side of the building that none of the neighbors 7 BAM6.8 .92 can see and to stay within the basic confines of the building that already exists so that as you are looking at these changes they are virtually invisible. Remo: I would agree with that one aspect only because of the physical nature of the building. What is there and what you are intending to do seems to me--I am trying to justify to grant you a variance on that aspect of it. But the other arguments that you are giving me have to do with actions that were initiated by the applicant. Myler: Absolutely not! Remo: And we can't give you relief from mistakes or bad decisions or as you put it circumstances that were devious, taken advantage of. These are direct quotes from the tape. And it seems to me that while it is your right to request a variance before this Board the arguments presented don't address our guidelines. That is all . And it appears to me that the relief you seek might be best achieved in a civil court, not with our guidelines. That is the problem. And it is not to preclude that--I don't know--I heard the argument that you may just get monetary damages but I don't see why the court would preclude their taking whatever was built and I don't know what provision was made on the other duplex. Take it out of FAR and give it back to Ms. Hanrahan? Ruth: Would it be valuable for the Board to come out to the site to take a look? Remo: No because this involves a principle regarding our guidelines for granting a variance. The code states that there is a certain maximum FAR and that you have to show us that your situation is so unique that the code does not offer you relief. You don't get your relief from the strict adherence to the ordinance. And from the evidence that is presented it sounds like a mistake was made earlier, however naive, and it is not the fault of the City and the City can't grant--or we can't as a Board or I can't as a Board member, can't grant you relief based upon that kind of evidence. It is just not unique to the property. It is due to the action of the applicant. In seeing the physical reality of what you are trying to enclose there and it is part of the envelope. It is part of the footprint. It is a matter of imposing two sides that has a roof over it. As I remember before this seemed like a aberration and an aberration to me is a unique situation that allows me to make excuse for granting a variance in this particular case but only for that area. Any new addition outside of the envelope is not valid from my perspective in granting a variance. That is where I stand. I am ready to listen to arguments from the Board members or from anyone 8 BAM6.8 .92 else. Charlie: One of my arguments was that earlier there was discussion made by the applicant that they didn't have a mechanical room. And so the mechanical room was down in a dirt cellar. Is that correct? Colombo: In a crawl space. Charlie: In a crawl space underneath the building. And I feel that we are not doing a service to the City or the neighborhood or to Ms. Hanrahan by refusing her to put a proper mechanical room in this renovation. Now if she puts the mechanical room where it is shown, she won't have a kitchen left. I looked at the plans and I agree with the architect. He chose a place that makes sense. To put a mechanical room somewhere and give her a little relief so that she can have a little more space for a kitchen. She wouldn't have a kitchen anymore. You take this kitchen here as existing and you take the mechanical room that is shown, there is no kitchen there. And I feel that that is a very minimal request to give her a decent kitchen. I have a strong feeling that the Board of Adjustment is here to give relief for special circumstances. And in this case I think- -everybody has a right to have a decent place to live. That is why I live here in Aspen, a lot of us do. I know it has nothing to do with the legality that you have mentioned. But just taking the mechanical room along--what is she going to do? She hasn't got a kitchen now. And she has a right to have a decent mechanical room. What are you really accomplishing by-- Remo: I am not an architect. I don't know-- Charlie: If we have to consider that-- Remo: You are telling me that there is no other place for-- Charlie: No sensible place. Remo: Well, how do you know? How do I know? Are you talking as an architect now for the Board? Charlie: Yes. Remo: I am not an architect. Charlie: That's why I am here on the Board--for my expertise. Remo: But that is not our problem. We are not designing their home. If they have another child or 2 other people or the mother- 9 BAM6. 8 . 92 in-law comes and they say "Well, we have this problem. We want to expand" . That is not our problem. That is a matter of convenience for them. They would have to sell the property. Move somewhere else or stay within the limits of what they have. Charlie: In our guidelines it says that the people have property rights that are equal to other people in the neighborhood. Right? Remo: Yes. We are not denying any property rights. Charlie: Well, I think we are denying here a decent living space because she doesn't have it. Remo: Well, she could have had it. Charlie: But she can't get it now because of a devious situation. Remo: That is not our problem. Hanrahan: Isn't downzoning another hardship situation? Remo: No. I have been downzoned from R-6 to R-30. Rick: You did that voluntarily. Remo: Well, everybody did. Everybody in the zone incurred the same problems. Anne: But before the downzoning she had 170sgft of additional FAR she could have added onto. But with the downzoning now she has only 28sgft. I think that is a hardship. Remo: But they all have downzoning. Anne: But it would have allowed her a little bit of relief. She is not even asking for as much as she could have had before the downzoning. She is asking for less than that. Remo: Well, we are dealing with the code the way it is and unless she is different from everyone else in that same vicinity and zone- -if she can show me that she is unique and has a unique problem. Anne: Well she has a unique problem considering her next door neighbor. We have looked at the garages where 5 people next door have a garage and 1 person doesn't. She has a huge disadvantage Ruth: She has 1, 000sgft more than I do. Anne: She has a huge--it looks like a caretaker unit. 10 BAM6. 8 .92 Remo: But that is not a disadvantage. How do you know it is a disadvantage? Anne: When she bought that piece of property, the neighbor had not expanded yet. They were planning it. Remo: Right. She signed away her rights. Anne: When she bought that piece of property that had the potential of being remodeled, increased in size. It had all those potentials. The neighbor took that potential away from her without her being aware of it. Remo: That' s not the City's problem. Myler: I would like to make an analogy. I have been giving a little thought to some of the public policy aspects of this thing. And although it is really hard to find a direct analogy situation I think what I kind of want to describe to you is fairly close. But say instead of a duplex you have got 2 lots side by side. And the owner of Lot A builds a house that is 2, 000sgft when he has an allowable of 4 , 000sgft. And the owner of Lot B comes to the City and says he has also got 4, 000 and he says "I want to build a 6, 000sgft house and I want to use the 2, 000sgft from the lot next door. Even if this person agreed, they City wouldn't do it. The City would not allow that kind of variance for density. Remo: It' s illegal. Myler: In this case you have a partnership that owned in common the expansion potential. And one partner basically took it from the other and used it and the City asked no questions. Remo: No, because that is legal. You are saying "took" and I am saying A gave it away to B. Myler: Well, you could have the same situation here. Remo: You can't do that. You can't do what you are proposing. Myler: Actually if you can't do it here why could you do it there? Remo: Because one is allowed and one is not allowed. Myler: You can't do it here without some form of agreement but you can do it in our case without any agreement. Remo: Because that is the way they legally--by having a duplex instead of 2 single family dwellings. 11 BAM6. 8 . 92 Myler: Well, it is not a duplex. It is one property that is owned by 2 partners. Undivided 1/2 interest in the whole which means that Ruth had an undivided 1/2 interest in that expansion potential. Including the expansion potential. The development rights that are attendant by that land. That is a property interest--that ability to expand. It is a very valuable right. Ron: Absolutely. But it is not assigned to one unit owner or the other the City has decided. It is the same for all undivided duplexes over on Cemetery Lane. We have heard a lot of cases on undivided interest--not exactly the same situation but enclosing lots, enclosing back yards and garages etc. But basically they are set up in such a way that those 2 owners have to decide what goes on that land. All the City says is this is the maximum. You can't put on any more square footage than this. What you do within that is up to you. Anne: But there is nobody overseeing that one doesn't take unfair advantage of the other one. Ron: I don't think there necessarily has to be. You are talking about "Big Brother" here. Remo: Why is government responsible for things like that? Anne: But she has been taken advantage of. Colombo: It does create a situation of hardship for her. Remo: But it is created by the applicant. The applicant did not have to sell or give away or whatever. Colombo: If you read the letter she just said "I don't object to the improvement" . Anne: She was not told she was giving up her FAR. Remo: Buyer beware. Ron: Say you are selling a house. And you represent 4 , 000sgft with another 1, 000sgft potential to build and you make a mistake. And you are off by 800sgft. Do they come to the Board of Adjustment and say "Hey listen my realtor sold me a house and said I have 1, 000sgft that I can build on. Give me a variance of 800 because she misrepresented" . No. You would sue that realtor in court. You don't go to the City. It is the same thing. Why doesn't the City regulate realtors for what they say? That is basically the same thing. Charlie: Let's go back to the principles here. The reason we sit 12 BAM6. 8 . 92 on this Board is to see that substantial justice is done when there is a problem. And I don't care what you say legally--continually legally--we have to look at justice. We have to look at humanness and we have to look at all the ingredients that are necessary for us to make a judgement. It isn't enough to throw up the legalities. I don't think that is right. I think we have a job to do as a Board of Adjustment and that is that substantial justice is done. And that is what I base my judgement on. Remo: It is all within the guidelines. We can't legislate. Charlie: It is part of the guidelines. Remo: It is part of the guidelines. But it is not the whole guidelines. The guidelines are based on hardship-- Anne: It is a hardship in three lines here. And there are two that don't claim hardship-- Remo: Well, I don't think it is a hardship. I think it is a hardship. But it is not based on Board of Adjustment guidelines for a hardship. We have got to make it according to what this Board was set up to determine to grant variances based on guidelines that we have to establish in order to grant them a variance. And my contention is that we haven't met those guidelines. If we could meet the guidelines I would be happy to. This is not a personal thing. It is a case of principle. One thing that David said was that this was a subjective determination. I heartily disagree with you. This is an objective determination. If this were subjective determination, we wouldn't give half the variances to people we didn't like. And gave it all to people we like. So it is really based on the facts that are presented to us and based on the guidelines in which we have to make a decision. I think, Charlie, you like to take it beyond what our purview is and I would like to do that a lot of times. But I don't think it is fair to someone else coming to us and giving us the same information and saying "Why can't you grant me the variance when I have almost the same unique situation that someone else has?" I can't justify it. That is all. I can't justify it on the basis of the evidence presented to us. However there is a nebulous little area that bothers me. And I am not too sure it is clear in the code. I don't think the code has addressed it properly. And that is that 3ft--that enclosure there. I just see it as a way of--it is like a gnat or a mosquito. Ron: What is your problem there? 13 BAM6.8 .92 Remo: My problem is that structure is an enclosed structure right now. Even the 3ft because the 3ft exists almost where it is enclosed. And as long as they don't come out 3ft more which would seem to me to add more bulk. Right now the bulk and the footprint and the envelope--it is the matter of enclosing something. It looks solid. Ron: But the thing is according to Francis, there is another interpretation of the code. And that is that they couldn't do that. They couldn't do that 3ft--that extra 3ft. They gave them 3ft the whole length of the building and a lot of the overhanging. Remo: They were penalized for the 3ft. Ron: No, they weren't penalized. Remo: Enclosed area they don't' have it. So they can come out 3ft. Ron: You are allowed to come out 3ft anywhere automatically. If it is only 3ft. Remo: I understand that. Ron: All right. This counted as FAR. They can enclose this right now without any variance. Remo: Right. Ron: What happened was, according to the code, anything beyond 3ft had to be counted. So they gave them the first 3ft. So they gave them all this thing free. The code says "Anything more than aft has to count as FAR" . One interpretation of the code is if this is more tan 3ft from here to here all of it counts as FAR. Remo: It used to count that way. Ron: Well, there is an interpretation--the City is not interpreting it that way. The way I look at it is that anyone who comes in here in a situation like this is given a bonus of 3ft for the length of their building. Anything they want. Francis: Another way you can look at it is she could put an overhang the whole way around the building off the roof. Colombo: We are talking about overhangs here. Eaves face. We are not talking about enclosures. Although you gave them credit for an eave into this, you would allow them to come out 3ft more? 14 BAM6.8.92 Francis: No. Because then that would automatically make that extra space. It is not a loophole. It is a method of calculating. It is consistent for everything. So it really is irrelevant. Remo: You know why it isn't consistent? Because it doesn't achieve anything. What does it achieve? Look at that structure. Whether they enclose it 3ft in or right there on the facia, what benefit or what distraction to the City is it causing to have it either way? Francis: The City decided when it was going to start counting things. So when do you start counting things. And the County the UBC said the usable area under the roof or floor or both. What is usable? We figure 3ft isn't usable. That is how we came up with that. And that doesn't' matter. That is an architectural decision--how you want to use that 3ft. Whether you build it like this or build a building with 3ft eaves the whole way around it. Or if you have lots of floor area and you want to build 8ft or loft eaves and have a big high overhang like an old ranch style house. You can do that. But we count it. So that is your architectural choice. This was done before this code was written. Remo: That area was deducted and this area was given to them as a bonus. It is just not included. This was calculated that way. It was calculated to know how much the second duplex could have. Is that right? Ron: No. Remo: Why not? It would have to be. You would have to know the square footage. So in effect I feel that this should have been included in the FAR. So that this person would have gotten less. Ron: I think that's right. Remo: And that is my argument. I feel that they were cheated out of that aspect of it by the City not including the whole thing as the FAR. In effect you penalize them in this particular situation because you took their FAR and gave it to them. Francis: We didn't give anybody anything. Remo: No you didn't but your interpretation-- Ron: You allowed it to be out there so someone else could take it. MOTION Charlie: I would like to make a motion that we grant the variance for this request to start with. 15 BAM6. 8 . 92 Rick: I second this motion. Francis: That is the request to enclose the entire porch out to the edge of the deck. Remo: Right. Ron: That 66sgft. Ron: All I feel is that a hardship for exceeding overall FAR has not been made. Remo: I would have agreed with you had I not seen the situation. And I feel that this particular interpretation of the City which ordinarily would be in favor of the applicant has been a detriment to this applicant therefore creating a unique situation which allows me to grant them this variance. Ron: That is a satiric argument that I wholeheartedly disagree with. Roll call vote: Ron, no, Charlie, yes, Rick, yes, Anne, yes, Remo, yes. Remo: You do have that portion of the request granted. Myler: Question. I am assuming that we still have 28sgft to play with. Ron: Oh, no! I think you use up your 28sgft there. Minimum variance. Myler: The reason I ask is he said 66-- Remo: Yes. And actually--28 less. Ron: That is what they show here. That enclosure. I am sorry. You are right. It is 28 less. Remo: Yes. So we are really talking about 38 is the variance. Somewhere in there. Francis: With the intent being that this deck can be enclosed totally. Remo: Yes. That's right. Francis: To the edge of the facia. 16 BAM6. 8 . 92 Remo: But they have used up their maximum. They don't have any excess FAR. The 28 is usurped in this variance. So maybe we should modify that to give the correct square footage. Ron: Well, it was part of the motion. Anne: It was part of the motion was enclose the deck allowing 66sgft. Ron: I think we ought to change it. Remo: Yes. I do too. I don't know what the procedure is. But we want to change that. Colombo: If you are going to do that you are saying that you are looking at this from the situation of square footage addition rather unique contours of the building lines themselves. If I read your argument correctly you were saying you thought this area should justify the enclosure because of unique conditions of the overhang of the roof and the building lines and situation of the envelope. So basically it already is enclosed. That is there. So if that was your argument then the 28sgft really-- Remo: No. That is part of it. What I am willing to grant you is minimum variance. And I can only see it in this area and you have to use your existing excess FAR into this area. That was my intent. If I didn't express it, I am expressing it now. So that you don't have any--this is your maxed out FAR and we are giving you a variance on an additional 38sgft. Colombo: You say the 28sgft is dedicated to this area but we can enclose to the end of the eaves. Anne: Yes. Colombo: Let's just say we are dedicating our 28sgft to this area but we are allowed to close to the end of the eaves. Remo: Right. And I would also want to make sure that they don't have an additional 3ft eave even though it may be impractical in this case. I don't want them to add another 3ft out as a right. They would still have that right at this point? Krizmanich: Yes. You bet. Ron: My argument has been real clear from the beginning. I have nothing wrong with what you are trying to do here. I think it is a wonderful concept-a wonderful idea. I just don't want to exceed floor area ratio. I just don't want to do it without a hardship. 17 BAM6.8 .92 And I don't see one So it doesn't matter how many square foot you ask for. It is exceeding the FAR above what you are. Remo: And that is OK but you haven't presented an argument to me that would satisfy granting you a variance. Hanrahan: This is like my only outlet to try and gain a little bit more room for my family who is growing--for a husband that is coming into the family after the situation has landed in my lap. I agree that maybe I was naive. I don't think the letter was in full disclosure. I was unsuspectful of my neighbor. If you heard on the tape it was the day I was moving into the house. I am not asking the Board of Adjustment to remedy that problem for me. That is a problem that is only going to be remedied for me through the civil court at a lot of expense to me. What I am asking for is the minimal to make my living situation livable given the circumstances. And I would just ask for your consideration to the fact that there was a hardship. It was a unique situation. It was not my doing. And what I am asking for in this kitchen--if you would like to come to my house and see my one-person kitchen. It is like a galley on a boat. I am not going to get square footage back from this woman. Nobody is going to make her tear down 500sgft of her house. Remo: But this kitchen you are talking about was OK when you first bought it. Hanrahan: When I bought the house it was me--it was my children- -it was 5 years ago. They were babies. Now my children are growing. I am getting remarried. Before it was just--I was a single parent with these 2 . It is a one-person kitchen. If you would like to come see it I welcome you to come out. Remo: It is just that we can't anticipate what anybody' s future needs are going to be. You might have 2 more children and you will need more space. You could sell it tomorrow and we would have a situation where a single person might come in there and the City is stuck with--not stuck--but we have given you FAR outside of its maximum and the application of which we gave it to you, the conditions on which we gave you that variance don't exist anymore. Because now it is under the ownership of one person who lives there. So from my point of view I can't give you a variance based on your needs at any given time in your life. It is not the City's function to do that. Hanrahan: I realize that. But the situation--I believe this is a unique situation. You know we discussed it up to now. There is the fact that there is the mechanical room on the neighbor's side that has discounted me with a 170sgft because it now counts as FAR. And it didn't when I bought the house. So on all of these 18 BAM6. 8 .92 circumstances that we can't maybe agree on a little bit more square footage or at lease maybe that 28sgft for me to do a little bit of a kitchen-to me that is what the Board of Adjustment-is what everybody had told me this is what it is all about to come here. Remo: That' s why we gave you--that's why I gave you anyway a variance on that one portion. Francis: They can't be any clearer. What you are going to get now is filling in that deck and that is it. The motion was to grant the applicant's variance. Colombo: I thought the motion was for 66sgft. Francis: No. Charlie: I never did say the 66sgft. The 66sgft was mentioned by somebody else. So we settled that. So we can't go back on that one. Remo: You can go back. Charlie: No. As much as I would like her to get those 28sgft. Remo: You are the initiator. You are allowed to go back and rephrase the motion. Anne: And we would have to vote on it again. Remo: We would have to vote on it, yes. He would have to rephrase it the way he really wants it to read. Charlie: The minute I do that you will turn it down. So, no way. Remo: Well then rephrase it till it is right. Anne: Then I am afraid they won't get it at all. Something is better than nothing at this point. Meeting was adjourned. Time was 5:-� 5pm. Janice M. Carn6y�, Cite Deputy C erk 19 CITY OF ASPEN BOARD OF ADJUSTMENT DEVELOPMENT APPLICATION DATE May 6 19 92 CASE # APPLICANT Ruth Hanrahan PHONE 925-7435 MAILING ADDRESS 805 Bonita Drive, Aspen, CO 81611 OWNER Ruth Hanrahan PHONE 925-7435 MAILING ADDRESS 805 Bonita Drive, Aspen, CO 81611 Lot 23, West Aspen Addition, Filing No. 1 LOCATION OF PROPERTY 805 Bonita Drivo, Agpon , C'nlnrarin RIA11 (Street, Block Number and Lot: Number) COUNSEL WILL YOU BE REPRESENTED BY MMUlb? YES x _ NO Below, describe clearly the proposed variance, including all dimensions and justification for the variance. (Additional paper may be used if necessary. ) The building permit application and any other information you feel is pertinent should accompany this application, and will be made part of this case. Applicant's Signature ----------------------------------------------------------------- REASONS FOR DENIAL OF BUILDING PERMIT, BASED ON THE ASPEN CITY CODE, CHAPTER 24. AN OPINION CONCERNING THIS VARIANCE WILL BE PRESENTED TO THE BOARD BY THE ZONING DEPARTMENT STAFF. DATE PERMIT DENIED OFFICIAL DATE OF APPLICATION HEARING DATE t r MYLER, STULLER & SCHWARTZ ATTORNEYS AT LAW DAVID 1. MYLER 106 S. MILL STREET, SUITE 202 SANDRA M. STULLER ASPEN, COLORADO 81611 ALAN E. SCHWARTZ (303) 920-1018 FAX 920-4259 May 11 , 1992 Board of Adjustment City of Aspen 130 South Galena Aspen, CO 81611 RE: Application for Variance 805 Bonita Drive - Ruth Hanrahan , Owner Ladies and Gentlemen: On April 29 , 1992 , the Zoning Enforcement Officer rejected an application for a building permit to expand a residence owned by Ruth Hanrahan. The residence consists of the north half of a duplex located on Lot 23 , West Aspen Subdivision, Filing No . 1 , also known as 805 Bonita Drive ( "805 Bonita") . The south half of the duplex is referred to as t'803 Bonita" . A copy of the Building Permit Application, the plans for the expansion which accompanied that application , and Mr. Drueding' s rejection letter are attached. For the purpose of this application for a variance, we accept Mr . Drueding' s calculations regarding relevant floor area, which can be. summarized as follows: a. Allowable Floor Area for Lot 23 Based Upon Applicable Floor Area Ratio 5 , 028 sq. ft. b. E::isting Floor Area - 805 Bonita 1 , 840 .26 sq . ft. - 803 Bonita 3 _ - � " 3 , 159 . 63 sq . ft. ?t r 7� Total 4 , 999 .89 sq. ft. C . Increase in Floor Area of 805 Bonita if E:,,pansion Plans are Approved: 1 . Kitchen Area 73 .93 sq . ft. 2 . Bay Window 13 . 75 sq . ft. 3 . Deck Enclosure 66 .00 sq . ft. Total 153 . 68 sq. ft. MYLER, STULLER & SCHWARTZ Board of Adjustment City of Aspen May 11 , 1992 Page Two The applicant, Ruth Hanrahan, is requesting a variance from the FAR regulations in order to enclose two decks , expand her kitchen and create a second floor bay window as shown on the plans . The requested increase in floor area consists of 87 .68 sq. ft. of new space and 66 .00 sq . ft . of previously exempt overhangs . We believe that the expansion is quite unobtrusive . The addition and enclosures are not visible from Bonita Drive . They can be seen only from the golf course and by the neighbor to the north. At the same time , the remodeling will enhance the outward appearance of the duplex and greatly improve the liveability of Ruth' s dwelling. We believe that the minimal expansion which the granting of the variance will allow is generally consistent with the pur- poses , goals , objectives and policies of the Aspen Area Compre- hensive Plan and the Aspen Land Use Code and is the minimum variance required in order for Ruth to accomplish her objectives , which are reasonable . Furthermore , we believe that there are special circumstances involved in this case which are unique to the applicant and her residence . Those circumstances , which are outlined below, coupled with a literal enforcement of the FAR regulations , will operate to deprive Ruth of rights and oppor- tunities commonly enjoyed by other properties in the neighborhood and would thus cause her an unnecessary hardship. When the duplex was initially constructed, it contained 3 , 984 .9Q square feet of floor area . Since the allowable FAR was 5 , 028 square feet, the owners of each unit shared the right to expand the duplex by a total of 1 , 043 . 10 square feet. In April of 1987 , Robert and Judy Adams , the owners of 803 Bonita , applied for and ultimately obtained a permit for the renovation and expansion of her residence . The plans called for the addition of 872..99 square feet of floor area, thereby increasing the total of the duplex to 4 , 857 . 89 square feet. At the same time that Mr . and Mrs . Adams were seeking approval for their addition, Ruth was in the process of purchasing her home . Literally on the day that she was moving in, Ruth first learned of her neighbors plans . She was approached in her driveway by the Adams ' architect, given a brief verbal description of the expansion plans , and then asked to sign a letter addressed to the Building Department expressing no concern with those plans . No one bothered to explain to Ruth that the planned addition would utilize virtually all of the remaining floor area for both units . Without realizing the implications of the Adams ' addition on her rights to expand, Ruth signed the letter . ; e A MYLER, STULLER & SCHWARTZ Board of Adjustment City of Aspen May 11 , 1992 Page Three Subsequently, the renovation and expansion of 803 Bonita was undertaken and completed. Sometime thereafter, the regulations regarding floor area were amended so that a previously exempt mechanical room within the Adams unit, consisting of 208 square feet, was required to be counted as floor area, bringing the floor area for the purpose of FAR calculations to the present level of 5 , 065 .89 . It was only when Ruth began to consider making improvements to her home that she discovered what the maximum allowable floor area for the property was and the consequences of the Adams ' addition and the changes in regulations . We believe , and the evidence and circumstances seem to support, that Mr . and Mrs . Adams knew full well that they were utilizing all but 170 square feet of the remaining floor area allowed for the property and, more importantly, that they purposely concealed this fact from Ruth who was not, at the time , familiar with the floor area regulations . Had Ruth been properly advised, or if she had had the time to familiarize herself with the regulations , she would have objected to the addition. And for good reason. The legal right to expand is a valuable property interest which she would not have given up. In this case , Ruth has been deprived of the right to expand her home through no fault of her own. And, as a consequence, she is now having to seek a variance to undertake a relatively minor expansion which she would have had the right to complete if Mr. and Mrs . Adams hadn' t unlawfully converted that right to their own use . The amendment of City regulations only adds insult to the injury by increasing the effective size of the Adams ' addition and thereby eliminating previously available floor area, which would have been more than enough for Ruth' s proposed addition. Clearly, the circumstances in this case cry out for the type of relief which the Board of Adjustment is authorized to grant . We ask you to give this application favorable consideration and to approve the requested variance. Very truly yours , MYLER, STUL & SCHWA " By: David J . My r DJM:aja Enclosures 06/D4 May 6 , 1992 Board of Adjustment City of Aspen 130 South Galena Aspen, CO 81611 RE: Application for Variance 805 Bonita Drive - Ruth Hanrahan, Owner Ladies and Gentlemen: Please be advised that David J. Myler of Myler, Stuller & Schwartz is hereby authorized to represent me in connection with the above-referenced matter. Very truly yours, Ruth/Hanrahan 1� Aspen/Pit ing Office ,k 130 S thCa treet AspeC�o1Qra 1611 (303) 92 9 °, ax 20-5197 -50 April 29, 1992 Mr. Columbo Columbo Internatio.hal , 623 East Hopkins Aspen, CO 81611 Re: Building Permit #2-38, 805 Bonita Drive Dear Mr. Columbo: In regards to building permit #2-38, the information you supplied to me on April 17, 1992 indicates that the structure located at 805 Bonita Drive currently exceeds its allowable FAR (in the R-15 zone district) of 5,028 square feet, and any expansion would not be permitted. Therefore, permit #2-38 is rejected. You may apply to the Aspen Board of Adjustment for a variance. Please see me for an application if you wish to pursue a variance. Should you have any further questions, please do not hesitate to contact me at' 920-5090. Sincerely, ')jj-� William Drueding City Zoning Enforcement Officer cc: Diane Moore, City Planning Director Leslie Lamont, City Planner Francis Krizmanich, Zoning Deputy Director Dave Mylar recycledpaper