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HomeMy WebLinkAboutminutes.boa.19920903 CITY OF ASPEN BOARD OF ADJUSTMENT SEPTEMBER 3, 1992 4:00 P.M. IN THE BRIGHT AND SHINY JUST REFINISHED SECOND FLOOR MEETING ROOM A G E N D A I. CALL TO ORDER ROLL CALL II. MINUTES AUGUST 13, 1992 III. CASE #92-11 DAVID GARTH RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT AUGUST 13, 1992 Chairman Remo Lavagnino called meeting to order at 4: OOpm. Answering roll call were Bill Martin, Ron Erickson, Anne Austin- Clapper, Charlie Paterson and Remo Lavagnino. Rick Head was excused. MINUTES JULY 23, 1992 After fill-in-the-blanks: Anne made a motion to approve these minutes. Charlie seconded the motion with all in favor. CASE #92-10 ED GROSSE Remo read into record request for variance. (attached in record) Affidavit of posting was presented. (attached in record) There was discussion as to the posting as it was done. Decision was made to hear the case. Sven Alstrom, Architect for applicant: I do have photographs from the. prior application. This is a photograph from HPC which a zerox was included in your packet materials. These were taken yesterday and try to show the openness of the alley approach. These show the adjacent property's accessory buildings which encroach further into the alley than this does. This is a fairly built up alley. The neighbor to the east encroaches more than this does. Remo: There is an open space in there? Sven: There is. But other buildings actually encroach more in this particular alley. I worked for Bill Poss when Kermit ? property was done which is exactly on the property line at the other end of the alley. This particular alley has quite a few out- buildings that are more significant than this one. But this is one of the alleys and blocks that is ripe for the Cottage Infill Program. That is basically what this application is. Lastly the point Ed and I wanted to make to you was we were trying to design this with an encroachment for 2 reasons. One--just the financial and construction realities of trying to use what is there. Secondly HPC did feel that it is better for the building to step back from the alley rather than have a 2-story facade on BAM8 . 13 . 92 the alley. That was a criteria of property at 127 West Hallam and that out building essentially did the same thing. That was a completely new structure. I just want to point out to 114� you that an inerrant part of the HPC preference was to use the existing encroachment to provide something besides a vertical wall. Don Crum: I have been in Aspen since 1961. I own a house across the street from where Ed is planning the new addition, 105 East Hallam. And I just would like to say that since Ed has owned this piece of property it has been improved as witnessed by the placque he received today from HPC. It is a very nice piece of property and I am in favor of what he wants to do. Remo: We have no doubt that what he is trying to do is beneficial. We have different criteria by which we have to grant variances and they have to do with the whole different considerations. Two of them are practical difficulty and hardship--some kind of hardship or some kind of practical difficulty. And if the applicant can show that then he has good cause to be granted the variance. Dr. Johnson: The greatest physical difficulty in the alley right now is what the City put in--the power, TV boxes. They are constantly being knocked over in the winter time by the snow plows, constantly rammed into by service vehicles. Those are cable TV and telephone boxes all up and down the alley. Remo: Maybe those were put there because encroachment is in the way. Rob: When they undergrounded they put pedestals there. They gook utilities out of the air. Remo: I understand that. But why did they place them as they are? Rob: If they can't get easements on the properties then they have to go into the ROW there in the alley. Remo: All I am suggesting is that the encroachment further pushes it into that. Grosse: There are several factors that the Board should consider in their decision. The present encroachment albeit minor affords space for 2 cars. It is only 392 feet living space above. It is imperative that storage and closet space be integrated in the garage area. Without this valuable space a local employee would create clutter around the surrounding area. Equally important but of primary importance to HPC and P&Z is the breaking up of a sterile flat wall surface with the required setback. Lastly my contractor estimates the additional cost of 2 new walls 2 BAM8 . 13 .92 at $18, 000 to $22 , 000. I am not prepared to spend this much as the entire project becomes cost ineffective. I humbly ask that you consider the circumstances that I face. Remo: Unfortunately the Board can't consider financial considerations or aesthetics. HPC can do this but we are not given those guidelines to grant variances. However that doesn't preclude your not getting a variance. We just have different standards. Grosse: We have had unanimous support from HPC. Remo: I understand that. I have read the different letters. I would like to clarify something in the letters. It says--I think this is from Mr. Alstrom--that Planning & Zoning has a policy of commitment to support development of accessory dwelling units such as this one to provide more resident housing with the original townsite. Are you suggesting that they looked at this particular site? And they approved of this particular site and they approved of this particular project? Or are you talking about generalization? Sven: Yes. Remo: So it is not really applicable to this necessarily. Except that their tone is to-- Sven: No, it is applicable. The .quote out of the ordinance is the cottage infill program is meant to provide accessory dwelling within the original townsite. Remo: I understand that. But it is not specifically directed or addresses this particular problem with an encroachment involved. Anne: Except in this letter it says HPC is unanimously supportive of this. Remo: I am talking about Planning & Zoning. Sven: They were considering other technicalities. They were just saying that-- Remo: That they generally saying that they support--I understand. Sven: And it is your decision as to whether or not we affect other public interests. Anne: What is the size of this lot? 3 a BAM8 . 13 . 92 Grosse: 30 by 100. Remo: It is a non-conforming lot? Grosse: Yes. Ron: How old is the garage? Grosse: I was told that it was a ski shop back in the early 50s. Anne: In the letter it says 1960. Ron: So it is not a historical structure. Remo: No. It states that it is not. Charlie: My question is you mentioned something about a 2 car garage? Grosse: Yes. Charlie: How can you do that with a one door like that. You can't push cars sideways. Grosse: I put one in at an angle like that and then one right in front of it. Because it is not really a garage. Charlie: Because it is long. Anne: The structure--the garage on the alley side--the north side- -it is very low. Is that high enough to add the second story onto or are you going to be expanding-- Sven: We are between a rock and a hard place there. The Cottage Infill Program, although giving a break on FAR; still restricts the height of a 2 story accessory dwelling unit to 16ft. So this is the minimum height and the breaklines you see are just a result of that. So even though it is unusually low they are pretty much the same scale as other out buildings on the block. Anne: But in order to build the second story are you going to have to re-build that wall that is on the alley because it is so much lower? Sven: No. It happens to be the right height. Remo: And that is where you are going to put the flat? Sven: It is a lean-to type. It goes from 7 to 8 feet. 4 BAM8 . 13 .92 Remo: So the flat portion is going to be from the 7 foot level or the 8 foot level? Sven: From the 8. Remo: Which is at the top of the lean-to? Sven? Yes. Remo: So that is what she is asking. What happens to that north wall? You will have to build up to that 8 foot level? Since you are on a-- Sven: Yes. We will just add just a row of studs on that wall. The main cost is mainly foundations and utility walls and then it also may give him some problems with HPC to move the whole building closer to the main house. They supported us in a dimensional variation for separation between buildings to 3 feet. But we don't want to put it any closer. So that is the other reason we are asking for help on the encroachment is we don't want to go any closer to the existing house. Anne: The south wall--the wall between the 2--the garage and the structure looks like you have moved that because it is wider than what we have-- Sven: We didn't move it. We were just adding the concrete slab on grade there and leaving the existing foundation in place. We are just adding a slab on grade 3 feet wide where it says "work bench" . Anne: But then you do have a new wall there. Because you are moving that wall out. Sven: There is a new wall and a new foundation. Yes. Grosse: The purpose of that extension was to make room for the stairway and still retain the space in the garage. Sven: Roxanne didn't like the stairway on the outside of the building. That is another thing. Anne: When we look at this footprint though on here--am I looking at the existing structure or is it showing me where the new structure is going to be? Sven: There is a line that says "Line of existing garage"--what is on the print is the new structure. So there is a line on the north side of the stair-- 5 BAM8 . 13 . 92 There was then discussion over the plans. Remo: You are also increasing the south wall. Charlie: But that is inside his property line. Remo: I understand that but they are building a wall so I am suggesting-- Charlie: For the stairway, yes. Anne: But the other 3 walls technically stay there. Sven: Yes. We are really just adding onto the south to enclose the stairs. Originally we had an exterior stair and a balcony. The HPC felt that was inappropriate--that it looks more like a tenement stair. So we enclosed it. Ron: May I ask how this structure got originally built to be an encroachment structure in the first place? Grosse: That has to go back to the time they put the ski shop up. I wasn't the owner at that time. Ron: It was an existing structure that was there before the codes and before the City took over the alleys and before we even had any codes to cover any of this information. That might be your hardship right there as a pre-existing structure. I would like to get information as to why it is there. If it is not an historical structure--a lot of these accessory buildings in the west end are original structures that were built with the house and they were encroaching only because they were built before the alley was put in. Or before the City said what the ROW is going to be. Grosse: I couldn't answer that question. I don't know. The only information I can give you is what was told to me about a ski shop being there in the 50s and/or 60s. Ron: How long have you owned the house? Grosse: Since 182 . Bill: Did you make the present modifications to the front house? Grosse: Yes sir. In 182, 3 and 4 . Bill: At that time was it pointed out that this structure was in the public ROW? 6 BAM8 . 13 . 92 Grosse: No. It was not pointed out. Remo: When was the fence put in? Grosse: I would say 183. Remo: It was after you purchased it that you put in the fence? Grosse: Yes. Remo: Did you get an encroachment license then? Grosse: No, I did not. Sven: He did have approval for it. Grosse: Nobody ever asked me to record it. I didn't know--all I had to go on was the approval given to me by the City Council. Remo: But not in 1983 when you put it in. Grosse: No. Remo: Why did you put it in in 1983? Grosse: My tenant put it in to contain the dogs. Anne: I seem to recall this fence was built about 6 foot 5 and then they had you cut it back down. What was the basis there? Grosse: Drueding maintained that the fence impeded the site for traffic making a turn and so therefore it should come down. I didn't particularly like the height anyway. Anne: So the existing house is--in sections it looks like it is right up against the property line or very close to it. Grosse: Yes. Anne: Did you get some relief back then when you remodeled the house or were they not concerned with that at that time? Grosse: Well, I built the back bedroom if that is what you are referring to as relief as far as extending the square footage of the house. Ron: But looks like it is in conformance. Grosse: It is. 7 BAM8 . 13 . 92 Ron: The front part of the house has no side yard .and doesn't look it has any side yard setback or lot line setbacks. I am wondering if you came to get a building permit did you enlarge the exterior walls of the house? Grosse: No. Sven: This portion from here back it was an addition. Anne: But there was never a variance granted or-- MPT Grosse: When we put the boards back on we reduced the square footage by taking the enclosed parts and opening it up. I hated to give up any square foot of space that I had because the house is quite small. Anne: I think we should explain about the FAR. What is the current FAR for this lot and are we looking at additional FAR over and above what is allowed. Remo: That is not part of the variance request. Anne: But is this variance going to be put in their FAR over and above-- Remo: We are not giving them an FAR variance. We are giving them an encroachment variance. We don't care--unless it comes back to us that they have exceeded their FAR. Sven: The total FAR allowable is 2 ,400. And the total FAR with the proposed ADU is 1,889. Remo: Why do you think this is an opportune time to have them-- Rob Thomson, Engineering Dept: Because typically we do not enforce encroachments. There are encroachments like this all over the City of various types, shapes and sizes. What happens is because that is what we have been directed--the same as zoning enforced by complaint. Or when someone comes in for a Landuse Review which this is and so now we see through the survey that there is an encroachment. We feel that that is private use of the public ROW isn't proper use of the ROW. Remo: Well, it isn't in any of the cases. So why don't you get all of them? Thomson: We haven't been directed to go around and do that. 8 BAM8 . 13 . 92. Remo: Why this one? They are keeping the structure the way it is. If we deny them their variance that thing is going to stay there. Thomson: Let's say he wasn't doing anything to the house itself and he wanted to do something to the main house. We would still require them to license the building itself as an encroachment and it would stay the same. But because he is coming in and doing substantial improvements to the structure itself we feel that then it is time to move it out of the ROW. Remo: They are not expanding on the same encroachment. Thomson: No. Remo: He is not putting a second story on that same encroachment. He is stepping in from that. Thomson: That is correct. But he is not correcting the encroachment either. Remo: Well, he is not but neither is anybody else. And if we deny him this variance that encroachment is going to stay. I would think the Engineering Dept is concerned about the safety and welfare of the citizens, the 20 foot ROW, here you have a telephone pole coming out a foot beyond the encroachment. It seems to me you are even narrowing--the City government is narrowing what their minimum requirements themselves. Why do they allow that pole to even be there? Thomson: Because we didn't have an easement on the property to put it down. Remo: On what property? Thomson: On his property. Remo: But you had an easement within that--you could have put it before the garage. Right? Thomson: I wasn't there when they put the pole down. Remo: Well, I am just saying-- Thomson: When somebody comes in for a landuse review we also ask for pedestal and utility easements to get those out of the ROW. Remo: But the reason for getting them out of the ROW is for what purpose? Thomson: To maintain 20 foot clear access. 9 BAM8 . 13 . 92 Remo: So what I am saying again is that since it is prevalent all over town and since if we don't give them the variance'It is going to be there anyway, what are we gaining by correcting this one thing? That telephone pole is going to be out there anyway. I would agree with you if they were building on top of this and enhancing this encroachment. I wouldn't accept that at all. Thomson: But now the part of it is he will go in--they are building it and then there will never be an opportunity to get it removed. When he is done with the structure we will never go and say "OK we are coming through and clean everybody up. Move everything over" . Remo: Well, if you do it blanket with the whole City, I don't see why they--you take an individual out there and are using him as an example, then I don't think it is-- Thomson: We are not trying to make an example of it. That is our opportunity to get it corrected. And that is just the way we look at it. There were no further questions from the Board. Remo asked for public comment. Dr. and Mrs. Richard Johnson, 123 East Hallam: We are neighbors and we simply wanted to know what is the encroachment value of this? Is it a problem with the snow plow? Is it a problem with the pedestal standard? It is no problem for us at all. We want to know what does it cause the City? Is it a problem when the garbage trucks come through there? It is a small alley. But on the other hand I don't see that as that big an encroachment unless the City can tell us something which we did not know. I don't know their variance requirement. They are building a very nice addition with your Cottage Infill Program. And if this would be the same kind of look we are willing for it. I think that this is what we are looking for in the west end. Thomson: I can't say that if he moved it back over there is another foot more that we have that the utility that is there that we will come over and move it over another foot. There is no guarantee for that. Other than we look at 20 feet of public ROW and we try and keep that wherever we can. Remo: Do you always keep a trash can back in the alley? I know it is not going to stop an emergency vehicle. And neither are the utility poles. But it seems to me another kind of encroachment on the availability of space for just utility people to get in there. 10 BAM8 . 13 . 92 Grosse: There are times I put the trash can on the west. There is a pad there. How it got to the back I think I was cutting some of the high grass in the back. I can move them. Johnson: All of us have trash cans for the BFI. Remo: I understand that. But when it is in an alley and when he is encroaching on that alley, it further exacerbates the problem of getting people in there. Nobody is going to go out there and check you out at all. But it seems to me like it would be best to maybe put it out on trash day. Bill: There is room between the structure and the garage to move this 18 inches. In other words if the garage is moved over, they will be within the setback. Remo: That is right. Anne: Well, they won't be within the setback. They will be on their property line. They are still not within the setback. Sven: Well, there is no rear setback. Anne: Yes there is for garages. There is a 5 foot. It is not supposed to be right on the property line if somebody is building a new one. Charlie: If it is a new one, they have to set it back 5 feet. Bill: If this were moved, would it have to be moved 6.8 feet? Remo: That's right. Anne: We could grant them that variance too. We could say "Move it to the property line out of the encroachment". Bill: My point is the concern that the Engineer has that it is in the ROW. I agree with the City that there should be an effort made to get structures out of the ROW. Remo: So do you think if we don't grant this variance now do you think that is going to be alleviated? Bill: I don't know whether the gentleman is going to build it based on-- Remo: But they can't build it if we don't grant them the variance. Bill: We can deny them the variance and then he can come back and 11 BAM8 . 13 . 92 ask for a variance of so many feet into the property. Remo: We could do that now. We could modify the request so that we could grant them a variance. But the point is that they are not here for that. If he has to go back 6 feet he doesn't have any room on that lot to do anything as far as cottage infill is concerned. Anne: We could modify it. Bill: And give him a 3 foot into his property line. Eliminate the distance into the ROW and give him 3 feet or 2 feet--whatever is necessary for him to be able to build. That would solve the ROW problem. I agree with the ROW problem--that the encroachment into the ROW should be improved. We should correct it. Remo: But it won't be corrected if we deny him this variance and they don't come in for request. So are we alleviating the problem? Bill: No. But that is his problem. Remo: No. It is the City's problem. The problem is still going to be there. That is my concern. Anne: You don't know that though. They might say let us move this back to within the property line. We want a variance. And then there isn't a problem. Grosse: As I had pointed out in my comment, the cost of 2 new walls between $18, 000 and $22,000 plus what you just brought up would kill the whole project. So I wouldn't come back. That is not a threat. It is just that I can't do that. Sven: According to my zoning summary accessory buildings are not required to have a rear setback. The front and rear setbacks for the principal building do total the required setbacks. But the ADU according to the Cottage Infill in R-6 can be right on the property line. That is Ord. #60. Anne: It is not in R-6. I live in R-6 and I know that you have to have 5 feet from the alley--the setback when you are building a garage. Sven: We approach this as a Cottage Infill project. There is a City and P&Z and HPC public policy that says in the Cottage Infill Ordinance the purpose is to convert existing buildings into accessory dwelling units. It doesn't address the encroachment issue. But I am sure this is going to come up again. Remo: But you have to direct your comments to us in terms of why 12 BAM8 . 13 . 92 this would be a hardship or a practical difficulty for you that you haven't created yourself. Sven: It is a hardship because if you move it over we are at the limits of separation between buildings. There is also an ADU minimum size of 300sgft. And we are going to go below that so we are not going to have a legal ADU. Anne: Rob, to your knowledge on these accessory dwelling units- -there is one of these that I know of down the same alley--have none of the others encroached in the ROW? Thomson: I can't say. From the pictures I would have to say that they were. Whether they are licensed or not I don't know if Chuck researched that. Normally what would happen here is this would be before City Council. Then Council got tired of dealing with them and threw it back to you all. Quite frankly when we had other encroachments we went to them and they had the same discussions that you are having here. And they got tired of that and they threw them back on staff and so they set this new process and the review process came back to you. Anne: I know it used to come to us. I remember there was a request from the property at 5th and Hallam where they were remodeling and the garage was right on the alley. It was not encroaching. We denied their variance and made them tear it down because their addition was-- My concern is that we are going through all of these different cycles where- we were so strict at one point that we made them tear it down. Then HPC and City Council basically had a hand in it and they granted variances left and right. They weren't granting variances. They were allowing them to build within the setback left and right. So those people had the benefit of that window. Now all of a sudden it is coming back to us. Remo: No. It is not. I just remembered now. They don't even have to come to us for a 5 foot setback variance because this is on a HPC jurisdiction and they don't require any setbacks. Anne: But that is not a historic structure. Remo: It is in the historic district. And the only reason it is coming to us is just the encroachment. Not the property line. Thomson: Not the property line. We look at nothing inside the property line. Setbacks we do not deal with. 13 BAM8 . 13 . 92 Anne: So we could say we don't want this to be within the encroachment. Remo: All we care is whether we are going to give them the encroachment or not. Now personally I don't see any validity as far as safety or welfare or emergency vehicles going in with the encroachment on Garmish St. even though it is on City property. And if it would save them any money or something I can't see that that encroachment has anything to do with the reasons for eliminating--on Garmish. Whereas the other one that the reason given was a 20foot minimum ROW. Remo asked if there was any further comment from the public. There was none and he closed the public portion of the hearing. Anne: I guess I would like to know how many other structures are encroaching that have been given the ability to increase--to add on--what the Council ruled on these. Because based on our guidelines that we use I don't think this should encroach into the ROW. I can see your point on this one side. But to me looking at this structure first of all I don't see a whole lot worth saving there. I know there is some cost. That is not in our purview. I see the new building sitting right within the property line without encroaching into the ROW being very feasible and I don't see why they couldn't do that. So I am leaning towards not granting the variance. I need to hear something stronger from one of you to convince me otherwise. Remo: I would have thought that maybe the structure is going to stay there anyway. Anne: I would say that is fine. Remo: But then what are we alleviating? Anne: What is his given right to increase his square footage and do all of this extra stuff--just the fact that he is an historic structure? Remo: They give a lot of extra bonus from HPC. Anne: But it is a very small lot. He bought it knowing he had a small lot. At the time he bought it he wasn't allowed to put any more there. Bill: Why is HPC dealing with this in the first place? Ron: Because it is within the historical overlay and the Cottage Infill Program is their purview. They have responsibility to that. 14 BAM8 . 13 . 92 Anne: My other concern is that all of a sudden this density that we have been trying to reduce in the west end--the big buildings and volume and everything--you look down this particular alley, you have got quite a few other structures--the one directly across the alley and actually 2 owners on that structure across the alley, sort of divided, it is one building on 2 lots. I can see them coming next and wanting to do a 2 story structure. I can just see this whole alley getting boxed in. Remo: I would agree except this whole thing is the Cottage Infill which Council and Planning & Zoning have directed that they want. Ron: You can say therefore that in keeping with the spirit of the code--and in keeping with the desires of the community as a whole. We are going to run into a lot of cases with the Cottage Infill Program. We ran into one on the ? cottage over on the corner of Original St and Hyman. We had all the problems with how we were going to put a fence so they don't--and that structure, the garage is not a historical structure. But it became part of the Cottage Infill Program and as such we had to deal with that criteria whether it made sense or not. I think that if we want the Cottage Infill Program to succeed and work, these are the places where we are going to see it working. Anne: Are these garages required to remain garages once we grant these variances? Ron: No. Anne: Once City Council has allowed someone to do a Cottage Infill, do we know that those garages are remaining garages? Ron: Then they get restricted. Thomson: You don't know that if the City doesn't they are going to turn that into one anyway. r Sven: You have to deal with parking requirements. Ron: They are deed restricted so-- Remo: Well if he is going to put a closet downstairs he is going to get rid of at least one more space for a car. Ron: Interesting case. I am going to be slightly facetious here. If I were on HPC I would consider this pre-existing structure from our new baroque period--or neo renascene period. As such HPC would come into responsibility for e determining what we can do with this structure. I think as a pre-existing structure encroaching on public ROW it has a right to exist. It is going to continue to 15 �'°°v►c-Q-� BAM8 . 13 . 92 exist. We can't get rid of it. I think that the addition they are trying to make on this is one that is in conformance with the code, setbacks etc. Therefore I would approve that:' I think additionally that this property owner- -if we don't grant the variance will be denied a right that is currently enjoyed by his neighbors who currently encroach to a greater degree than he does if you want to consider encroachment a right. I think that since the Cottage Infill Program is being pushed by Council, HPC, P&Z and a lot of other people in town they are in keeping with the spirit of the code and therefore we have every right to grant the variance in that regard. I think the utility pole and the boxes that exist in some of these alleyways are in greater violation than the structures that encroach. I would like to tie a variance into the removal of that box to the west side of the structure so that it is not encroaching any more than the structure is at this point. Remo: I don't' know if we can do that. Anne: That is the City's. Ron: If we put it on the property owner's property and he agrees to allow us to do that-- Anne: We can't require-- Ron: I am not requiring the owner to do it. I am going to say "As a condition of the variance I am going to ask the property owner to agree to allow that box to be moved" . Not at his cost. If the City doesn't want to do it then what I am saying is we should grant the variance in any case since the City is encroaching more than the homeowner or the applicant. Thomson: He doesn't have to agree. They can come in and move it. Ron: But not onto his property. Thomson: No. Ron: It is a really simple little easement to grant to move that box right around to the left side right next to where the garbage can is supposed to be. I think that the utilities are encroaching more than the applicant is. And therefore I think that is a bigger danger than the current encroaching. So I would grant the variance since I think it is a minimal variance. But I would do it with the condition that the applicant would allow that box to be moved around the corner to the west side onto his property so it doesn't encroach any more than his structure does. 16 BAM8 . 13 . 92 Remo: You said something about their right by code. They don't have any right by code. Ron: I didn't say he had right by code. I said it was in the spirit of the code. Remo: You did say we were infringing on a right that they would have by code if the encroachment wasn't there. Ron: I said "Other property owners have greater encroachments than they have so the other property owners appear to be enjoying a greater property right than the applicant. I think that the additions that they are making are being made observing the current code. The addition isn't in the encroachment at all. Remo: Yes it is. It is not by code. It is by HPC because they are on the property line. • If it were by code they would have to be back 5 feet. Ron: As part of the Infill Program. That is what I am talking about. As part of the HPC Infill Program. It is their set of rules--not our set of rules. Remo: Outside of HPC the Cottage Infill still has to require the 5 foot setback. You are just talking about HPC having control setback requirements. If they are outside of HPC's jurisdiction Cottage Infill still applies. But they have to meet code. Ron: Isn't this under HPC? Remo: This is under HPC. It doesn't require any kind of consideration for setbacks. So when you say by code, it is not by code. It is by HPC discretion. Ron: It would be the Cottage Infill Ordinance that governs HPC's actions. It is law. Whether it is the Landuse Code or an Ordinance, it is law. They are conforming to the law in the addition that they are adding. What I am trying to get across it conforms in as many ways as possible to the existing law with this addition without removing the original structure. Thomson: Related to the utility--it is nice if we can get utility pedestal easements on property to get those out of there. But if need be we can move that around the corner. It would still be in the ROW and not be on his property. Remo: What he is saying is that the condition would be that the owner would have to put it on his property. 17 BAM8 . 13 . 92 Ron: No. Not "have" to put it on--to "allow" it. Thomson: To do that you would have to do a whole pedestal easement and there just isn't room to do that. If we were to force utilities to clean up the alley, not only this pedestal but also the other ones further down that . people keep hitting there is room to move it around here. It is not on his property and it is out of the way. Remo: Would the Engineering Dept like that? Thomson: Well--yes but we would have to go to the utilities and they would say they have to have money to do it. It would screw the whole--just to get them underground was a major effort. Ron: What you are saying is that the caveat that I was trying to add to my ? makes any difference. Thomson: And also if it does get moved off the fact of the matter is you may have a foot ? and that pedestal may still be sitting there. Bill: I don't quite agree. Because I think the City starts sponsoring programs and they begin to violate their own rules. If this was a request to add this amount of square footage to the house, we wouldn't even be discussing it. We would turn it down. Remo: No. They would be allowed because they have their FAR. We wouldn't hear it because they would be allowed to do it. Bill: Wouldn't they have to move that garage? Remo: No. Not at all. That is the whole thing is that the problem is and with the garage when you add FAR to the house the problem is when you start embellishing something--I think that was Rob's point is that once they start putting the second story on it is a little more difficult to have them then say "We want you back from that encroachment" . I really feel like they can put a wall underneath the second story if the City were adamant about having them remove it, they can just say "that thing underneath was a garage and just move that wall back" . I don't see where that would be a problem. In this particular case I don't see anything being accomplished because that thing is going to stay there. They are not going to take that down. Bill: Isn't there a law that says that you will have to remove the property that is in an encroachment? 18 BAM8 . 13 . 92 Ron: Nope. Bill: Well, I have an encroachment on my house. But if I were to modify my house I am going to have to move the house. Thomson: It would be the same if you were to come for your parking area and that was encroaching. When you were talking about raising your--putting a basement underneath there--we would go through-- it would be the same thing as trying to correct the encroachment. Remo: That is because it is your house. But this is a garage and not the house. So when they add things onto the house--the house doesn't have the encroachment on the City property. Anne: But why does the garage have the right? Thomson: What would happen is if it still came through a Landuse Review and the Planning turned it over to the Engineering, what we would be saying right now is That needs to be licensed just as the fence would be" . We would not approve it unless that was licensed. So then what happens is we go through and we get the license and it goes in and then we have an agreement. They have to have insurance for it and if then he wanted to come back and do the ADU it would be brought back here again. Because then we are saying "You are making a substantial improvement to--it is easier to move it during those improvements than it is to come on down the road after those improvements are made. Remo: But the improvement isn't in the encroachment. That is the whole thing. Thomson: But with this we are looking at the overall structure. Remo: But they can improve it internally. Thomson: Right. Remo: They could really do something wonderful in there and it would be very difficult for you to deny them an encroachment license when . they come to you and say "Look we have got all this equipment in here. It is permanent. Whatever it is" I am trying to satisfy the argument that you are making but I see-- Thomson: The same thing happened over on East Cooper. Somebody came in and they had a garage that was just sitting there and it was 6 feet into the ROW. And that went to Council but they were going in and turning it into an accessory dwelling unit. And we had the same argument there. We were saying that they were improving the condition of it and turning it into living quarters. 19 BAM8 . 13 . 92 Here is somebody living in the public ROW. Anne: And did they give it to them? Thomson: Yes. That was on the historic list. Bill: That is where I disagree. Anne: I disagree with that. At what point do you stop it? Remo: This was in interior change. This was not an exterior change. It was already there. All they changed was the use inside. So no one would have really known about it. That is what I am saying about this. Thomson: Exactly. And that is what I am saying. They are like this all over town. And we are not directed to go through and license every encroachment until the opportunity comes through like this. One other thing I would like to add is that these neighbors are- -everybody is happy in this area where we get a lot of conditions where people aren't. "I can't back my car up" etc. I think overall what the Council needed to look at and possibly you do too in the future these are going to come back to you as what you picture as the town as a whole. Do you want to see these alleys like this? I don't think, the nature of the town, you are going to want to see a black and white straight strip thing. This is not the last thing in this alley block to clean it up and give everybody clear access. Remo: We can't look at it the way you look at it. Thomson: We are trying to be so black that we just look between property line to property line. But we are here to present--we have to do it by code. That is our position, our job. It is kind of up to you to decide-- Remo: Well, you can either deny or allow. You are telling me that you are going to deny every one that comes to you now? Thomson: If they want to embellish it in some way. Bill: If they want to clean up the alleys, they have to do it. Thomson: Somewhere--it is the magnitude--is a foot more, is 3 inches too much? Anne: It is interesting. I can see the houses that are on the register now that have the public right to do the Cottage Infill and expand and everything. And then I can see someone with a 50s house that all of a sudden says "Hey, wait a minute, I don't have- Ron: Yes they do. If it is in the historical overlay they have 20 BAM8 . 13 . 92 every right. They don't' have to have a historically designated structure. Anne: Every house in the west end can come and say "I want to do an accessory dwelling unit" . Ron: Sure. And it can be the biggest piece of garbage built in 1965. Absolutely. Charlie: It is very simple. The whole thing boils down to this. Mr. Grosse will do nothing if we don't grant him the variance. And you will still have an encroachment because he wants to keep the garage. Now if you want to agree with City Council and the wishes of the citizens and have an infill program we should grant this variance. Remo: There are specific guidelines that we have to grant variances. And I want you to address them. I am in full agreement with you, Charlie. Here are the three things and you haven't addressed those. Charlie: I told you that I agree to grant this variance and that is wh4base my agreement on. There is a special circumstance of condition that the denial would cause the applicant unnecessary hardship or practical difficulty to build the infill on the Infill Program and their requested encroachment is the minimum encroachment possible. I don't have to tell you that. That is what I agree with. Those are the points I base my decision on. You are eitherAgrant it and agree with the Infill Program or you are going to deny it and it will stay there. Remo: Unfortunately the Infill Program isn't within our purview here. That is unfortunate. So we have to grant this variance on a different set of criteria. I want to see the Infill Program work too. But that is not why I am going to grant the variance. I am going to grant it because of other considerations that direct themselves towards these guidelines which allow us to grant or deny variances. I would grant this variance. And the reason for it is that I don't feel like the City will accomplish what they want to accomplish on this particular case. And that is to get rid of that structure in the first place. My feeling is that the City should take it upon themselves to do this and blanket the whole City with a more specific. ordinance that just says "You want to do anything with that you get rid of that problem" . This is the gray area that we have to work within. And I think that by not granting this variance the problem is still going to exist. It is not going to be a 20 foot ROW. That telephone utility pole is going to be there 21 BAM8 . 13 . 92 and nothing will have been accomplished. In the meantime as an aside and not a reason for granting a variance we would be losing that Cottage Infill Program which the City and the Planning & Zoning Commission desperately wants to achieve. so in this particular case I can see no alleviation of a problem by not granting this variance. I can't see anyone taking down that structure. Why would they take down that structure? Anne: You don't know that. He can move it back. He has got room to bring it back 1. 8 feet. That is what Bill was pointing out. He still has room to bring it back in here. Bill: I will tell you a reason. This gentleman may sell this house next month. Then somebody else comes in here and he may have to remove it. Anne: To me this structure isn't significant enough to warrant saving it where it is. If we are trying to get rid of these encroachments, let' s get them to move it back if they want, to do the addition. If they don't, fine. They can leave it the way it is. The next owner--we have gone through this so many times. We grant a variance and then they sell it to somebody else. I am not saying that Mr. Grosse is going to do that. I think we have to look at it as "John Doe" . If we give this variance to John Doe he is gaining a tremendous amount in every respect. He is planning on keeping his family in there. . His family might be a City employee. The next person that comes along unless somebody is monitoring that constantly, they don't know that their house guests aren't living in there. There are so many different obstacles to make them conform. This whole property is so non-conforming. If it was a 9, OOOsgft property and there was a tenant space on it I might look at it a little differently. But we are just boxing in every little lot so that there is no open space left. MOTION Ron: I make a motion that we approve request for a variance in Case #92-10. Charlie seconded the motion. Roll call vote: Bill, no, Ron, yes, Anne, no, Charlie, yes, Remo, yes. Variance denied. Meeting was adjourned. Time was 5: 25pm. r U Jan ce M. Carney, City Deput Clerk 22