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HomeMy WebLinkAbout05181995 ZBA Minutes• ZONING BOARD OF ADNSTMENT MINUTES FROM 5/18/95 REGULAR SESSION The Zoning Board of Adjustment came to order at 7:35 p.m. with the following members present: Vice Chairman Frank Billings, Regular Members Stephen Masera and Rob Peterson and Alternate Members Arden Morley, Victor Hansen and Melinda Snell. Members absent were Sue Ponetto, Lee Huber and Chairman Sterling Minor. Also present from the City were Dennis Holm, Chief Building Official and Cathleen King, Building Secretary. Members introduced themselves and procedures were explained. Notices were read and participants were sworn in. Rob Peterson made a motion to approve the notices as posted. Arden Morley seconded the motion. Voting was unanimous. Voting members were Frank Billings, Arden Morley, Rob Peterson, Victor Hansen, Stephen Masera and Melinda Snell. The first case on the Docket was 95-04 concerning property located at 5324-5320 Kirby, Lots 8,9,10, Block 1, Krenzler Court Addition. Request was for interpretation of the findings of the Chief Building Official concerning his determination of Ordinance 1493, Appendix A Zoning • Ordinance, Article 8, Additional Regulations, Section 8-103, Transition Features. Stewart Baker, owner of 5320 Kirby, explained that he recently received a telephone call, followed by a letter from Mr. Holm, Chief Building Oi~icial of the City of West University Place, requiring him to erect an eight foot opaque fence on the west boundary, in accordance with Mr. Holm's interpretation of the current code. This would require him to construct an eight- foot fence back-to-back with the existing eight-foot fences of his residential neighbors. Mr. Baker read the relevant section of the code: (7) Transition features. If any part of the building site lies within twenty (20) feet of any residential district, there must be an opaque fence or wall eight (8) feet in height located on the building site along and parallel to the boundary between the building site and the residential district. All such fences and walls, except light fences, shall be located outside of any easement for underground utilities and as close as practicable to the boundary. Light fences shall be located along the boundary. Unless both sides of the fence are finished, the finished side must face the residential district. Mr. Baker explained, when he purchased this property in 1978, it had recently been developed in accordance with the current code requirements. A six foot board fence had been built along the west property line. At that time, the lots to the west of this line were vacant. When homes were built on those lots in the late 1980's, the builders constructed eight-foot board fences on their side of his west property line. He stated the homebuilders also piled fill dirt along this property line, for what he believed was for the purpose of improving drainage on those residential lots. This • dirt, some sixteen to eighteen inches high at the highest point, pressed against his existing fence contributing to its deterioration. He left sections of his failing 6' fence in place to act as a retaining wall against this fill dirt until May, 1994, when he received a request from Mr. Holm to ~ replace this fence. Stewart Baker explained it is impractical to erect an eight-foot high board fence on an eroding slope, as the incipient inclination of his neighbor's fence indicated. He stated this impracticality would be magnified in any attempt to build an eight-foot board fence that was also attempting to act as a retaining wall. Mr. Baker stated he would like the ordinance to be interpreted to require one fence only. When his neighbors' fences failed, he would replace them with conforming fences, which he thought was his obligation under the code. He also explained since the erosion, a drainage problem was created by the homebuilders, and not his neighbors nor himself. He would cooperate with his neighbors in creating a sloped transition that would minimize damage to both parties. Frank Billings stated he believed the ordinance required the fence be located on the building site. Rob Peterson asked where the fence was in relation to the boundary line. Mr. Baker stated he believed it was within one (1) foot of the boundary line. Melinda Snell asked how Mr. Baker proposed to make the fence opaque. Mr. Baker replied that he could put the boards on his side or he could put narrow strips covering • the cracks of his residential neighbors fence. No conespondence was received in favor of the application. Dennis Holm, Chief Building Official, gave the City's point of view. In Ordinance 1493, Appendix A Zoning Ordinance, Article 8. Additional Regulations, Section 8-103. Transition Features: (a) When Required. Each building site must have the transition features required by this section if it lies directly across the street from, or within 20 feet of, another building site restricted by this ordinance to a use less intensive than the actual use of the first building site. Intensities of uses are ranked in the following order. Beginning with the least intensive use: (1) single-family (detached) use, (2) single-family (attached) use, (3) other residential use, (4) any other use. (b) Fence Or Wall. If the building site lies within 20 feet of the less-intensive use, there must be an opaque fence or wall eight feet in height separating the more-intensive activities on the building site from the less-intensive use. The side of the fence or wall facing the less- intensive use must be finished. Mr. Holm explained, the west property line for the commercial property (most intensive use) located at 5314-5328 Kirby abuts the east property line of the residential property (least intensive use) at 2616-2620 Albans on the south and 2617 Wroxton on the north. At one time a "Transition Feature", an opaque fence, was on the commercial property site at 5314-5328 Kirby. After the fence started coming apart, it was removed by the owner of the commercial property Mr. Stewart Baker. A homeowner of property located to the west of the strip center asked, if a • transition feature, such as a fence, between the most intensive commercial property use, owned by Mr. Baker, and the least intensive single-family (detached) use was required to be constructed • on the commercial property? As determined from the Zoning Ordinance, the commercial property is to provide the transition feature. Mr. Holm stated he had discussed with Mr. Baker the transition feature question at length. The least intensive single-family use property owners have a fence on their property; therefore, Mr. Baker contends, since a fence is there, he does not need to construct a fence or wall as called for by this ordinance. Mr. Holm stated it was his determination, Section 8-103 of the Zoning Ordinance requires a transition feature on the building site of the strip center, the more intensive use, located at 5314-5328 Kirby, even if the less intensive use property has a fence. Frank Billings asked if there was anything in the ordinance covering prior non-conformities as far as this type of requirement is concerned? Mr. Holm explained when something is removed for a hundred and eighty days it loses prior non-confornuty status. Terry Day- Resident of 2616 Albans explained he is a resident who resides directly behind the strip shopping center. He stated the fence has been down since last summer and he felt the traflic and noise from the strip center makes enjoying his back yard impossible. He stated that it was not a problem with him if the boards of the fence were to just face the commercial property and not his residential side. Mr. Day stated he was not in favor of allowing Mr. Baker to just cover the cracks in the fence rather than to build a new one. • Another conespondence was received in opposition from Terry Day. Stephen Masera made a motion to close the evidentiary portion of the hearing. This motion was seconded by Rob Peterson. Voting was unanimous. Members voting were Frank Billings, Arden Morley, Rob Peterson, Victor Hansen, Stephen Masera and Melinda Snell. The next item on the agenda was Docket No. 95-05, concerning property located at 2635 Sunset, Lot 10, Block 3, Evanston Addition. A request for a variance to allow a structure (residence) to encroach in a ten (10) foot utility easement. Notices were read and participants were sworn in. Rob Peterson made a motion to approve the notices as posted. Stephen Masera seconded the motion. Voting was unanimous. Voting members were Frank Billings, Stephen Masera, Arden Morley, Rob Peterson, Victor Hansen and Melinda Snell. Ken Kuffner, owner of 2631 Sunset presented his request. Also present was his wife Sandra Kuffner, Ana Bhuyan and Paul Cones of Able Permits and B. Beeson the builder for the project. Ken Kuffner explained that he wanted to build a house on his property located at 2635 Sunset. This property is in the Evanston Addition which was platted in 1938. A 10' easement straddles • the west property line and a 5' easement parallels the south property line. The plat depicts the easement but does not identify its use or contain dedicatory language. A separate dedicatory document filed contemporaneously dedicates all streets, alleys, and easements for publ~c use. ~ Shortly thereafter restrictive covenants were filed covering Evanston Addition, which specifically identify the easements as being limited to utility use. The restrictive covenants lapsed in 1970. The 10' easement was used to locate the primary water lines for Evanston addition. This line is no longer in use as the City has relocated all water lines to the street and the city has no plans for future use. Mr. Kuffner explained he would like the Board to interpret whether this easement is either "common-use area" or a"local service easement." The Kuffners believe the conect interpretation is the easement is a"local service easement." If the easement is interpreted to be "common-use area, " then it is excluded from the building site for the purposes of deternuning applicable setbacks. In effect, the 60' by 105' lot would be reduced to an approximately 55' by 100' lot (since the interpretation would apply to both easements). If the easement were interpreted to be a"local service easement", the platted property lines would be used for set back purposes and the easement area could be used for allowed setback, open, and pervious area. No encroachment into the easement would be allowed without permission of the city and the execution of the city standard form encroachment agreement. • Mr. Kuffner explained the lot was currently vacant. The architect saw the dotted line and, therefore, applied for an acquiescence with the city. When the situations were explained to Jim Dougherty, the Crty Attorney, he recommended they could not consider this easement to be a utility easement because all the plat showed was a dotted line. Mr. Dougherty interpreted the documents to state everything that is not restricted to a utility is public. Mr. Dougherty is interpreting this under the new ordinance to require these easements become common-use easements. This interpretation would affect twelve residents that have the easement for the north- south pipeline that is no longer used. Mr. Kuffner stated he wanted the city's pernvssion to put some of his new building, specifically the driveway, part of the garage and part of the porte cochere in the easement. He and his wife were told, if it was a public use area, they could not do anything there and if it was a local service easement, they were not allowed to encroach into that easement without permission from the city. Mr. Kuffner is requesting the Board confirm for them and the other twelve properties involved this dotted line on the plat does, in fact, refer to a utility easement, or a local service easement. He asked that the Board not interpret the ordinance definitions in the same strain and unreasonable way the City Attorney has done. Melinda Snell stated they are not only asking this be interpreted as a local service easement but they also be allowed to encroach into that easement. Mr. Kuffner agreed and stated what he would really want is for the Board to say it is not an • easement any more because it has been abandoned. Melmda Snell asked if anyone looked into who the authonty was to grant abandonment of an ~ easement. Mr. Kuffner stated that he did not. Peggy Canon, 2703 Sunset stated that she was in favor of the application. Dawn Jordan, 2704 Nottingham stated she was there representing herself and her neighbor, Nash D'amico, 2636 Nottingham. She was in favor of at least having a service easement established and she would like to find out what needed to be done to abolish this utility easement all together. Paul Cones explained he is from Able Permits a business that is in the field of helping property owners when encroachments occur. He stated the application was submitted by the Kuffiners was to a11ow a new structure to be built according to the plans they have proposed and to obtain an acquiescence to encroachment vs. an abandonment of the easement. He explained the Kuffr-ers were looking for relief from the Board so as they will be able to make the best use of their property. Mr. Cones stated they had already approached Southwestern Bell, Entex and H L& P and were given consent to encroach into this area. These utility companies have interpreted this easement as a public utility easement. Frank Billings stated that what he understands here is that this is an easement that has been • abandoned and there is a procedure where by the city can abandon this easement, sell it or do whatever the requirements are, but he is not sure what those procedures are. He stated that he is not sure the Zorung Board of Ad~ustments would be the one to handle ttus. No correspondence was received in favor of the application. Dennis Holm, Chief Building Official gave the City's point of view. Originally a request for an acquiescence to encroachment was filed by Mr. and Mrs. Kuffner; however, after checking into the subdivision records the type of easement became a question. Mr. Jim Dougherty, City Attorney, responded to Mr. Ed Menville, Director of Public Works, by memorandum on April 24, 1995. In Mr. Dougherty's memorandum the following is written: "The easement appears to have been dedicated for very broad "public" purposes (apparently a broader use than just utilities), and it appears to be part of a network of public easements in the subdivision." Mr. Dougherty is making reference to the definition of "common-use area" as found in the Zoning Ordinance No. 1493.. Mr. Holm stated the type of easement is critical in that: if it is a"common-use area" the setback for the new structure will begin at the edge of said "common-use area"; however, no encroachment into the service easement will be allowed. This determination could be used for the other twelve (12) lots having the same easement involvement. Mr. Holm stated Mr. Menville does not feel comfortable with an acquiescence to encroachment. Instead, he is more in favor of an abandonment. This would have to be handled by City Council. • Mr. Holm stated the reason he felt they needed to go in front of the Zoning Board of ~ Adjustments was to determine what type of easement this was. No conespondence was received in opposition of the application. Rob Peterson made a motion to close the evidentiary portion of the hearing. This motion was seconded by Stephen Masera. Voting was unanimous. Members voting were Frank Billing, Stephen Masera, Arden Morley, Victor Hansen, Rob Peterson and Melinda Snell. During the discussion of Docket No. 95-04, Frank Billings explained he felt the Zoning Ordinance clearly stated the fence had to be on the building site and now the original fence has been torn down, it is no longer a non- conforming issue, therefore, it has to conform to the cunent ordinance. Melinda Snell asked which way the boards of the fence must face, if there is a separate fence? Mr. Baker explained what the ordinance was requesting would be very difficult. Stephen Masera suggested the Board could put a restriction on the variance stating that if the residential fence were ever removed, then the commercial fence would have to be finished on the residential side. Stephen Masera made a motion to deny the application with the exception that the boards of the • fence do not have to face the residential side unless the residential fence is removed. If this occurs then the commercial fence will have to be finished on the residential side. This motion was seconded by Melinda Snell. Stephen Masera, Rob Peterson, Frank Billings and Melinda Snell voted in favor. Victor Hansen voted to oppose. During the discussion of Docket No. 95-OS , Frank Billings explained the Board is to decide whether the easement in question is a"common use area" or a"local service area" and if deternuned to be a"local service area", then the applicants are requesting a variance to encroach. The term "common-use area" includes areas within street areas, easements (other than local- service easements) and other similaz common-use areas. A"local-service easement" is an easement which: (i) is designed or intended to provide utility service, secondary access (but not primary access), maintenance or similar supporting service to the parcel where it lies or to an adjacent parcel; and (ii) as a practical matter, allows the fee-simple owner of the parcel to enjoy substantial use of the easement area. A flood control easement is a common-use area not a local service easement. Rob Peterson made a motion to interpret this easement to be a local service easement. This motion was seconded by Victor Hansen. Voting was unanimous. Members voting were Frank Billings, Stephen Masera, Rob Peterson, Victor Hansen and Melinda Snell. Melinda Snell stated she did not feel that the Zoning Board of Adjustments could grant a • variance to allow the applicants to encroach into a utility easement. • Stephen Masera made a motion to deny the variance request to encroach 10' into the utility easement. This motion was seconded by Rob Peterson. Voting was unanimous. Members voting were Frank Billings, Stephen Masera, Rob Peterson, Victor Hansen and Melinda Snell. Frank Billings made a motion to approve the minutes from the Apri120, 1995 meeting with no changes. Stephen Masera seconded the motion. Voting was unanimous. Rob Peterson made a motion to adjourn the meeting. This motion was seconded by Stephen Masera. Voting was unanimous. The meeting adjourned at 9:40 p.m. CHAIRMAN • ATTEST: SECRETARY ~