HomeMy WebLinkAbout04181996 ZBA Minutes.~
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~ ZONING BOARD OF ADJUSTMENT
MINUTES FROM APRIL 18, 1996
DISCUSSION
The Zoning Board of Adjustment came to order a 7:30 p.m. with following
members present: Chairman Sterling Minor and Alternate Ty Hutchins. Absent
were Sue Porretto, Melinda Snell, Lee Huber, Michael Neal, Frank Billings, and
Amy Chaisson Selig. Present from the City was Chief Building Official Dennis
Holm and City Attorney James Dougherty. Also in attendance was Zoning and
Planning Member Les Albin.
Hearing of Residents: None present
Chairman Sterling Minor explained second item on the agenda is a discussion
concerning the specific issue of prior existing conditions, and of properties
causing some problems and the status of front setbacks related to new more
accurate surveys due to more recent technological advancements as opposed to
a policy decision.
City Attorney James Dougherty presented drawings illustrating two specific
problems located on properties at Community and Sunset.
• Mr. Dougherty referred to page 31 of Zoning Ordinance 1493. He explained the
basic idea behind non-conformance is you first acquire prior non-conforming
status and second you must not have lost it In other words to claim the speciat
status, its like a conditional privilege to continue violating an ordinance. A type
of exemption from the ordinance, to get this special status it is important you
acquire in the first place and not have lost it
Mr. Dougherty referred to the rules for acquisition of prior non-conformance
(PNC) in Section 12-102 of the Zoning Ordinance and the general ~ule is in
paragraph A. He explained this ordinance more than most city zoning ordinances
indicates you can have prior non-conformance for a number of items. First, it
must be constructed or established in conformance with the zoning ordinance
applicable in effect at the time, and after construction it became non-conforming
solely because a new Zoning Ordinance was adopted. The real key it prior. It
had to prior to the ordinance or amendment was adopted. It only became illegal
because after construction the ordinance changed. A pnc status may also be lost
if a building is enlarged. The basic idea about pnc status is items are allowed to
continue, but the pnc status is conditional. If you build a new principal building,
you wipe the slate clean and you then build in compliance. An example would be
a garage built up to the property line and had prior non-conformance, but has
• since burned down cannot be built in the same location. The new garage must
be built in compliance with the current zoning ordinance.
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• Mr. Dougherty explained the property on Sunset the degree of non-conformity
has increased. If you have a setback problem you are not allowed to increase the
violation. There are some special rules in the Zoning Ordinance. The first rule
allows some structures to be treated the same as structures in existence, either
under construction or in design. you can go ahead and continue your expanding
the side yard where your non-conformance was it still enables you to go ahead
and finish the building. The second rule is the side setback exception. This rule
allows you to continue a pnc setback as long as you do not increase it 200
percent or more. The third exception concerns off-street parking. It simply
allows when the use of a business building changes and requires more off-
street parking to only provide parking created by the increase. Some of the
buildings in existence have no off street parking.
Mr. Dougherty summarized the prior non-conformance issue: " it is important
you acquire the status and if you do acquire the status. If you acquire the status
it is important you not lose it and to not lose you must honor the conditions in the
Zoning Ordinance addressing prior non-conformance."
Mr. Dougherty reviewed the two situations located at Sunset and Community. He
stated the two particular cases came after the Zoning Ordinance was adopted in
• 1937 and he believed the problems were not created by the technology, but were
possibly measured incorrectly and the error was not caught. The City now
requires a survey anytime new construction or major remodeling plans are
submitted. Also when properties are bought and sold the title companies
requires surveys and the errors are discovered at that time. He did not feel these
two cases had acquired the necessary prior non-conformance status.
Mr. Dougherty explained the City Manager had requested some legislative
addressing of the problem caused by the new technological advances in
surveying. He presented a draft of proposed amendment to the pnc ordinance.
The first way to achieve pnc status if it is a very small encroachment, for exampfe
three inches or less and there is no evidence of a deliberate attempt to violate the
ordinance. This could be handled administratively by the Building division office
by certification by the Building Official. The second way would be for if the
violation is more than three inches it sets up a procedure for acquiring prior non-
conformance by the of granting a special exception. This could be done by
showing the violation was created inadvertently and not unreasonably hazardous
to life or property. He further explained this would enable the Zoning Board of
Adjustment to grant relief in the proper cases without having to grant a variance.
Granting of a variance requires showing of hardship and the hardship has to be
more than financial. It is very hard to prove the hardship, because money can
solve the problem in many cases.
~ Sterling Minor stated that was the very case a few months ago, it was very
difficult to prove the hardship.
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• Mr. Dougherty explained notices and a hearing would still be required, but this
does provide a way to grant relief if the issue cannot be resolved by the Building
Official.
Sterling Minor said he felt this was a step in the right direction to establish
policy, however some kind of term limitation should be applicable so these kind
of cases which have been in existence for years would not have to appear before
the Zoning Board of Adjustment in order to get relief.
Ty Hutchins stated he felt certain there are many more structures in the City of
West University with the same problem. He felt requiring any structure with a
setback violation of more than three inches to appear before the Zoning Board of
Adjustment to receive relief would cause a large amount of citizens to have come
before the Board in order to do have any remodeling done on their houses.
Sterling Minor asked: "If is it reasonable to allow a small non-conformity to be
handled by a simple adminstrative policy? Just in terms of time, there are a
couple of concepts, one is the exposure of the violation to the Building Division
is just as likely in future years as in the past. Possibly once section needs to
deal with the changes to the zoning ordinance which occurred in the seventies
and eighties."
• Les Albin stated though current technology in surveying is improving in his
experience that a three inch error is a fairly common occurrance. A three inch
error is normal with surveyors. One survey company may always be within three
hundreths of an inch, but others make errors and try to cover themselves. It is
not uncommon to uncover two or three property pins on the corner of a property.
Sterling Minor asked what is a reasonable time period in light of surveyors
coming back, somewhere between twenty and fifty years? Maybe a property built
back then and whose setbacks have not changed could be considered built in
compliance.
Ty Hutchins staed maybe it should be any structure built before 1950 should fall
into that category and say it is perceived as having a prior non-conformance
status. Sterling Minor stated he would amend that to say any item constructed or
established before 1950.
Jim Dougherty stated another item to be concerned with would be height. You
probably would want to change use of a building or pervious area.
Dennis Holm stated the Board needs to be aware you may be violating the
~ building code if you allow eaves to be within three feet of each other. He stated
the Sunset address if allowed to extend the building would create a code
violation and the Builder would have to one hour protect the entire wall and eave.
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~ The meeting adjourned approximately 9:30 p.m.
CHAIRMAN
ATTEST:
SECRETARY
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