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Zoning Board of Adjustments Minutes - 04/19/1989en M I N U T E S ZONING BOARD OF ADJUSTMENT April 19, 1989 PRESENT Richard Sutton, Chairman William Kidd, Vice Chairman Bill Rowland * Members Richard Sutherland Burrell Lacey, Alternate #2 Carl Wilson, Alternate #3 Roger McKinney, Director of Planning Subir Mukerjee, Development Coordinator Paul Stillson, Planner II * City Staff Barbara Bridges, Recording Secretary ABSENT Syd Litteken Edna Boren, Alternate #1 * Members Harold Arnett, Alternate #4 Ron Buffum * Councilor CALL TO ORDER The meeting was called to order by Chairman Sutton at 1:30 p.m. APPROVAL OF MINUTES It was moved by Richard Sutherland, seconded by Burrell Lacey, and passed unanimously that the February 15, 1989 Minutes be approved. BUSINESS ITEMS 1. V-89-04. Variance request to allow two windows on the zero setback side of the lot at #1 Peachtree Court The Board was addressed by the applicant, John Wellsfry. Mr. Wellsfry stated the windows were installed at the suggestion of his neighbor, who pointed out that there would be no window for emergency exit for the room the Wellsfrys were planning to use for a nursery. Mr. Wellsfry checked the deeds and covenants of his subdivision, and there was nothing written prohibiting windows on the zero setback side. Therefore, when construction was being done on their house to convert a garage to living space and build a new garage, they asked the builder to install the windows. An agreement between the Wellsfrys and the next door neighbor was drawn up, which stated the approval of the neighbor for the windows, and provided that the Wellsfrys would brick up the windows if a future property owner objects. Two weeks after installation, the Wellsfrys received a citation from the Building Inspection Department concerning the windows, which was when they became aware this is a violation. Item No. K,�s 110 Page No. During discussion by the Board, windows are on a different side construction, and the building installation of the windows. it was brought out that the of the house than the garage permit did not include the Richard Sutherland noted the agreement has not been filed, and stated he did not see how the Board could issue a variance contin- gent to something that has not been done. Mr. Wellsfry stated he was waiting to file the agreement depending on approval of the variance. Otherwise there would be no need to file it. Mr. Suther- land then noted the agreement attempts to allow the parties to do something they would not be allowed to do by law; therefore, this would raise questions as to enforceability of the agreement. Chairman Sutton also questioned the enforceability of the agree- ment even if the variance is granted. Therefore, it was his opinion the agreement is irrelevant to the request. What should be considered is the fact that nothing in the application cites anything unusual about the property on which to grant a variance. Rather, the situation was caused by voluntary and elective action on the part of the applicant. Mr. Wellsfry was questioned as to whether the window actually dis- turbs the privacy of the neighbor. He stated the window oppositt in the neighbor's house opens into a closet rather than a room: Therefore, you could not look from one house into the other one. After further discussion, it was moved by Mr. Sutherland that the variance be granted because: - it does not impose any hardship on the neighbor; it was in fact their idea. - it would not violate the use of the property. - the agreement runs with the land, not the property owner, and all successors and assigns would be bound to the terms until the agreement is set aside. Mr. Sutherland stated these circumstances create a special condi- tion that "doesn't fit neatly within the purview of the ordinance, but would not work a hardship on the citizens." This motion was seconded by Carl Wilson, who stated he had talked to the neighbors in the area, and they are in agreement. It was determined that Mr. Wilson, as Alternate #3, could not be one of the five voting members at the meeting, and therefore could not second the motion. Chairman Sutton called for another second. There being none made, the motion died. Bill Rowland moved that the variance be denied, and questioned the previous motion, if granting the variance would be contradicting the ordinance. Chairman Sutton stated that if the previous motion had passed, and in the future the agreement was not carried out, the property owners would have to apply to the courts for remedy. Also, granting the variance would in effect state that the Board Item No. N,NS 111 Page No. - - could use the additional criteria of whether or not property owners liked something, and that is not the intent of the ordi- nance. It was his opinion that granting the variance "would be a very bad precedent which would overturn the ordinance." Mr. Sutherland also responded to Mr. Rowland, stating his reasons for making the motion included: - granting the variance would not be contrary to the public iN interest. - it would not permit an activity on the land that is not allowed by ordinance, because the building is a proper use. to - it is consistent with the intent of the ordinance because it is not injurious to the neighbor or detrimental to the public welfare. to Mr. Sutherland also felt that if the Board granted the variance, "we have not rewritten the law, we have done our job." to Mr. Rowland's motion was seconded by Burrell Lacey. Chairman Sutton called for the vote, which passed by 4 in favor by Rowland, Kidd, Lacey, and Sutton, and 1 opposed by Richard Sutherland. 2. Report on the Padilla Case Chairman Sutton had requested an update on the Padilla case at the February meeting. Mr. McKinney reported that the Assistant City Attorney had met with Mrs. Padilla's attorney, Doug Baker. Mr. Baker agreed to have the variance request resubmitted by April 26th, which is the deadline for the May meeting. If the applica- tion is not submitted by that date, the City will proceed with legal steps to have the carport removed. aw The meeting adjourned at 2:05 p.m. aw do Richard N. Sutton, Chairman Date Im ME Item No. Mi►IS Page No. -IS_ 112