Zoning Board of Adjustments Minutes - 01/17/1990M I N U T E S
ZONING BOARD OF ADJUSTMENT
January 17, 1990
PRESENT
Ralph Perkins, Chairman
Richard Sutherland
Burrell Lacey * Members
Syd Litteken
Dana Barnett, Alternate #3
Ron Buffum * Councilor
Subir Mukerjee, Development Coordinator
Jeanie Thompson, Assistant City Attorney * City Staff
Barbara Bridges, Recording Secretary
ABSENT
Edna Boren, Alternate #1 * Members
Jane McCown, Alternate #2
(Vice Chairman William Kidd was present in the audience, and due to
a conflict of interest did not participate as a Board member, enter
into the discussion, or vote.)
(The Board was composed of only 8 members on the date of this meet-
ing.)
CALL TO ORDER
The meeting was called to order at 1:30 p.m. by Chairman Perkins.
APPROVAL OF MINUTES
It was moved by Richard Sutherland, seconded by Burrell Lacey, and
passed unanimously that the December 20, 1989 Minutes be approved.
BUSINESS ITEMS
"' V-90-01. Variance application to allow a frame and masonry gazebo
to encroach into the rear building setback and a util tV
easement at 2042 Peachtree Lane (Lot 3, Blk 15, Midwestern
•W Park Subdivision)
The Board was addressed by David Tate, attorney for Mr. & Mrs. Tom
AW Swanson, applicants, who were also present. Mr. Tate presented
copies of a petition signed by neighbors in the Peachtree addition,
indicating they have no objections to the gazebo. He also presented
pictures of the lot and surrounding area. Mr. Tate requested that
°o the variance be granted as "a matter of practicality" based on his
stated considerations:
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- The gazebo was constructed with the assurance of the builder
that it would be in compliance with City regulations, and through
no effort of the applicant to violate the ordinance.
- The gazebo is constructed behind the 6'-high brick privacy
fence, and therefore does not impair the visual corridor.
- None of the neighbors object.
- Requiring removal of the gazebo would deprive the Swansons
of the use of the property as enjoyed by others in their subdivi-
sion, since there is another gazebo a half -block away, as well as
other types of structures.
- The removal would also create an economic hardship, as the
cost of construction was approximately $3,500.
Mr. Sutherland questioned Mr. Tate on his basis for requesting a
variance. Mr. Tate stated that the situation was not a result of
action of the applicant, but rather from the contractor, Mr.
Saikowski. Mr. Sutherland noted that as the applicants had
requested the construction, they would have some responsibility in
the action. If there is a dispute with the builder, they could
take him to court. Also, "ignorance of the ordinance doesn't
create a condition to give rise to a variance."
Discussion was made of the staff report which noted that the gazebo
was built approximately 121,' into the 15' rear setback and approxi-
mately 5' over a utility easement. Syd Litteken questioned the
staff concerning the encroachment over the easement. Mr. Tate
debated the idea that this encroachment would have to be removed,
reiterating the fact that this is not part of the variance request.
Mr. Mukerjee answered Mr. Litteken, advising that there are several
major utility lines in this easement, which in his opinion would
preclude the closure of it.
Chairman Perkins referenced Mr. Tate's statement that the neighbors
have no objection. He noted the possibility that the neighbors
might want the same thing, and approval of the request might result
in 10 more variance requests. Mr. Litteken agreed that approval
might "open the door to a lot of other problems." He stated that
the presentation made is, "we've got a zoning Ordinance but let's
don't pay attention to it because of a mess-up on somebody's part."
Richard Sutherland disagreed, stating that "what we do today has no
legal binding on what we do next week or last week, and we need to
look at each individual circumstance not on the basis of being
besieged with more applicants." He further stated his opinion that
the Board does not have to incorporate all the evaluation criteria
in order to grant a variance. He moved that the request be granted
based on Sec. 7340 A & D, that the granting of the variance will
not be contrary to the public interest, and it would not be incon-
sistent with the intent of the ordinance as the visual corridor
would not be impaired in any way. The motion died for lack of a
second.
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136
M
It was then moved by Burrell Lacey that the variance be disapproved
based on Sec. 7340 B & D, in that no special condition exists other
than financial, and it would not meet with the spirit and intent of
the ordinance. The motion was seconded by Syd Litteken, and passed
by vote of 4 in favor by Perkins, Lacey, Litteken, and Barnett, and
1 opposed by Sutherland.
The ing adj ourr�i at 2 :13 p.m.
r ns, Chairman bate
Attest:
9 3 - 'qO
Subir Mukerjee evelopment Coordinator Date
W7
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