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Zoning Board of Adjustments Minutes - 09/16/1998MINUTES BOARD OF ADJUSTMENT September 16, 1998 PRESENT: Rainer Hanold, Chairman John Key Don McKinney Bobby Redwine Guy Grogan David A. Clark, Director of Community Development Steve Seese, City Planning Administrator Paul Stillson, Planner II Diane Parker, Recording Secretary ABSENT: Charles A. Peters, III I. CALL TO ORDER 0 Members 0 0 0 0 Alternate #1 0 City Staff 0 0 0 ►7 AITi",1Tai The meeting was called to order at 1:31 p.m. by Chairman Hanold. A new alternate board member, Mr. Guy Grogan, was introduced. II. APPROVAL OF MINUTES Mr. McKinney made a motion to approve the July 15, 1998 minutes. The motion was seconded by Mr. Redwine. The minutes were approved with a unanimous vote in favor. III. REGULAR AGENDA 1. Case V 98-02 Reduce the Rear Setback 1313 Thirty-first Street Applicant: Norman Bratcher, owner. Property: 1313 318t Street, Lot 7-A, Block 5, Hillcrest Addition Requested action: Variance Purpose: To reduce the rear setback from 15 feet to 5 feet along the alley behind 1313 31 st Street BOARD OF ADJUSTMENT PAGE 1 of 6 SEPTEMBER 16,1998 Existing Land Use: Construction office and storage facility Purpose of Request: To construct building addition Zoning: General Commercial Surrounding Land Use & Zoning: North: Residential, Warehouse, GC South: Vacant Commercial Building, Residential, SF-2 East: Auto Repair, Vacant, GC West: Residential, Vacant, GC Commentary: The applicant's property is located in a general commercial zone adjacent to a single-family zoning district boundary. According to the buffering requirements, any building must setback 30 feet from a single family district. The alley can count as part of the buffer zone, leaving a 15 foot setback requirement on the back of the applicant's lot. The applicant requests a reduction of the setback to five feet so he can build five feet from the rear property line. Special Conditions/hardships: The applicant has cited the following special conditions. Staff's response follows each comment: "Existing commercial buildings in this area run to within five feet of the rear property line. Existing commercial building located on Lot 5, Block 5 runs to within five feet of the property line." The property cited by the applicant is located within five feet of the property line. That property is the only nonconforming property adjacent to the single-family boundary within that block. Staff does not feel that a single incidence sets precedence for the area, especially when the issue is single-family zoning district adjacency. 2. "Lots 8-7-6, Block 5 were owned by Norman R. Bratcher prior to zoning ordinance." Staff is unable to interpret the intent of the applicant's comment. 3. "Commercial Buildings located within Hillcrest Addition run to within five feet of rear property in many instances." In these instances, the properties are most likely located within a commercial zoning district. The case herein involves commercial land use adjacent to a single-family residential zoning district. 4. "New building less than one year old has been granted a variance in the Hillcrest Addition." This again is an issue of commercial land use proposal adjacent to a single-family zoning boundary. We have no record of a variance being granted, relevant to this request, within a reasonable proximity to the applicant's property. Staff has the following additional comments concerning this variance: Across the alley from the applicant's property, zoned single-family residential, is a lot occupied by a vacant commercial building. That building is a nonconforming use in a single-family zone. Being a nonconforming use, it cannot be expanded. 2. An auto repair building is located to the east of the applicant's property. That building is five BOARD OF ADJUSTMENT PAGE 2 of 6 SEPTEMBER 16,1998 feet from the rear property line. It does not meet the 30 foot setback requirement from a single-family zoning district. The applicant wants to build in line with that building. As mentioned above, that is the only building within this block that does not meet the 30 foot setback requirement. 3. In 1997 a variance was granted at 1408 33rd Street to reduce the front setback from 25 to 19 feet. In that case there were four adjacent buildings closer than 25 feet, a unique condition on that block. Analysis: A variance is a procedure which provides relaxation of the terms of the Zoning Ordinance, when owing to conditions peculiar to the property; not the result of actions by the applicant; and where a literal enforcement of the ordinance would result in unnecessary and undue hardship. Generally a variance can be granted for the following: 1. Where granting of the variance will not substantially affect the Comprehensive Plan. 2. The case is of practical necessity. 3. Where there are peculiar circumstances and conditions which are special and unique. 4. Where the hardship is solely due to the peculiar circumstances, and is unrelated to the conduct or self -originated expectations of property owners or buyers. These reasons are used corporately and not individually when determining the applicability of a variance. The following instances have been rejected by the courts as the basis for granting a variance: 1. Inconvenience. 2. Economic advantage. 3. Disappointment in learning that land is not available for the intended use. 4. Substantial construction has been done without the benefit of a permit. 5. Hardship is self-created by an owner or prior owner. 6. Special conditions personally affecting the land owner, and not the land. 7. The land was bought before the enactment of the ordinance, with building plans in mind. 8. Buying property after the Zoning Ordinance was adopted and claiming hardship through ignorance. 9. Physical disability to earn a living. 10. Attractive architectural features of a proposed building. 11. Evidence that the applicant had spent money in anticipation of being granted a variance. The applicant has not demonstrated his ability to meet parking, landscaping or setback requirements. Approval of this variance does not allow development on this lot contrary to other provisions of the zoning ordinance. BOARD OF ADJUSTMENT PAGE 3 of 6 SEPTEMBER 16,1998 Recommendation: The applicant has failed to demonstrate a situation or condition which qualifies for approval of this variance request. Staff recommends denial of this request. Mr. Norman Bratcher, applicant, was sworn in by Chairman Hanold. He stated that he would like to change the request to reduce the rear setback to within ten feet. Mr. Bratcher also stated that this location would have a 4,400 square foot building for his business. Chairman Hanold asked if this change would make a difference in staff's recommendation. Mr. Seese stated that the primary reason for staff's objection is that the criteria for granting a variance were not met. He explained that a variance can be granted if: 1. It will not substantially affect the Comprehensive Plan. 2. The case is of practical necessity. 3. There are peculiar circumstances and conditions which are special and unique. 4. A hardship can be determined due to peculiar circumstances and is unrelated o the conduct or self -originated expectations of property owners or buyers. Mr. Key inquired if staff planned to alter their recommendation due to this change. Mr. Seese explained that the basic opposition to this request is the criteria for granting a variance cannot be met. He further commented that there were no special conditions to indicate this condition could be classified as a hardship. Mr. Key asked Mr. Seese and Mr. Bratcher to comment on the four requirements: 1. Would granting the variance substantially affect the Comprehensive Plan? Seese: No. Bratcher: n/a 2. Is this case of practical necessity? Seese: The applicant has shown it is a practical necessity for him although the building has not been constructed yet. Bratcher: The proposed building is 80' x 80' and constructed of metal. He explained the cost of the building would increase if he reduced the size to a 75' depth and he would lose 400 square feet of space. 3. Are there peculiar circumstances and conditions that are special and unique? Seese: n/a Bratcher: Prior to the adoption of the Zoning Ordinance, in the Hillcrest area many buildings were built within five (5) feet or less of the property line. He stated that he had constructed some of those buildings during the 30 years his business has been operational. A commercial building on the adjacent lot is built on the rear property line. To comply with the parking and landscaping ordinances, this building will be setback further than the required 25' causing it to exceed the rear setback. BOARD OF ADJUSTMENT PAGE 4 of 6 SEPTEMBER 16,1998 To clarify #3, Mr. Key asked if the peculiar circumstance and condition is that an adjacent building is constructed to the property line with no setback. Mr. Bratcher concurred. 4. Is the hardship solely due to the peculiar circumstances and unrelated to the conduct or self - originated expectations of the property owner? Bratcher: He explained the alley is abandoned and is not passable. He was not sure whether it was still considered an alley by the City. He stated there is a commercial building behind his lot with a unoccupied residential building next to that. He described the surrounding the property indicating which ones were vacant. Seese: n/a. Mr. McKinney inquired about the markings on the notification map. The checks are positive responses and the x's are negatives responses. Chairman Hanold commented that the only negative response was received from an out-of-town property owner. There was discussion regarding the landscaping and parking issues as related to the front setback. It was determined that the building could not be moved forward (towards the street) to meet the rear setback requirements. Mr. Key asked for staff's interpretation of "peculiar circumstances" (#3). Mr. Seese stated cited examples from previous cases as his definition: Walgreen's located on Southwest Parkway could not meet setback requirements unless this Board permitted them to include the drainage ditch behind the building as part of the 30' setback; this Board granted a variance of the landscaping ordinance to allow 19 trees instead of the required 20 in order to comply with the parking requirements; and a variance of the sign ordinance was denied because the peculiar circumstance was that the sign was not visible from the street. Mr. Key inquired about the peculiar circumstance for this case. Mr. Seese responded that there is none. Mr. McKinney asked the width of the alley; Mr. Bratcher replied it is 15 feet wide. Mr. McKinney remarked that if the 10' setback is combined with the alley and the five foot setback (Single Family) on the lot behind his, there would be 30' between the rear of his building and a residence. It was mentioned that few homes would be built to extend that far back on a lot. Mr. Bratcher commented that he felt the lot would not be marketed as residential. Mr. McKinney asked why there is a difference in setback requirements for commercial and residential properties. Mr. Seese responded there is a 30' separation from commercial when abutting residential because the uses are so different. Mr. McKinney stated the only person affected would be the property owners behind Mr. Bratcher, which is a commercial lot. It was mentioned that none of the residents to the rear objected to this request and they would be the only ones affected. Mr. Seese reminded the Board that the responses received from the neighbors cannot be considered in making the decision on this or any BOA case. This Board must determine if there is a peculiarity or hardship about this property that would prohibit Mr. Bratcher from complying with the ordinance. This is a quasi-judicial, fact finding board. The neighbors preferences cannot be a factor in the Board's decision. Mr. McKinney requested the response forms be eliminated from the packet received by the members. Chairman Hanold concurred that the responses do affect the Board's decisions. Mr. McKinney stated the only people that would realize the setback is not standard would be Mr. Bratcher and the property owners behind him; from the street, no one would notice. Mr. Bratcher BOARD OF ADJUSTMENT PAGE 5 of 6 SEPTEMBER 16,1998 inquired about the difference in the side and rear setbacks. Mr. McKinney replied that ordinances are not always logical nor can they always be explained. Mr. Key stated that this variance application does not meet the test. He further commented that the Board could either legislate or follow the law. He agreed with Mr. McKinney that it would not be noticeable. Mr. Key remarked that Mr. Bratcher's hardships were losing 400 square feet of office space and an economic hardship which does not meet the criteria. He asked for more discussion before a motion is made. Mr. McKinney stated that it appears Mr. Key has solved this dilemma by reminding the Board what their charge is. He commented that he was sympathetic to Mr. Bratcher's problem; however, he does not meet the criteria and there are no special conditions. Mr. McKinney explained that an economic hardship is not a qualification for approving this variance request. Mr. Seese further added that the state law defines "special conditions" as what would make this property unique and not have the same situations as other lots. Again, he cited Walgreen's triangular lot because most commercial lots are rectangular or square. He also explained that Mr. Bratcher's only hardship is self-created by his adding to a building. Staff could not find anything to meet the criteria. Mr. Key stated that it would be helpful in the future for the Board and the applicant to have copies of the criteria. Mr. Seese referred to the Variance Application reading the four questions which must be answered by the applicant. Mr. McKinney made a motion to deny the variance. Mr. Key seconded the motion. The vote was five (5) in favor and none (0) opposed. The variance was denied with a majority vote. IV. OTHER BUSINESS Mr. Seese thanked the Board for their earlier suggestions (regarding the neighborhood responses). Chairman Hanold mentioned the response forms do affect the Board's decision on cases and he prefers not to see them. Mr. Key suggested there might be some comments or suggestions that Board members may have overlooked. He preferred to have them available. Mr. McKinney felt that it would be easy to be persuaded by the responses to not affect the adjacent property owners. He then stated that this case was the most difficult one heard and one of the few this Board has denied. V. ADJOURN The meeting was adjourned at 2:20 p.m. Rainer Hanold, Chairman Date BOARD OF ADJUSTMENT PAGE 6 of 6 SEPTEMBER 16,1998