Board of Zoning Appeals

BOARD OF ZONING APPEALS The regular meeting of the Board of Zoning Appeals was held on November 2, 2017, at 7:00 p.m. in the Public Safety Building located at 500 Quincy Street. President Majic called the meeting to order at 7:00 p.m. ROLL CALL OF MEMBERS Present Absent President Majic Board Member Manchin Board Member Shultz Board Member Deasy Board Member Ragen City Staff Present City Planner, Sandra Scaffidi City Manager, Robin Gomez Building Inspector, Ken Fletcher APPROVAL OF MINUTES President Majic asked for a motion to approve the minutes from October 5, 2017. Board Member Ragen motioned to approve the minutes. Board Member Deasy seconded the motion. Motion carried 4-0. PUBLIC HEARINGS FOR November 2, 2017 1. Rose Johnson is requesting a variance from City Code Section 3.1.1.F Development Standards which requires a minimum rear yard setback of 25 feet. The applicant wishes to encroach in the rear setback 16 feet. The property is zoned General Residential, located at 106 Wheeling Street and is identified as tax parcel 3-34-16.1. President Majic: Is there anyone here to speak in favor of this request? Elijah Hetrick: I am Mrs. Johnson’s contractor. They called me wanting to build an addition. I am pretty sure it is within the property line. I have some dimension of it [the addition]. Gia Deasy: Are you the contractor for this project? Elijah Hetrick: Me and another contractor. Sandra Scaffidi: Do you know the length and width of the house as existing? Elijah Hetrick: The house is roughly 22 feet by 30 feet. The addition is about 18 feet wide. President Majic: What is the nearest structure on the other property? Do you know how many feet there would be between where you are building and the next structure on the other property? Elijah Hetrick: There is a shed on the neighbor’s property. It is probably close to the property line. It is probably about 20 feet from the addition. We will be building an addition and a porch. Sandra Scaffidi: The lot depth is only 50 feet. They want to build an addition on a house that is roughly 22x33 feet. There is a front yard setback. Without a survey, I don’t know the answer. Their rear yard is less than 16 feet. There hasn’t been a survey to my knowledge. Page 1 of 8 Sandra Jean Dobbs-Linear {neighbor) lives at 306 Maple Avenue. On January 2, 1995, the Partnership had a survey done of my property and showed me exactly where my property line is. The stakes are there. The contractor asked me three times if they could bring their dirt over onto my property. I told them no. I told him to get it touch with whoever is in charge and have them tell you where to place the dirt, because if you come over here you are putting it on my property. I am speaking against this variance. Sandra Scaffidi: I received a call today, so I just wrote a note since the person who called was unable to be here. Nicole Turner called at 3:01 p.m. on Thursday, November 2, 2017 to express concern for her in-laws that are unable to attend the meeting tonight. Mrs. Turner’s in-laws live at 300 Maple Avenue and they are concerned that the applicants are encroaching on the property line. Mrs. Turner stated that the applicants took down a fence between the properties and promised to install a new one when construction was complete. They are not against the construction of the addition so much that they have concerns about property encroachment. Board Member Deasy: Can any of this be done without encroaching on the property line? Elijah Hetrick: This is a three-story addition. The second story will be a living room and the bottom floor will be added onto the finished basement [the rest of his statement is inaudible]. Janet Jones (property owner): There are nine of us paying for it. Our mother left the house to all of us. It is a family effort. I am part owner. In speaking to the fence, there was a fence put between her house and our house. There was already a fence there connected to our house. Those are the fences we removed. When the Partnership went to build those homes, they were going to work on our home too when my mother was alive, but he didn’t know the back porch was ours. So we have the house and an addition in the back. That is where they keeping talking about where the fence is. The poles (property markers) are there. I looked at them a couple of weeks ago. When they put up the fence, our property was a little bit over, but we just wanted to redo our home and make it better. President Majic: Do I have a motion to close the public hearing? Board Member Shultz motioned to close the public hearing. Board Member Ragen seconded that motion. Motion carried 4-0. Sandra Scaffidi: This lot is an incredibly small lot. There is forty feet of frontage along Wheeling Street. There is fifty feet along the rear alley. The square footage of this lot is 2,003.76 sq. ft. As you all know, our standard size is 6,000 sq. ft. It is a sub-standard square lot to begin with. However, there is an existing building on it and it is being renovated. We know the depth of the existing building is approximately twenty-two feet. I just did some quick math. Plus an 18 foot addition and subtract that from a fifty foot lot; that leaves ten feet, but that doesn’t take into account what the front setback includes. Without a proper survey, we don’t know exactly where the property line is. President Majic: Do you have a design for the project? I didn’t see one in the packet. Sandra Scaffidi: I haven’t seen any, but you might want to ask if there is one. Ken [Fletcher], do we have any plans? I am basing my information from the Tax Assessor’s website. It is not perfect, but it is what I have to go on. There does not appear to be sufficient room to construct an addition onto this house. When I went through the five questions that the BZA has to answer to grant a variance, I cannot answer affirmatively to all of those questions. We won’t be able to allow the proper setbacks. We need twenty-five feet of a rear yard setback. It would be less than ten feet at this point. I think there are safety issues there. I don’t think there are any special conditions to this property aside from the fact that it is a small parcel. I don’t think this is an unnecessary hardship. I think this request is against the expressed standards of the zoning code and will not allow the intent of the zoning ordinance to be served. It is my recommendation that the variance for the minimum rear yard setback be denied. Page 2 of 8 Board Member Ragan motioned to deny this request. Board Member Deasy seconded the motion. Motion carried 4-0. 2. Gregory Pratt is requesting a conditional use permit to allow a pre-owned auto sales facility at 1500 Morgantown Avenue. Auto Sales is a conditional use in the Neighborhood Mixed Use Zoning District. The property is identified as tax parcel 5-1-1. George Pratt: I am here in case anyone has any questions. We will not make the neighborhood look bad. In speaking with the owner, the lot has been used for used cars sale in the past and has been its primary use. I have been in business in Fairmont and White Hall for the past eighteen years. This will be strictly used cars and trucks; no ATVs, boats, or trailers of any kind. We will have quality merchandise. We will have about 12 to 15 vehicles on average with a maximum of 20 vehicles. The property is attached to the location of an old car wash. The owner of this property owns that as well. Down the road, he is looking to take down the car wash and I will be able to expand my business. We may repave the entire lot. My only concern is making the location to look better than it does at this point. We are looking to improve the property we will be leasing now. Board Member Deasy motioned to close the public hearing. Board Member Ragen seconded the motion. Motion carried 4-0. The Board members had a brief discussion and then President Majic ask Sandra Scaffidi for her staff report. Sandra Scaffidi: Automotive sales are a conditional use in the Neighborhood Mixed Use district. That is why Mr. Pratt is here today. There are a few regulations that we need to follow for automotive sales in this neighborhood that are in our ordinance such as: hours of operation, loading and unloading, light intensity, placement of vending machines, loitering, litter control, and placement of trash receptacles. With these items, we could impose additional restrictions if we feel that they would be harmful to the neighborhood. However, at this time, I don’t feel that there would be adverse effects to the neighborhood. Since this is an existing building, I don’t think it would be in conflict with the other uses in the area. The applicant can reuse a vacant site with minimal alterations. It is already set up to host an automobile facility. Due to the fact that the site has been an active business for many years, there are no significant changes that have been proposed by the applicant, staff supports the conditional use request to allow the property to be used for automotive sales. Board Member Ragen motioned to approve this request. Board Member Shultz seconded the request. Motion carried 4-0. 3. Jonathan Oates is requesting an appeal from the City Planner’s decision to deny his request for a variance regarding the City Code Section 5.10.4 which requires an accessories building to be located in the rear yard only. The applicant wishes to set his storage building in the front yard. The property is zoned General Residential, located at 221 Braddock Street and is identified as Tax Parcel 4-11-69. Jonathan Oates: This request started around the end of September when I went into the City offices and applied for a permit. When I applied for the permit, at that time, I told them that it would not fit in the rear yard because of the layout of the property. It is a side of a hill. The shed is sitting on a separate lot from my house. The lot that my house sits on is adjacent to a lot that was split in half. Other than one other place on my property, it is the only flat area on my property. The building was placed and the City Inspector, Ken [Fletcher], came out and told me it would need to be moved. I asked him where it could be moved and he showed me a couple of places. One of them was the other spot that I have as a flat area. It is right next to where my kids’ little swing set is. The other area is between the existing storage building that I have on the property and my house. Page 3 of 8 President Majic: So there is already one other existing storage building and this will be a second storage building? Jonathan Oates: Yes. It is smaller. The first building is being used to house lawn mowers, weed eaters, gasoline, and flammable materials so they are not in my house. I explained to Ken that where the building sits now, because I was told that it couldn’t go in the rear yard, it sits partially in the side yard anyway. So to move it, it would have to moved back a total of five feet to be completely in the side yard. While all of this was going on, I went ahead, since I didn’t know what was going to happen tonight, I made plans in case I needed to move it. The guy who delivered it came back and met with me three weeks ago. I showed him a couple spots where it could be moved. The one spot in between the existing storage building and my house, he said they would not move it there because there was a good chance that while they were putting it there, it would flip over because it is extremely top heavy. It is extremely complicated. The other side of the house, the building would sit right up against the house. It is the only spot not adjacent to the road. It is the only flat area that I have for my children to play in. Are there any questions? President Majic: Did you ever consider ripping down the old building and doing one big building? Jonathan Oates: Even if I rip down the old building, it would not go where the building is now because the back end of it sits six feet up off the ground because there is a very steep hill there. President Majic: I am going to take a second to read an agency comment from the City’s Engineering department. It states: There is a six inch water main that lies in the area of the front yard at 221 Braddock Street. Sandra showed the Board members a map showing where the water main is located. President Majic: Is there anyone else to speak in favor of this request? There were none. President Majic: Is there anyone to speak against this request? Kimberly Ruckle: My house faces away from his. You have to drive up and around the hill to get to his house. The split lot that he is talking about is not a split lot. It is my property. His building sits on my yard. It is an extra lot. I have two lots in the City of Fairmont. I pay two lot fees at tax time. I have had one conversation with him over seven years ago about having grass cut that I didn’t know I own. So I have been paying for seven years to have the grass cut. I have paid to have trees that have fallen down removed. A couple of years ago, the water line busted and the City came out and fixed that. I do have pictures of his house and his building. I also have pictures from my house where you can see the building that I have at my back yard. His is directly above mine on the hill. Unless my property line goes on an angle, that is my property. President Majic: Did you say you actually pay property tax on these lots we are discussing and they are in your name? Kimberly Ruckle: Absolutely. I get two tax bills every year. One is for where my house is and one for the extra lot behind mine. The lot is straight down wooded-area. You can’t build on it, but I have been paying taxes on it since I moved in (Inaudible because of a lot of papers moving about). Kim Ruckle showed the Board members and Sandra Scaffidi where her property lines are around his house and current shed is on the map/pictures the Board members have. President Majic: Have you had your property surveyed at any time? Page 4 of 8 Kim Ruckle: I had the land surveyed seven years ago when I moved in. I don’t want any trouble with him, but if I go to sell that house and his building is encroaching on my lot, I can’t tell somebody that I am selling them two lots but you will have to excuse my neighbor’s building. Sandra Scaffidi: Did you say that you have stakes in the ground and that you know exactly where your property lines are? Kim Ruckle: There were two stakes in the ground there. President Majic: Do you still have a copy of that survey by chance? Kim Ruckle: It would be with my real estate papers at home. President Majic: O.K. Kim Ruckle: My mother is a real estate agent. When she sold me the house, all you could see was trees. I didn’t know there was grass on the other side; so I didn’t know I had something cut on the other side. That is how I found out that I owned property all the way to there. The first house that I bought had a garage that was almost on the property line. I had to get a signed letter from the neighbors stating that I could go on his property to paint it. Board members looked over all the information presented. Board Member Ragen: If it does stay there, is it within the side yard setback where the current building is sitting from his property line? If it is that close to her property, but not on it, I don’t think he has the proper side setback either. President Majic: I don’t think so. It is a good question. Sandra Scaffidi: According to a survey found in book 851, page 619 in the deed book, the applicant does have a frontage of 118.75 feet. That includes that half lot which is shown as Parcel 70. His house is Parcel 69; just as a point of clarification. President Majic: That is his frontage? Sandra Scaffidi: He has 118.75. That includes his house and adjacent to his driveway; that whole area. I think your [Kimberly Ruckle] lot adjacent to his, is 90 feet of frontage. Again, just as a point of clarification. President Majic: We are a little unclear about who owns what and exact where the lines are. I couldn’t even begin to make a decision without a set survey. President Majic: At this time, is there anyone else to speak against this request? Donna Wilson: First of all, I would like to say we are not against anyone having an extra shed because everyone needs extra room. However, a lot of adjacent neighbors feel that we own our property. We have lived there for over ten years and we try to keep our landscaping in good condition and good curb appeal. To allow one person to place a generic shed on blocks, in the front of his property, would negate all of our efforts over the years. We think that would have a negative effect on our property value. We are jointly requesting that this variance be denied for the benefit of the entire neighborhood. I have some signatures here from the adjacent neighbors (Donna Wilson handed in a petition). One of the neighbors said she mailed in a letter to the City. She gave me a copy to bring to you (Donne Wilson handed in the letter). Page 5 of 8 President Majic: I am going to read this letter for the record. This is from David and Pam Wean. It states: We are writing to comment on the requested variance to code Section 5.10.4 to allow a shed to remain in place in the neighbor’s front yard. We know that this property has very little available yard to place a shed. We do not want to cause a hardship on this family because they have a lack of storage area. However, we do feel that the appearance of the newly installed shed is not attractive or acceptable solution for our lovely neighborhood. We request that the shed be moved out of the front yard to a more suitable location. We feel that if this variance is approved, it will set a precedence to possibly allow this to occur in other yards in our neighborhood. President Majic: I also have some signatures they gathered. Sandra Scaffidi: Can you say how many signatures are there? Donna Wilson: There are twenty-seven signatures. President Majic: Is there anyone else to speak against this? Jonathan Oates: Can I speak again? President Majic: The hearing is still open so, yes, you may. Jonathan Oates: As far as the property line is concerned, when we purchased the home, we were told where the drop off is, at the bottom, is our property line. If that is the case, then it is probably five feet from the back of the building to the property line. As far as the look of the building, it is not finished because a day after it was placed, I was told it couldn’t stay there so why do more work to it. I wasn’t planning on just leaving the underneath open for everyone to see. There would be underpinning up. It would not stay the way it is. It just didn’t seem reasonable to do it if it couldn’t stay there. If I put it up, I would have to tear it back down. I just wanted to make sure it was understood that it was not going to stay that way. President Majic: Is there anyone else to speak against this request? Anna Romano: I live right across from the shed. There isn’t much to add. There are twenty-seven neighbors that don’t want the shed. Sheds don’t belong in the front yard. It is a law for a reason. This should be denied. It is literally a shed in the front yard. It is probably five feet from the curb. It is the front yard. It is not a trailer park; it’s a neighborhood. Rules are made for a reason; put the shed in the back. Jonathan Oates: The shed is fifteen feet from the curb. President Majic: Before I close the public hearing, I want to ask if Ken Fletcher (the City’s building Inspector) would like to say anything. Some of the Board Members questions were whether the side setback was going to be made. Ken Fletcher: It looks like it is on the property line, if not over. Like I told him, if he could put it on the side of the house, between the existing shed and the house, I would be happy as long as he leaves five feet from the house for the fire separation. Board Member Deasy motioned to close the public hearing. Board Member Ragen seconded the motion. Motion carried 4-0. President Majic requested the staff report from Sandra Scaffidi. Page 6 of 8 Sandra Scaffidi: The property in question is a residential lot along Braddock Street. The applicant placed a utility shed in the front yard of a vacant parcel. According to City Code Section 8.9.6.A, the powers and duties of the Board of Zoning Appeals shall “hear, review and determine appeals from an order, requirement, decision or determination made by an administrative official charged with the enforcement [of] this Zoning Ordinance or rule and regulation adopted pursuant thereto.” It should be noted that the BZA shall consider only whether or not the administrative decision was correct. The Board does not have the power to grant a variance from the land use, nor does the Board have the power to change the zoning classification of a property. The facts as alleged: We know there is a 8x12 foot storage building placed at 221 Braddock Street. On the original permit, on September 20th, I signed off on the permit writing that the building “must be in the rear yard, 5’ from property line.” The building inspector also signed off on the permit on September 20, 2017, as did the applicant showing that he saw the placement requirements. On, or approximately on September 22, 2017, the applicant came into the Building Inspection Office and stated that the rear yard was too steep to place the storage shed and requested permission to place the building in the side yard. The applicant brought a plat map to show the proposed location of the storage building which was behind the front setback line. The plat map from 1984 also showed the two lots as merged. The building inspector gave permission for the relocation of the shed to the side yard. I was out of town at the time of that discussion. The county tax map shows that the house is located on parcel 4-11-69 and the adjacent parcel is separate and listed as 4-11-70. On, or about October 1, 2017, the shed was installed. On or about October 2, 2017, the Building Inspector made an inspection at the project location and noted that the building was not in the agreed upon location. On October 2, 2017, the applicant came into the Planning office and challenged our reading of the code. The applicant asked for a variance. The Planner stated that she did not think he could request a variance since he is already in violation of the code. He would need to appeal the administrative decision. To be certain, the Planner stated she would double check and call him with the information. The applicant was provided an application for the Board of Zoning Appeals, told the meeting would be in November and was provided the dates/deadlines for application. On October 5, the Planner called the applicant to tell him that he had to move the shed while he was appealing the administrative decision. The applicant told the Planner that the Building Inspector and the Planner said that he could keep the shed in place while he appealed the decision. The Planner stated that it was a misunderstanding and that was just while we were determining whether he could apply for a variance or an appeal. The Planner apologized for the misunderstanding and agreed to allow him to keep the shed in place until the Board of Zoning Appeals makes their ruling in November. On October 10, 2017, the Planner sent Mr. Oates a letter reiterating that the shed cannot be placed in the front yard and that he may not apply for a variance but instead appeal the decision to the Board of Zoning Appeals (Exhibit D). A visual inspection of the property indicates that while the lot is slightly challenged by topography, there is available room for the shed in the side yard on both sides of the building. The applicant told the Planner that he did not want to inconvenience himself by placing the new shed by the old shed and obstruct his ability to walk around his house. The area to the right of the house was unusable, according to the applicant, because that is where he plays with his children. In preparing the staff report for the appeal, on October 30, 2017 it was determined through research at the Marion County Assessor’s Office that the subject property is indeed a merged lot (Exhibit E). The parcels were not shown as merged on the online county GIS website. Therefore, the placement of the structure is no longer on a vacant lot. It was only when I went upstairs to the Accessor’s office that I found that out. So the structure is not placed on a vacant lot. However, it is still in the front yard. The issues that remain are: 1. The accessory structure (shed) is placed in the front yard 2. A 5 inch water main is located underneath the proposed location for the utility shed which was also discovered as a result of this appeal process. Page 7 of 8 The applicable codes relating to this case are the following: 5.10.4 “Accessory buildings, pools and other similar structures shall be constructed in the rear yard only. The Planning Department may permit the placement of an accessory building in a side yard, if no practical alternative exists, provided that the building meets the provisions of Section 5.2 Architectural Requirements. All notice requirements were met. Therefore, Planning and Zoning Code 5.10.4 requires accessory structures to be located in the rear or side yard. It is my recommendation that the appeal be denied and the applicant be required to move the shelter to the side yard location. President Majic: Any questions or comments at this time (from the Board)? Board Member Deasy: Just a quick comment. There are only so many things this Board can do. Like Mrs. Romano said, there are rules in place. We don’t want to see any more sheds in the front yard. I don’t think any of us are against additional storage, but there are codes to where storage is to be placed to keep our neighborhoods looking attractive. Board Member Deasy motioned to deny the appeal. Board Member Ragen seconded the motion. Motion carried 4-0. President Majic: We have no disposition of past cases or other business. Sandra Scaffidi: Can I just make a quick comment to our Board members? We do have a few slots available in January for positions on this Board. We have two alternate positions that need to be filled. Also, Board Member Shultz and Board Member Manchin terms are up. If they would like to reapply for the Board, we need to have that in writing. One other thought, I had a call today from a business owner who was wondering if we could have a special meeting for a conditional use permit. She wants to reopen a business that has been in use within the last year. I am not sure if we have the time with Thanksgiving holiday. We need at least two weeks (for legal notifications to go out according to our ordinance. Board Members discussed the request with Sandra Scaffidi and decided to deny the request for a special session. Board Member Ragen motioned to adjourn the meeting. Board Member Shultz seconded the motion. Motion carried 4-0. Page 8 of 8