Board of Zoning Appeals

1 BOARD OF ZONING APPEALS MEETING AGENDA 2 VIRTUAL PUBLIC HEARING 3 Thursday, August 13, 2020 4 7:30 p.m. 5 6 1. CALL TO ORDER 7 MR. BOYLE: I believe the recording may not have been 8 working at the very beginning, so what I'd like to do is simply 9 restate that this is the Special Meeting for the Board of Zoning 10 Appeals for August 13, 2020. 11 12 2. ROLL CALL 13 MR. BOYLE: Members present are David Calabrese, Roy 14 Jones, Keith Bartlett, Peter Kien. Absent are Dale Eppler and 15 John Misleh. Zoning Administrator is present. Deputy Zoning 16 Administrator and BZA Secretary Akida Rouzi is absent. And I 17 think that catches us up. 18 And just for the recording secretary, when she hears 19 this, for the record, insert this at the beginning for your 20 notes. 21 22 3. PETITIONS 23 4. OLD BUSINESS 24 25 5. NEW BUSINESS 26 a. Variance application V1616-20 by Jeff and Katie 27 Skalka, applicant and owner, for a variance to Section 48-238, 28 to allow 27.4% lot coverage instead of 25% maximum permitted by 29 Code, and 37.2% impervious lot coverage instead of 35% maximum 30 permitted by Code, for the purpose of constructing a front porch 31 on premises known as 205 Patterson Street, RPC #52-113-008 of 32 the Falls Church Real Property Records, zoned R-1A, Low Density 33 Residential. 34 (Continuing) 35 MR. BOYLE: In their presentation you should have a 36 multi-page presentation from the applicants that shows a cover 37 letter detailing what they feel their hardship is and scrolling 38 through, several graphics showing the proposed footprint shot 39 from their grading plan, and a depiction of what they're hoping 40 to do. 41 This Board has heard applications for increases in lot 42 coverage before and typically that's when the lot is substandard 43 for area and a consideration is given to what would they have 44 been allowed had the lot been the required minimum of 11,250. 45 And they address that in their cover letter. 46 The Board should have three emails sent yesterday and 47 today from neighbors. One in opposition, I think a second one 48 that was concerned about mitigating, and a third in favor. 49 What I think what the Board should consider is the 50 concerns raised by the neighbors deal with water runoff. And 51 it's something I think we struggle with in Zoning and in the 52 functions of this Board is that the Board typically and Zoning 53 typically is not concerned with where the water goes but are the 54 percentages being met. 55 And there is precedent in other considerations such as 56 special use permits where if a problem is created by granting 57 the variance or a special use permit, if that problem can be 58 mitigated by the imposition of conditions, then it can be 59 approved contingent on those conditions being applied. 60 And if the Board so chose to approve this variance 61 tonight, this project, these building plans and the accompanying 62 grading plan, are headed to the engineers and building 63 inspection for an extensive review and a grading plan review. 64 At that point the Board could condition an approval if 65 it chose, on whatever those reviewers felt would mitigate the 66 concerns of the neighbors. 67 So I don't want the Board -- and the reason I say this 68 is I don't want the Board to feel that in your expertise you 69 should feel obligated to determine how to mitigate the water 70 runoff concerns of the neighbors. That is something that can be 71 dealt with by the engineers and it's part of their routine 72 reviews. 73 So personally in Zoning, we don't have an answer for 74 questions like that. So don't be surprised if you find yourself 75 in a similar situation: What do we do to address these 76 neighbors' concerns. That can be handled, if the Board chooses, 77 in the following reviews by the engineers and the building 78 inspectors. They do have ways to address these things. 79 And they don't have to approve it at their level of 80 review. The neighbors will be invited to that conversation as 81 well, particularly the grading plan. If they're not satisfied 82 with the mitigation, then that staff, that group of staff that 83 reviews, in their expertise can decide not to approve it. 84 So by all means don't feel that you need to be an 85 expert in how to mitigate water runoff this evening. The focus 86  87 is in, is it a reasonable hardship based on the application that 88 you have in front of you to increase the percentages for 89 building coverage and impervious coverage with whatever 90 conditions that you feel are appropriate. 91 So I did feel that a little bit of background 92 explanation was appropriate for where this process will lead to 93 assist the Board in their deliberation this evening. 94 So with that, I'll defer to the applicants for their 95 presentation. 96 MR. JONES: Thank you, Mr. Boyle. 97 MS. SKALKA: Thank you, John. That was very helpful. 98 It was a very arduous process already to get some of these plans 99 together so forgive me if I stumble and don't say numbers quite 100 the way that they're supposed to be. I'm an educator by trade 101 but there's so many numbers so thank you for your patience as we 102 have obviously never done this before. 103 So, it came to our attention that our lot was 104 undersized and that if our lot were the standard size of 11,250 105 square feet, we would be afforded about 254 square feet of 106 additional coverage and about 355 square feet of additional 107 impervious area. 108 So when we applied for this covered area, we made sure 109 to design it within that constraint so that our percentages 110 based on an 11,250 site would still be within the 25 percent and 111 the 35 percent. 112 So we're hoping that you take a look at the numbers 113 difference and realize that we are right up at that minimum or 114 that maximum rather but we aren't a minimum lot size. So we're 115 hoping that given that hardship you'll afford us this extra 116 space on our lot. 117 I could rattle off all the numbers. I think that 118 would just sound like numbers soup. We understand that this is 119 our preference to build this way and that's not your 120 consideration. We understand that there will be water runoff 121 and that we have already contracted engineers at LDC. They have 122 an extensive grading plan that's already put into review. I 123 think it's already paid for and being reviewed right now. 124 And it's an extensive water mitigation, just so you 125 know, not that you need to be experts as John said, but the goal 126 is to be equal to or less than our current. And right now the 127 plan that we have in place for review is equal to. So we're 128 looking to not increase hardships to our neighbors because I 129 know that is something that you would be concerned about. 130 I guess I'm mostly interested in hearing what your 131 questions are because I feel like, you know, it's a very basic 132 construction. It's not laying on the ground. We have the 133 ability to mitigate with conditions anything that you would 134 propose. It's a very standard back porch actually, I know that 135 was a typo. We're hoping you don't make us put it on the front 136 if you approve it tonight. 137 So, I think we're ready to field questions if that's 138 how we proceed. 139 MR. JONES: Thank you very much for your presentation. 140 With that, I think, if that sort of concludes your 141 presentation, we'll start with questions from the Board. 142 If my colleagues don't mind, I'd like to lead off with 143 a question about your description of the hardship that would 144 sort of ensue by being within the current parameters of the 145 Code. 146 The Code, one of the things we look for besides any 147 potential negative impact on your neighbors which I think we can 148 touch on a little bit later, is whether the strict application 149 of the Code creates an un -- I forget the term, I think it's 150 unreasonable restriction on the utilization of your property. 151 So, for me, I think my first question, if my 152 colleagues would indulge me, is if you could speak a little bit 153 about how the hardship, how staying within the current Code is 154 sort of unreasonably restricting on your ability to enjoy your 155 property. 156 MS. SKALKA: It's an excellent question actually. So 157 our house is actually designed with what I'm calling "door to 158 nowhere" right now. The home was always intended for and 159 initial grading plan indicates the presence of a deck that was 160 not previously built. 161 So right now we have an entire section of our property 162 that we can't access through the doors to our house because it 163 stands six feet above the sewer, above the ground. 164 So that's one. I think that's kind of glaring as 165 we're in our house. And the way that the lot is designed, is 166 there's a very obvious section that should have a deck, or 167 something built on to the house there. 168 The majority of the rest of our property is landscaped 169 that we've improved upon even since the last grading plan so 170 this would be kind of the only area where we could enjoy and 171 being outside. 172 MR. JONES: Two of your neighbors submitted letters I 173 believe with concern about the water runoff which is sort of a 174 separate issue that Mr. Boyle touched upon. 175 Did any of your other neighbors indicate any concerns 176 with the actual building of the structure itself; i.e., it would 177 encroach upon a view or anywhere else? Did your neighbors sort 178 of indicate any other concerns other than just the water runoff 179 issue? 180 MS. SKALKA: Not to our knowledge. The house is set 181 back from the property of the two people that did write letters. 182 And we have -- when we built the privacy fence when we first 183 bought the property, we consulted them and made sure that they 184 were cool with what we put up. 185 That was a very smooth process. Everyone was very 186 glad to see us tear down the chain link fence and put up some 187 nice landscaping and fence and actually improve upon some of the 188 drainage at that point, which the current drainage plan does not 189 -- or the grading plan does not indicate any improvements that 190 we've done since then. 191 No, not that I know of. The way that the house is 192 structured, we're actually, if you look at the plans, just kind 193 of filling in an "L" to make the house a true box. Like I said, 194 it was always designed to have a deck that was within kind of a 195 contiguous rectangle. So it's not going to the side or going 196 deep into the property at all. 197 MR. JONES: Did you try to talk to any of your 198 neighbors about your structure? I know there's a notice 199 requirement. But did you try to engage them and say, Hey, 200 here's what we're doing? 201 MS. SKALKA: Yeah. Jeff, you talked to Jason a couple 202 of times. 203 MR. SKALKA: Mentioned it to Jason, who's directly 204 behind us. And I think that the understandable concern is 205 exactly what those letters written upon which is the drainage. 206 And prior to even having conversation with neighbors 207 or even John Boyle and the engineering firm that we engaged, we 208 thought of the idea of how do we be certain to mitigate any 209 potential additional runoff which would be inevitable. 210 And through the conversation with the engineering 211 firm, was when we started discussing what that could look like 212 and certainly we're very much in favor of doing so, for not only 213 environmental reasons but, of course, also being certain to keep 214 the neighbors and the City happy. 215 MS. SKALKA: Yeah, so, in short, I think, no, it's not 216 a higher roof line, it's not an extended footprint. In any of 217 our conversations, it's almost always has come back to water. 218 MR. JONES: Thank you. And my last question, I don't 219 want to monopolize all the time, I'll turn it over to my 220 colleagues, could you speak a little bit more to these "doors to 221 nowhere", and how that sort of creates a hardship on your 222 current living situation. Is this a situation where you open 223 the back door and you've got a drop-down or if you could speak a 224 little bit more to the "doors to nowhere". 225 MS. SKALKA: Yeah, yeah, that's exactly right. So 226 there's double sliding glass doors that currently have 227 construction tape across them so that nobody could fall out of 228 the house. You would fall down about six feet. 229 MR. JONES: Okay. Thank you. I appreciate that very 230 much. 231 That answers my questions so with that, I will happily 232 turn it over to my colleagues. 233 MR. CALABRESE: If I could ask a question. 234 So, you mentioned that you would be able to do work to 235 address additional runoff. But it appears from your neighbors' 236 letter that there's a significant problem now with runoff. So 237 if you could answer or address what would appear to be a bad 238 situation that could be getting worse with this add-on. Could 239 you address that. 240 MS. SKALKA: Yeah. Thank you for mentioning that. 241 So in reviewing Scott -- let me just make sure I get 242 the names right, his letter did mention that in the process of 243 building the house, and you should know that we did not contract 244 this particular house. It was a set house that we bought I 245 think several months after it sat on the market in 2018. We 246 bought it the last work day of 2018 and moved in in January of 247 2019. 248 And if you look at a lot of Scott's pictures, much of 249 that damage happened prior to us moving in and during the 250 construction process. I don't know how much of that was, that 251 they cleared the lot and let it sit there, that they didn't take 252 proper mitigation protocols when they were building the house. 253 We had noticed that there could be potential -- when 254 we took up the fence, that there could be potential for us to 255 disturb what were some natural blockages and filters, just weeds 256 and brush and old chain link fence. 257 So when we put in the fence, and we had talked about 258 it with him then, we put in extra landscaping and moved some of 259 the drainage around. 260 So I'm not entirely sure that some of what he's citing 261 is very current. Even the picture of 2020, it's not clear that 262 that damage occurred in 2020. 263 So, I guess I certainly wouldn't want to increase his 264 hardship but I'm not convinced that that's something that we 265 should necessarily be responsible for at this time. 266 And if our engineers come back to us and say that we 267 are putting off too much water already, then as I said before, 268 our goal is to be at what we're at or less. And that written in 269 as a special condition would be acceptable to us for sure. 270 MR. CALABRESE: Well, I think he's saying that it's 271 now, that the problem is now. That's what I got from his letter 272 and the other neighbor also appears to have a similar concern. 273 So you mentioned that the hardship of not building the 274 deck or the outside porch. Now, typically when we hear these 275 hardship requests, they're when you're building, you redesign 276 the house, you're adding another room, you're adding another 277 level. We don't typically hear it in terms of a hardship that 278 you cannot build a screened porch. 279 The question I would have is, well, maybe there's this 280 door that's non-functional. What about another design that 281 would keep you within a smaller design, that would keep you 282 within the numbers. 283 MS. SKALKA: So, I think currently we do not have 284 enough square footage to do anything that would be considered an 285 acceptable design. It wouldn't be worth constructing anything, 286 you could only fit a chair, for instance. 287 We're suggesting 15 by 17 feet, which if we add it's 288 still within the percentage of the adjusted lot size. And 289 actually to fill that entire space would be -- I think it's only 290 just filling in this corner. 291 So,I don't know, do you want to add something to that? 292 So, I agree with you that it feels like a preference or an extra 293 and the house was designed to have something there. It just 294 was not previously built prior to our buying the house. 295 MR. SKALKA: I agree and I think that -- I don't want 296 to harp on this but the design that we would look to have 297 approved would certainly require an engineer and the City's 298 approval of a mitigation tool that would ensure that there is no 299 additional runoff. 300 MR. CALABRESE: Right. And I'll just finish up with 301 kind of repeating my first question. You mentioned again, 302 additional runoff. It sounds like there's some very serious 303 concerns from some neighbors who appear to be suffering from a 304 current runoff. 305 So when we look at a hardship and looking at the 306 equities here, unless there's more information, it appears that 307 we're talking about an existing problem that we're going to add 308 on to but then we're going to try to mitigate the added-on 309 problem. 310 I don't know how, if you already have a runoff 311 problem, it would seem to me that we should be mitigating that 312 first before we go to the next stage, building an additional 313 area that could exacerbate a situation. 314 So, I don't know if we have enough information but 315 these are very strong letters. Stronger than what we normally 316 receive from directly-affected neighbors. 317 So that's my only comment I think. 318 MS. SKALKA: I appreciate that. 319 I read Jason's letter definitely as a hasn't had any 320 problems recently. I definitely read Scott's feeling like he 321 has a current problem. 322 We have not heard any of that until just now. 323 MR. SKALKA: I talked with Jason and Jason's mentioned 324 it. And he also mentioned that after we planned it, the 325 multiple plans that seems to have -- I don't know if he would 326 say the word "resolve" but it would be close to that, if not 327 resolve. 328 MR. CALABRESE: Thank you. 329 MR. JONES: Thank you, Mr. Calabrese. 330 I'm not able to see any of my other colleagues, but, 331 Mr. Kien or Mr. Bartlett, do you have any questions for the 332 applicants? 333 MR. BARTLETT: Yes, I have a question related to your 334 reference to lot size and why that's relevant to your hardship. 335 You keep saying that if you had a lot that was 11,320 336 feet, then you'd be able to build this. But the Code requires, 337 based on my understanding, the Code requires whether or not 338 you're R-1A or R-1B to comply with the same building 339 restrictions as far as lot coverage and impervious surface, 25 340 or 35 as well. So whether or not you're R-1A or R-1B, you have 341 to comply with the same percentages. 342 I know you're listed as a R-1A and you bought it as a 343 R-1A. I'm trying to figure out why we should create this 344 345 precedent to allow people to exceed strict adherence to the Code 346 based on that. 347 MS. SKALKA: It's my understanding that it wouldn't be 348 creating a precedent, that this is a hardship that has been 349 mentioned before when people want to exceed their percentage 350 based on an undersized lot. 351 MR. BARTLETT: Are you claiming your lot's undersized? 352 MS. SKALKA: Yes. Yes. A minimum standard lot for 353 our zone is 11,250 square feet and our lot is 10,234 square 354 feet. 355 MR. BARTLETT: Just to make sure I'm understanding what 356 you're saying, because your lot is below 11,000, that equates to 357 a hardship? 358 MS. SKALKA: Yes. It does not meet the minimum 359 standard for the zone. 360 MR. SKALKA: I don't know if there is any information 361 that Mr. Boyle has that would confirm that we're not setting a 362 precedent or if that's not appropriate for this time, we'll skip 363 that. 364 MR. BOYLE: I think the Board has considered lack of 365 square footage based on what the Code requires in the past, 366 maybe not for impervious and pervious issues. Staff does 367 consider a lack of square footage as substandard and then 368 there's a number of things that cascade from that. It's 369 potential for the height of the building or setbacks to be 370 reduced. 371 So staff would consider this a substandard lot. 372 MR. BARTLETT: So Mr. Calabrese asked a question 373 earlier about design alternatives. Did you think of installing 374 a different structure if you want to use this area that might 375 not lead to this issue? 376 MS. SKALKA: This is definitely the design that we'd 377 like to consider at this time. If our variance is not granted, 378 I think we'll have to go back and look at what our options are. 379 At the beginning of this process we looked at various 380 restructures that would stay within the percentage. There's a 381 system called the Equinox that's a louvered roof that I think 382 some people have used in the past. We were unable to find a 383 contractor that was willing to install it in Falls Church City, 384 just couldn't find anybody that had the product and had the 385 license to work in the City. 386 That's when it kind of came to our attention that we 387 could apply for a variance based on the substandard lot. 388 So, yeah, we did look at many different designs for a 389 roof and were unable to find anything other than a traditional 390 design, so. 391 MR. JONES: Mr. Boyle, can I ask you a question. 392 If this was a standard size lot, 11,250 square feet, 393 and the applicant had this exact same application package, would 394 the design as presented be within Code if this was a standard 395 size lot, 11,250 square feet? 396 MR. BOYLE: Let me do some quick math here. 11,250 397 times 35 percent is 3937. 398 Applicants, do you have your numbers on what your -- 399 MS. SKALKA: Yes. Yeah. Would you like us 400 to -- 401 MR. BOYLE: Yes. 402 MS. SKALKA: It's in the cover letter. Somewhere 403 toward the bottom of the first paragraph I believe. I don't 404 have it in front of me. 405 It says if our project were on a lot of 11,250 square 406 feet, we would be within the coverage maximum of 25 percent at 407 24.9 percent with 2808 square feet and we would be below the 35 408 percent impervious surface coverage of 3809. 409 So, yes, is our answer anyway. And like I said, the 410 math was a little much. I didn't want to rattle off all those 411 numbers but, yes, it would be within a standard lot. 412 MR. BOYLE: Yes, I'd agree with that point. It 413 appears what they're proposing would be by right if they had the 414 square footage. 415 The lot is shy 5 feet in width. It's 70. This zone, 416 175. And I think to make the math work it would have to be 150 417 feet deep. So they're missing on depth and width and that's 418 where the shortfall is. 419 So I think what they're proposing would be by right if 420 they had the square footage. 421 MR. JONES: Thank you. 422 Mr. Bartlett, any questions? 423 (No response.) 424 MR. JONES: Mr. Kien? 425 MR. KIEN: None for me. 426 MR. CALABRESE: If I could go back, so back to the 427 question about alternative design. 428 When you were answering the previous question, you 429 mentioned, you focused on the roof. Is this about the roof or 430 is this about the size of the porch? 431 MS. SKALKA: I think it's mostly about the roof, 432 increasing our coverage. 433 MR. CALABRESE: But the roof design you said was the 434 problem. 435 MS. SKALKA: Well, yes, it would be a standard roof so 436 it would be considered coverage on the lot versus something that 437 might be a pergola or a louvered system. 438 MR. BOYLE: I might be able to assist with that, Mr. 439 Chair. 440 Our Code defines a building as a roof supported by 441 columns or walls. So even something that is built as a deck 442 with planks that in and of itself were pervious, if a roof goes 443 over it, then the Code defines it as a building. Then it's 444 capped for both the building coverage of 25 and the impervious 445 coverage of 35. So that's where the roof plays a role in this 446 conversation. 447 MR. CALABRESE: Right. But I guess the question I had 448 was when we were asking the question about alternative designs, 449 now there was a comment made that you could go back and look at 450 alternative designs. But I thought what you were saying though 451 is that the problem isn't the size, it's the type of roof that 452 is the problem, finding the right type of contractor to build 453 that type of roof, was not available or -- 454 MR. BOYLE: I might be able to speak to that as well. 455 There is a type of roof where the surface rotates 90 456 degrees. Instead of being a flat surface roof it rotates and 457 becomes a pergola. And currently in our Code, the Code doesn't 458 anticipate that type of design. So I like to phrase it as the 459 "pergola police" will not go out and check and see if your roof 460 is flat or are the slats vertical. 461 So that type of design is not defined as a roof, so 462 it's not then defined as a building. 463 And what the applicant was referring to, is there is a 464 design out there that rotates its panels. So at one moment it's 465 maybe flat, the next moment it's rotated to let sun and water 466 come through. 467 We do not define that as a roof or coverage at this 468 time. Code change in the future might change that and I think 469 her point was that they couldn't find a contractor of that type 470 of product that would come in and do the work here. 471 MR. CALABRESE: Okay. My question was more on the 472 hardship side. Are we talking about a hardship because of the 473 design, a preferred design that's not available, or just 474 difficult design, or are we talking about something that's 475 essential, that has to be this type of roof? 476 MR. BARTLETT: Or that it has to have a roof at all. 477 MR. CALABRESE: Right, right. 478 MR. BARTLETT: Because if this was a deck, we wouldn't 479 be having this conversation. 480 MR. CALABRESE: Right. 481 MR. BARTLETT: And I feel for the applicant because 482 the builder maxed out impervious and covered surface based on 483 percentages and then they left it vacant space here for the 484 potential owners to resolve. 485 I do empathize. 486 MR. CALABRESE: Yeah, I agree. 487 MS. SKALKA: The thing that we're willing to -- yes, 488 thank you. The builder was not as considerate as he could have 489 been. 490 And at the same time, the focus that we want to stick 491 with during this application process is the Code itself and what 492 conditions we need to meet to achieve a variance and the 493 hardship of an undersized lot being something that people cite 494 in other cases and that the design that we're asking for still 495 puts us under the maximum if we consider the difference between 496 our substandard lot and a standard lot. 497 MR. CALABRESE: Yes. I would be interested in hearing 498 more about the precedential value of undersize lots being the 499 source of a hardship. I mean, people buy the lots knowing that. 500 And excuse me for saying this, but you bought it 501 knowing it was a substandard or undersize lot. 502 MR. BARTLETT: One of my initial reactions to the 503 question is, then we wouldn't have percentages. We would just 504 have a fixed number of buildable area that if your lot was 505 10,000, then you could build 3500 square feet, and 2500 square 506 feet, instead of a percentage which is for all residential 507 zoning structures because of the variability of these lots. 508 MR. CALABRESE: Right. 509 MS. SKALKA: My understanding that the percentages are 510 specifically though to mitigate potential environmental hazard. 511 And our desire is not to increase any environmental hardships to 512 ourselves or our neighbors and our ultimate design would be 513 taking those things into consideration. 514 So we're hoping that you'll hear our one neighbor that 515 says that we do care very deeply about the City and we do want 516 everyone to feel as included in the process as possible and to 517 ultimately be much better off. I mean, this project could very 518 well solve a lot of problems that this neighbor Scott is having. 519 It's interesting to me, you know, I understand and I 520 agree that his design to be a percentage and we're hoping that 521 you'll grant the variance based on the difference. 522 MR. JONES: Okay. If there's no more questions for 523 the applicants, we will close the presentation. 524 Thank you very much for the amount of work you've put 525 into this. And we will sort of confer -- I'm sorry, are you 526 all done with your presentation? 527 MR. SKALKA: I believe so. 528 MS. SKALKA: Unless there are more questions, yes. 529 MR. BOYLE: Mr. Chair, a point if I could. 530 MR. JONES: Absolutely. 531 MR. BOYLE: I think with four or five members, I 532 neglected to point out that we should give them that option of 533 continuing for a full Board. We appreciate the Board making 534 time in August for a special meeting. 535 Secondly I see, on my screen anyway, that we have two 536 or more guests that are observing. 537 MR. JONES: Okay. 538 MR. BOYLE: Perhaps we should give them an opportunity 539 to speak. I did not notice that during the public conversation. 540 MR. JONES: Okay. 541 MR. BOYLE: Number of Board plus the public who would 542 like to speak, if possible. 543 MR. JONES: Great. Thank you for pointing that out. 544 I guess on my screen, I wasn't able to see that we had 545 any members of the public, so I apologize. 546 If you would like to speak about this variance 547 application, if you could please state your name clearly for the 548 record and then once you've stated your name, we will swear you 549 in. 550 MS. SAVITZ: Hi, can you hear me? 551 MR. JONES: Yes. 552 MS. SAVITZ: This is Natalya and Scott Savitz. We 553 live at 212 South West Street. We own that property and we're 554 the neighbors of the 205 Patterson Street, like we're 555 kitty-corner to that property. 556 MR. JONES: Okay. Thank you. 557 Is there any other members of the public who are going 558 to speak on this application? 559 (No response.) 560 MR. JONES: Not hearing or seeing anyone else, Mr. 561 Boyle, if you see any other members of the public, please let me 562 know. I'm unable to see them from my screen. 563 Ma'am, would you and your husband raise your right 564 hand and swear to tell the whole truth. 565 MS. SAVITZ: Yes, we do. 566 MR. SAVITZ: Yes. 567 MR. JONES: Thank you. 568 So we understand that you wrote a letter to this 569 Board about this application and if you have anything that you 570 would like to say, I think we would appreciate hearing it. 571 MS. SAVITZ: Yes. We bought our house in 2012. At 572 that time the 205 Patterson Street had a relatively small house 573 with a small shed. We didn't have any problems at that time. 574 We didn't have any flooding on our lot. 575 After their house was gutted and the new structures 576 were built, we started getting periodic flooding on our property 577 which resulted in pretty much standing water in the back and the 578 side of our property and also damage to our finished basement. 579 So we're very concerned about the proposal to increase 580 the variance, even the proposals for them to just build the deck 581 because that means that they are increasing impermeable surface. 582 There will be no planting under that deck to absorb the water so 583 the water will be running downhill right to our property and 584 creating more damage. 585 I feel for the Skulkas. I understand they would like 586 to have a deck but in this case it's creating damage to the 587 surrounding properties which is not fair and is not desirable 588 for anyone. 589 Would you like to add anything? 590 MR. JONES: When you say that it's creating damage -- 591 MS. SAVITZ: Our letter to show the damage, both the 592 outside damage, how the water was standing there, as well as the 593 inside damage that we've incurred. 594 We've already spent thousands of dollars trying to 595 mitigate that and we still are looking at 20,000 or more to fix 596 what was already broken because of this new structure. 597 MR. JONES: And when you say the damage to your 598 property, this is a recent phenomena, it started I guess in 599 20 -- 600 MS. SAVITZ: The end of 2018, yes. 601 MR. JONES: And it still continues currently. 602 MS. SAVITZ: Yes. 603 MR. JONES: Thank you. 604 Any questions from the Board for the presenter? 605 MR. KIEN: I have one. 606 So your property, the northeast corner of your 607 property abuts the southwest corner of the Skulkas' property, is 608 that accurate? 609 MS. SAVITZ: Yes. 610 MR. KIEN: And the water flow from what I can tell 611 from the topographical maps basically flows kind of due south, 612 from corner to corner on your lot; would that be accurate to 613 say, that it flows from the northeast corner to the southwest 614 corner? 615 MS. SAVITZ: Yes. Because we have a retaining wall so 616 that kind of moves the water down to the south side of our 617 property, yes. 618 MR. KIEN: Between your property and where your 619 property joins the Skulka property, can you describe what that 620 looks like. Is it green open space or is it other space? I'm 621 trying to get a sense of where the water was standing in the 622 pictures that you were sending because I can't see them in 623 regards to the wall. 624 MS. SAVITZ: Right. So the back of our property is a 625 garden. There are a lot of trees and vegetation there. Where 626 627 the water was standing is on the south side of our property, so 628 that's on the side of the building, not in the back of the 629 building for the most part. And that's grass and there's some 630 vegetation there as well. 631 MR. KIEN: Okay. Thank you. 632 MR. CALABRESE: You say you had some professional 633 remediation. Have those individuals posited any opinion on 634 where the water is coming from? 635 MS. SAVITZ: Basically they said it's coming from the 636 neighbors. It's running downhill and then accumulating on our 637 property. 638 MR. CALABRESE: Neighbors referring to? 639 MS. SAVITZ: The Skulkas. 640 MR. CALABRESE: Okay. 641 MR. JONES: Okay. Any additional comments? 642 MR. CALABRESE: Do we have a letter from the Becks, 643 David and Jennifer Beck? There was no letter from them, was 644 there? 645 MR. BOYLE: No, sir. 646 MR. JONES: I don't believe so. 647 Mr. Boyle, there are no more members of the public 648 that want to opine or express an opinion on this application, is 649 that correct? 650 MR. BOYLE: I think that's correct. They show up as 651 guests, so all we can do is poll them and see if they're willing 652 to speak. I think you've done that. 653 MR. JONES: I appreciate that. I don't know if my 654 technical limitations but I can't see anybody, so that's 655 helpful. Thank you very much. 656 Now that we've heard from the members of the public 657 and the applicants, we'll close the presentation and the 658 comments and now we'll open it up to the Board to discuss among 659 themselves any thoughts or comments or opinions. 660 MR. CALABRESE: I guess I'm concerned that it sounds 661 like we do have an existing problem unfortunately. And the 662 Savitz, it sounds like they are experiencing some pretty severe, 663 moderately severe water problems. And I think, well those, 664 that's up to the neighbors how they wish to address that. 665 But to me, that has to be resolved before you would 666 add on, you would go grant any exceptions to allow an expansion 667 of the impervious area which may be the problem now, the 668 expanded building. 669 So I'm just very concerned about again, as I 670 mentioned, making a bad situation worse. 671 MR. KIEN: So, John, I emailed you during this. Can 672 you pull that up and show the two pictures that I sent to you. 673 MR. BOYLE: Let's see. Who's speaking? I'm sorry. 674 MR. KIEN: I'm sorry, John. This is Peter. 675 MR. CALABRESE: And, John, my screen is frozen. Maybe 676 it's just me but I'm frozen here. If others can see, then maybe 677 it's okay. 678 MR. KIEN: So, David and other Board members, I shared 679 the same concern regards when I saw those pictures. So I 680 personally went to the property today and walked both streets to 681 try to see what we were dealing with here. 682 And much of this is topography-driven in that the 683 water naturally wants to flow from Patterson Street to the 684 southwest street due to elevation change. And it looks as 685 though the water wants to flow basically perfectly south which 686 would sheet across the applicant's yard towards the Savitz' 687 yard. 688 Where I'm struggling, I certainly understand the 689 mitigation factor for what the new build was. I'm struggling 690 somewhat with holding the Skalkas responsible for 100 percent 691 where their builder or their property 100 percent for the water 692 issues on the adjacent property based on the composition of that 693 property and what has been built there, which is from the 694 existing structure to the Skalkas' property is almost all 695 impervious area on the Savitz home and they're very much reliant 696 on the Skalkas' green space for their yard to keep water off 697 their property, which I don't know if that's a fair 698 responsibility to place on your neighbor. And I say that, just 699 saying I don't know if that's fair or not. 700 But it looks as though there's nothing to stop the 701 water to enter their property until it almost gets to the back 702 of their home due to the driveway and detached garage that is in 703 that northeast corner of their lot. 704 So I think there are contributing factors on both 705 properties and it would be hard to determine which one was 706 ultimately responsible. 707 MR. JONES: Okay. 708 MS. SAVITZ: Can I respond to that please? 709 So, our driveway and garage are on a different side of 710 the building than the one that's getting flooded. Getting 711 flooded is entirely where we have green area and the water is 712 going through our garden as well. So we're not expecting 713 Skulkas to take care of, absorb all of that water. We're 714 absorbing a lot of their water. 715 The driveway actually functions perfectly because it 716 just lets the water flow right on to South West Street. It's 717 the other side, the green side of our house that's actually a 718 problem. 719 MR. KIEN: So that's the lowest point on the property 720 there that's collecting the water at these times and that's 721 where the entry point is. 722 MS. SAVITZ: Yes. And furthermore, the damage is also 723 because the grading on the Skalkas' property changed when the 724 new house was built. The grading became much steeper. The 725 trees that were there were removed, so Skulkas' property was not 726 absorbing the water that they're generating, in addition to a 727 much bigger house. 728 So this all started, we owned our house for six years 729 with no problems. Then that building went up and we started 730 having problems. That's pretty much 100 percent their -- like 731 the builders. 732 MR. JONES: Okay. Mr. Kien, any other comments? 733 (No response.) 734 MR. JONES: And, Mr. Boyle, procedurally I think when 735 we close, I appreciate the public's input but I think my concern 736 is once we close it, are we still able to engage in additional 737 conversations with either the applicants or members of the 738 public? 739 MR. BOYLE: Mr. Chair, I did receive an email from a 740 neighbor that's trying to communicate and is not being heard. 741 I've suggested they try the instant message option on the lower 742 left. 743 But I think they must be the guest here. It looks 744 like their microphone is off. I'm seeing a guest, Mr. Bartlett, 745 a council member, and that's everyone accounted for. 746 So I'm not sure how to make contact. If that party 747 can send me an email, I could read their concerns. 748 I'll show you the email I received from Jason Hobbie, 749 variance application. 750 "We're watching the public hearing. We tried to 751 speak, we not able to. No one heard us." 752 So, they may be the guest shown on the screen. For 753 whatever reason, they're -- if they can hear us, you need to 754 turn your microphone on there or try the Instant Messenger 755 option over on the bottom left of the screen. 756 I'm troubled that they're not able to communicate. 757 Everyone else is accounted for. 758 MR. JONES: Okay. I want to make sure that members of 759 the public have the ability to either voice their concerns or 760 their support of the applicant. I'm a little concerned that a 761 member of the public is not able to do that. 762 MS. SKALKA: I see them typing right now. 763 MR. BOYLE: Yes. Can you see that? 764 Boy, in the future will we have stories to tell of 765 what we went through to have a public discourse. We had it 766 tough. 767 MR. CALABRESE: I can't -- maybe if you can read. For 768 some reason my screen is just frozen. I'm having some problem. 769 MR. BOYLE: Mr. Jason Hobbie is typing a message. 770 "Just clarifying that we are the owners of the Beck's 771 property shown on the plat. The current owners." 772 So on the -- looks like -- immediately behind. 773 So on the survey shown on the screen, the Hobbies are 774 the owners of the property indicated as Beck, directly behind. 775 MR. CALABRESE: So we have a letter from Mr. Hobbie, 776 right? 777 MR. BOYLE: Yes. Can everyone see what they're typing 778 or shall I read it? 779 MR. CALABRESE: I can't see it. 780 MR. BOYLE: They're the current owners directly 781 behind. "I am not sure what the current drainage discharge 782 point is currently on the Skalkas' property." 783 "Before they purchased the property I noticed that the 784 builder had routed everything to a point near the corner of 785 their lot with ours and the Savitzes. Routed all the drainage. 786 There was a corrugated black pipe discharging there. That 787 probably is contributing to the amount of water the Savitzes are 788 experiencing. If it is still there." 789 MR. JONES: Thank you, Mr. Hobbie. 790 Do you have any other comments or concern that you'd 791 like to type? 792 MR. BOYLE: He's typing. 793 He says he just wanted to provide clarification and 794 because a BZA member had asked about ownership. 795 So again, he's the owner of the property to the rear 796 on the document shown on the screen. 797 As staff, is anyone who could hear me satisfied that 798 they -- is anyone who could hear me not satisfied that they have 799 been able to make their positions known? 800 While we did have a glitch in the advertisement, the 801 public notice that went out, this particular item did have the 802 benefit of being advertised in the paper for two months plus two 803 neighbor notices, so staff is confident that everyone with an 804 interest in this case was notified that it was going to be heard 805 by a special meeting tonight. 806 For whatever reason, the electronics are a bit of a 807 challenge tonight. But I want to make sure from Zoning 808 Administrator's point of view, that everyone who has something 809 to say feels they've been adequately heard. 810 And as I speak, Mr. Hobbie says, "Because a BZA member 811 had asked about ownership. And how the water was draining." 812 And he says, Thank you. 813 So not to interrupt the Chair's duties, but if there's 814 anyone monitoring tonight that feels that they have not been 815 given an opportunity to speak, please do so using your 816 microphone or using the messaging tool, the little cloud on the 817 bottom left, and we'll receive your comments. 818 I think everyone is accounted for. 819 Mr. Chair. 820 MR. JONES: Thank you very much, Mr. Boyle. 821 So I just, in my mind there's two issues and the 822 public concerns that I have just for consideration on the Board. 823 One is the obvious concern with the runoff situation 824 as far as negatively impacting the neighbors is a concern for 825 me. And the second concern I have is the percentages and how 826 that relates to the hardship as presented by the applicants in 827 this case, especially any precedential value that this could 828 have. 829 Those are my concerns. I'm struggling with this one, 830 sort of what in my mind is something that is in favor of 831 approving the application, in my mind is that it's a substandard 832 lot. If this was a standard lot, 11,250 feet, the structure as 833 built would be within Code. So that weighs in favor for me. 834 Also, the way that the house is constructed, having 835 the doors, you know, so to speak, that aren't functional that 836 are leading essentially to nowhere in my mind is a favorable -- 837 in favor of approving the application. 838 But my main concern is how this is going to impact the 839 neighbors. 840 Mr. Boyle, I don't know if we can present -- I know we 841 able to attach conditions to any variance approval but I think 842 for me, Mr. Calabrese hit it sort of right on the head, is that 843 the negative impact on the neighbor's property weighs very 844 heavily and if the grading plan or the engineering can be 845 created such that the neighbors could have enjoyment of their 846 property without this runoff sort of mitigates some of my 847 concerns. 848 I think Peter also in my mind hit it right on the head 849 that there are some topographical concerns with the runoff. I 850 don't think it's completely the Skalkas' fault that the water is 851 running off in the direction that it is. 852 So those are my concerns and those are sort of the 853 things that are weighing in favor of approving the application 854 for me. Those are my thoughts. I'm very interested to hear any 855 other thoughts or comments from my colleagues on the Board. 856 MR. CALABRESE: Yeah, I think you, John, have 857 identified the issues correctly. 858 In my weighing of it, I guess I'm probably in a little 859 bit of a different direction. I'm weighing the hardship 860 presented to the petitioner that they cannot build the type of 861 deck that they would prefer with the roof design they prefer. 862 You know, when we hear concerns from neighbors, they 863 usually are revolving around sight lines and proximity to their 864 property and trees. Here we're talking about what appears to be 865 from the one guest here, actual monetary damages they're 866 suffering. 867 And I guess, I must say if I were to balance the 868 hardship of not being able to build this compared to what is 869 already happening and could I think reasonably assume would 870 continue or if not, be exacerbated, I would lean towards not 871 granting it. 872 So, that's I think where I am. 873 MR. JONES: Thank you, Mr. Calabrese. 874 Mr. Bartlett, Mr. Kien, do you have any thoughts? 875 MR. BARTLETT: I do. I thank you both for your 876 discussion, Mr. Jones and Mr. Calabrese, and I also thank 877 everyone for participating today. 878 I am uncomfortable with the outcome of approving a 879 variance on the neighbors and that's one of the elements that we 880 have to consider, is the granting of the variance will not be a 881 substantial detriment to adjacent property, nearby property. 882 But I'm also very concerned about the precedential 883 nature of basically changing the Code. As a substandard lot, if 884 885 we're going to say a substandard lot is a hardship, then 886 regardless of the size of the lot, then they get to build up to 887 35 percent of 11,250 feet, or 25 percent of that same standard 888 minimum lot coverage, then any lot that's R-1A or R-1B is going 889 to say, I want to build up to the percentage of the minimum lot 890 size instead of the percentage of your lot as it is and as it's 891 outlined in our Zoning. 892 To me, that's more of a concern. No, we're not water 893 experts. And we discussed a lot of water issues, about where it 894 comes from and where it goes. We're not engineers and I don't 895 know that's our role. It would be a potential detriment to 896 neighbors but I believe the biggest issue is, as I said, about 897 changing Code practice. People would use this going over the 898 issue, the variance for lot coverage grievances because it's 899 deemed a substandard lot. 900 MR. KIEN: So, and I appreciate the comments of all 901 the other Board members tonight and change the comments that I 902 would have made had I spoken first. 903 Certainly I do understand, Keith, you're coming from 904 that kind of slippery slope type of situation that you do set 905 there but I also believe that the purpose of this Board is to 906 weigh individual circumstance and then apply reasonable to that. 907 The substandard lot size and, John, please correct me 908 if I'm wrong, the substandard lot size is something that the 909 City weighs in on in allowing build to occur in the first place 910 when they don't meet the minimum. 911 And I do feel that it can weigh in in affecting the 912 homeowner's ability to reasonably improve the lot. 913 I agree that none of us are engineers and I almost 914 prefer (inaudible) those who are more qualified to figure out a 915 way to mitigate that. 916 I do know that a grading plan and storm water drainage 917 plan was submitted to the City and approved in order to build 918 that house. The homeowner to be held accountable for the 919 detriment of that plan, it's hard for me to put that 920 responsibility when that process pre-dated them. They did not 921 participate in that process. 922 I do feel that preference to design like David said 923 versus truly a hardship, I think you said it earlier, I think 924 they can build a deck on this house and this is not an issue and 925 the doors that are now not operable doors, while I think it's 926 not the preferred design, I think it's the least intrusive based 927 on the set of facts and circumstances. 928 MR. JONES: If I can just pin you back on that, I 929 think I agree with Peter's sort of assessment. In my mind I 930 think if this was a single story home that had a door that had 931 two steps and goes down to the ground, that would weigh sort of 932 against the design of it. But here we have, the hardship in my 933 mind is we have a house that was constructed pre-current owners 934 and now you have these doors that essentially go nowhere. 935 They're not useable for the current house. They're not useable 936 for the current structure. And the addition, if I can call it 937 that, to the house would just make use of those doors. 938 So in my mind I am concerned with the precedential 939 value. I do know that we sort of evaluate each case that comes 940 before this Board on a very fact- specific case by case basis. 941 So I tend to agree with what Peter is saying. In my 942 mind I think the substandard lot with the current structure of 943 the house, those doors that essentially are non-operable, they 944 don't lead to anything, that adding this structure would make 945 use of those doors, allow the applicants to have full use of 946 their property, in my mind weighs in favor of approving the 947 application. 948 I think any, certainly in my mind if this Board were 949 to approve the application, we would have to certainly weigh 950 951 very heavily the impact on the neighbors. They very rightly 952 voiced their concerns and with the water and the damage that 953 they're experiencing is certainly a factor that weighs very, 954 very heavily with me as far as everybody having the right to 955 reasonably enjoy the use of their property. 956 So I think in my mind if we were going to approve this 957 variance, the condition would be the engineers or the planning 958 or the grading would certainly have to mitigate or reduce the 959 amount of water such that it could on the neighbors' properties, 960 I think we sort of highlighted the fact that we're not water 961 experts, but I do think that mitigating any damage to the 962 neighboring properties to reduce that water that they're 963 experiencing, it weighs very, very heavily with me. 964 And I think the applicants in their presentation did 965 not object to taking measures that would mitigate any sort of 966 runoff to their neighbors, so all these factors sort of weigh 967 very, very heavily with me but I think I would be in favor of 968 approving the application subject to the engineering firms, the 969 grading plan mitigating the water damage that is experienced by 970 the neighbors. 971 MR. CALABRESE: I'll add one more thing. 972 I think after hearing Mr. Bartlett, I want to amend my 973 comments that I'm also very concerned about the precedential 974 value of this. 975 And the only other comment I would make, is in terms 976 of their enjoyment, petitioner's enjoyment of the property, 977 again I go back to a comment I made, when they bought the house, 978 the house was substandard at that time, it had the door to 979 nowhere, and as most things happen in this market, everything is 980 priced accordingly. 981 So I understand the concerns about there could be a 982 detriment but it was purchased with this information known. So 983 I think it's perfectly reasonable that someone would want to 984 build this type of structure. I would too. But again, we have 985 some other considerations and it was purchased knowing these 986 facts. 987 I'll leave it at that. 988 MR. JONES: Okay. Thank you for that. 989 Mr. Boyle, I just want to make sure that we're very 990 clear with the applicants that before any motion is called, they 991 do have the option to continue this to our next meeting when we 992 do have a full Board, is that correct? 993 MR. BOYLE: That's correct because we're shy one 994 member. 995 MR. JONES: Okay. 996 MS. SKALKA: Thank you again. I think that we would, 997 if it's okay with the Board members, we would like to continue. 998 We would like a continuance this evening. 999 MR. JONES: Okay. Mr. Boyle, is there any official 1000 action that we need to take with the applicants' request for a 1001 continuance? 1002 MR. BOYLE: The Rules of Procedure says the Board 1003 shall grant one motion to continue, so perhaps there's a need to 1004 take a vote, but the "shall" is -- let's go ahead and take a 1005 vote. There's no harm in staff carrying this over anyway but 1006 the Board should probably speak on that continuation. 1007 So we need a motion and a vote. 1008 MR. JONES: Okay. So to be clear, we would need a 1009 motion to approve the request for a continuance and a "yes" vote 1010 would be in favor of the continuance and a "no" vote would not, 1011 is that correct? 1012 MR. BOYLE: Yes. 1013 MR. JONES: Okay. Do I have a motion on the 1014 applicant's request for a continuance? 1015 MR. KIEN: I make a motion to approve the continuance 1016 request. 1017 MR. JONES: Is there a second? 1018 MR. BARTLETT: I'll second that motion. 1019 MR. JONES: Roll call vote please, Mr. Boyle. 1020 MR. BOYLE: Mr. Calabrese. 1021 MR. CALABRESE: Yes. 1022 MR. BOYLE: Mr. Jones. 1023 MR. JONES: Yes. 1024 MR. BOYLE: Mr. Misleh. 1025 (No response.) 1026 MR. BOYLE: Mr. Bartlett. 1027 MR. BARTLETT: Yes. 1028 MR. BOYLE: Mr. Kien. 1029 MR. KIEN: Yes. 1030 MR. BOYLE: Okay. Four in favor. 1031 MR. JONES: Thank you. 1032 Mr. and Mrs. Skalka, I can't see you but I think we'll 1033 I guess see you at the next meeting. Thank you for your time. 1034 MR. BARTLETT: Mr. Jones, can we clarify what the 1035 requirements are for continuing and if they're continuing this 1036 with the intent that they will be providing new information at 1037 the next meeting. 1038 MR. BOYLE: If I could, Mr. Chair, I'll clarify what 1039 the Code provides. I don't think there's a hurdle they need to 1040 clear. There is in the event of a refusal, there is a statement 1041 in the Code about presenting new information. I don't think 1042 there is one for a simple continuance. 1043 The catch is that or the limitation is that there's 1044 only one continuance allowed by the request of the applicant. 1045 I'll check the Code to see if they need to come back 1046 with additional information. Because we've had this in the past 1047 and then if we do have a new member present, they haven't heard 1048 this case. So, how do we proceed? Do we rehear everything? 1049 So my sense is that there has to be something new for 1050 the Board to consider but I'll double check that and present it 1051 to everyone, including the applicants and the public. 1052 MR. BARTLETT: Thank you, John. 1053 MR. JONES: Thank you, Mr. Boyle. 1054 Thank you, Mr. and Mrs. Skalka. 1055 1056 6. APPROVAL OF MINUTES 1057 7. OTHER BUSINESS 1058 MR. JONES: Mr. Boyle, I don't believe you said we 1059 have any Approval of Minutes or any Other Business, is that 1060 correct? 1061 MR. BOYLE: That's correct. 1062 And that I think completes our business. 1063 1064 8. ADJOURNMENT 1065 MR. JONES: Very good. Thank you. 1066 Do I have a motion to adjourn? 1067 MR. BARTLETT: So moved. 1068 MR. JONES: Roll call please, Mr. Boyle. 1069 MR. BOYLE: Mr. Calabrese. 1070 MR. CALABRESE: Yes. 1071 MR. BOYLE: Mr. Jones. 1072 MR. JONES: Yes. 1073 MR. BOYLE: Mr. Bartlett. 1074 MR. BARTLETT: Yes. 1075 MR. BOYLE: Mr. Kien. 1076 MR. KIEN: Yes. 1077 MR. BOYLE: Four in favor of adjournment. 1078 MR. JONES: Thank you, everyone. That concludes the 1079 Thursday, August 13, 2020, meeting of the Board of Zoning 1080 Appeals. Thanks, everyone. 1081 MR. BOYLE: See you in September. 1082 1083