Board of Adjustment

MINUTES BOARD OF ADJUSTMENT APRIL 23, 2012 - 4:30 P.M. CITY COUNCIL CHAMBERS PRESENT: Chairman Bang, Members Casey, Hoshor, Sawyer and Winter, Planning Director Rian Harkins, City Engineer Clark Boschult and Secretary Deb Pruss. ABSENT: None Chairman Bang read a statement that a copy of the Open Meeting Law is posted continually for public inspection near the agendas and a Public Notice of this meeting was given in advance by publicized notice in the Fremont Tribune, a copy of which is attached to these minutes and made a part thereto, and on radio KHUB; and the agenda displayed in the lobby of the Municipal Building, Police Station, and the Dodge County Courthouse on April 18, 2012 and is open to the public. Moved by Hoshor, seconded by Casey to approve the statement that this meeting is now determined to be a legal meeting. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. It was moved by Hoshor, seconded by Sawyer to dispense with the reading of the Minutes of the March 26, 2012 Regular Meeting and approve as distributed. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. Chairman Bang stated the general public is invited to address the Board of Adjustment regarding any item on this agenda at this time or wait until discussion of their request is taking place. No public comments were received. • Consider the variance request of Gary Pebley to build within the rear yard setback by 5 feet in order to build a bathroom addition to the existing structure at 581 West 20th. Article 4, Section 405. R1 – Single Family Residential District. Planning Director Harkins stated a lot of the information he could share is in the staff report. When looking at the attachments put in with the report, you will notice the property is a corner lot. It is not as deep as the ones on the block, especially to the west. Looking to the east of this property, the lots are deeper and it is a lot easier to do an addition because of the uniqueness being this lot is shallow and that is one of the reasons why staff is recommending approval of the variance. It is a very small addition to the house. The applicant has indicated he is trying to do a small addition so he can put the house up for sale and essentially add a second bathroom. Other than that, the applicant is present and he could share his own thoughts with you. Applicant Gary Pebley of 237 West 6th Street, Fremont was present. Mr. Pebley stated it was a shallow lot and the hardship is that it is only 65 feet deep, which prevents them from putting on an addition or anything such as that. However, on the corner of the house does protrude out six feet so the 5 x 5 addition that they want to put a bathroom in doesn’t come out as far as the rest of the back part of the house. Mr. Pebley stated he was just asking permission so he could go ahead and put on the little addition to make it a marketable property. Mr. Pebley stated the biggest thing is that they are not going out past anything that is not already there and according to recommendations they would not be able to get any other variances as this would be it. He also stated if you looked at the drawing provided, the garage is all the way back to the back property line and he wasn’t sure how that was done but they did. Page 1 of 7 Mr. Pebley stated everything is hidden; it is all fenced in and wouldn’t be a hindrance or anything to any of the other neighbors. Moved by Casey to approve the request. Member Winter asked if a hardship was needed to approve the request. Chairman Bang stated the hardship being the depth of the lot and the change in code as it was originally built within 14 feet and this will be 15 feet from the back lot line. Approval seconded by Winter. Roll Call Vote showed all members present voting aye. Motion Carried. • Consider the variance request of Cedarwood Development, Inc. to reconstruct parking lot at 1624 East 23rd Avenue North, with variance to required street yard landscaping requirements. Article 8, Table 8-1. GC – General Commercial District. Planning Director Harkins stated this property is the former Whiskey Creek property as indicated on the staff report. It is being proposed for an Advanced Auto Parts store. Currently the frontage road is in alignment where there is essentially a jog east to west as you cross Lincoln Avenue. The City Public Works Department has asked for additional right-of-way in order to realign that frontage road. Because of that, the City is essentially creating a hardship on the applicant with regards to the ability to layout parking in conformance with the Zoning Ordinance. The applicant can essentially develop a proposal and a new building but to do that with what the City is asking for a right-of-way they have to adjust the parking in a manner that decreases the landscape buffer in two spots. One would be on the west side of the property indicated on the handout the applicant brought and the other is further down on the southwest corner. Harkins stated it is a minor variance request to alter the depth of the landscape buffer but because of the City requiring the additional right-of-way the City has caused a hardship on the applicant. Member Winter asked if the City was taking land from Lincoln or the frontage road. Harkins stated from the frontage road. Mr. Harkins stated the City Engineer could actually provide the amount. City Engineer Boschult stated it was about 7,000 square feet the City is asking for. Applicant Brian Grassa with Cedarwood Development, 1765 Merriman Road, Akron, Ohio was present. Planning Director Harkins stated Cedarwood is the agent for the applicant. Mr. Grassa v illustrated on a drawing where the current frontage road and current property line was located. The frontage road is about a third of an acre that is being proposed to be dedicated to the City. Because of the alignment to match the offset opposites Lincoln it is causing a pinch point with their parking lot in that area. Boschult stated the area involves about 1,500 square acres. Chairman Bang stated it was a variance less than the required 10 foot landscaping. Bang asked if it was determined what kind of landscaping will be proposed. Mr. Grassa stated in the area along the west side on Lincoln they will have at the north and south end of the property the required 10’ but in the area between the two proposed driveways there will be 4’ 8” so it will be a 5’ 4” reduction from the required 10’. Boschult stated this is short by about 2’ of the required 10’ on the new driveway and that is kind of trying to fit a round peg in a square hole. It is about 2’ that he is short. With the width of the lot on the west side the applicant is 5’ 4” short. Boschult stated the lot was created before the new zoning landscaping requirements. Boschult stated the proposed landscaping is more than offsetting what he is deficient. Boschult stated this was similar to what was done at Wendy’s on the north side at 23rd and Bell as there is a big grass area as they couldn’t quite meet some of the landscaping requirements due to the width of the lot. Chairman Bang stated the same thing was done at McDonald’s as landscaping areas were traded. Boschult stated the City is getting landscaping right up front and probably getting more than what he can’t provide on the west side of the building along Lincoln. Moved by Winter, seconded by Hoshor to approve the variance. Chairman Bang asked if there was anyone present in the crowd that opposes the variance. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. • Consider variance request of Brian P. Doerr to construct a fence in the street side yard that is 6 feet in height and is more than 50% enclosed, and allow for construction of a hot tub in the Page 2 of 7  street side yard setback at 1165 North Howard Street. Article 7, Section 707. R1 – Single Family Residential District. Planning Director Harkins stated the applicant provided a number of examples from the area around the property that they felt were similar to what they were asking for. Current code requires that fences be at least 50% see thru. The applicant wishes to go to a full enclosed privacy fence as well as the variance to do the fence construction in the street side yard setback as well as for the height. Staff is recommending denial based on the fact that there is a lack of hardship. The applicant feels their hardship is a privacy issue whereas they could take especially on the street side yard the fence further in and maintain the setback requirements if they chose to. Mr. Harkins stated the applicant was present and could share more information. Brian Doerr of 1165 North Howard, Fremont was present. Mr. Doerr stated as far as hardship goes there are two issues. They want to put a hot tub in an area in which their back door is basically by definition the side yard. To fit the hot tub and a deck in there is one issue and the other issue is to increase the size of the storage shed and to put in an in-ground pool. There is incurable setbacks from the utilities on the back of the yard that they have to keep the pool forward and they want to stay away from existing trees in the back yard. They don’t want to cut any trees down. The applicant stated it obviously is a privacy issue. Their back yard is the side yard because it is on a corner lot. Member Hoshor asked if the deck is already there. Mr. Doerr stated what is there now is a concrete patio with an old wooden fence that they keep their garbage cans in. Mr. Doerr stated they just moved in a week ago. Mr. Doerr stated they are looking at future renovation of a master bedroom which is shown on the tentative sketch provided. Mr. Sawyer asked about the third car garage bay and the sunroom. Mr. Doerr stated that would be on the west side of the house. The applicant stated they don’t want to take any trees out so they want to keep the pool as far west and north as they can and in order to keep the existing out building that is in that corner that already encroaches the easement according to the title, which is now clear. That is one of the things they exempted from the clear title is that building is encroaching the easement now. To increase that, they have to go north. Member Winter asked if they will be moving that building. Applicant Doerr stated they want to increase the size but when they increase it will have to move north as the southern boundary will have to be north of where it is now. Applicant Sawyer asked if when they did that everything would fit. Applicant Doerr stated everything the Board has in front of them they feel fits by code. Member Sawyer questioned the fencing for the hot tub. Applicant Doerr stated by code they need a six foot fence for a pool. Mr. Doerr stated the way the fence is drawn is shown on the property line and not the 15’ side yard setback. Member Sawyer questioned whether all the other fences in that neighborhood were on the property line. Chairman Bang stated not necessary. Planning Director Harkins stated there are a number of older fences in that area that were built prior to the existing code. Sawyer stated the fence needs to come to the south. Harkins stated the applicant is asking for the fence to be on the north side to be at the property line in order to accommodate the hot tub where they propose it be located. Harkins stated the fence would have to be brought in to meet setback requirements. Bang stated the drawing did not show how far the house is off the property line. Harkins stated the drawing was taken off an aerial. Mr. Doerr stated the drawing reflected zero setback so he believes the side yard is 15’. Applicant stated the house is 25’ from the street. Member Sawyer asked if the hot tub could be relocated. Planning Director Harkins stated yes it could be moved. Sawyer stated the other issue is the solid fence. Harkins stated the Board is essentially looking at three variance requests in one application. Member Sawyer discussed relocating the hot tub. Applicant Doerr stated the hot tub is not for guests and that is why the intent is to put it off the back door of the house off the master bedroom. Mr. Doerr stated the master now is upstairs on the south side of the house and the hot tub would be off the proposed bedroom addition. Planning Director Harkins stated one question staff has is that originally it was discussed putting a deck around the hot tub and questioned if that was still the case. Applicant stated that was correct. Harkins asked if there was any reason why the hot tub and the deck couldn’t be closer to the house. Applicant Doerr stated this was a raised patio off the back of the house about two feet or more and he doesn’t feel the grade of it would really allow as there is a pretty hard grade from the house to 12th Street. Harkins stated if they could bring it in a little closer to the house that would give the applicant room to pull the fence back and then he wouldn’t need the variance Page 3 of 7 for the fence but that would mean the hot tub and deck would have to be attached to the house. Applicant stated that is where the garbage cans and everything else are at. There isn’t room to do what they want with the 15’ setback. Member Sawyer stated the garage was removable as they are on wheels so it was hard for him to think of that as a hardship. Applicant stated that is only how big that area is at it is only two garbage cans wide so there is no room for a hot tub in that area. Applicant stated their fence would be harmonious and a new style vinyl fence that you see in some of the newer housing developments. It is a good looking fence and would increase the look of the neighborhood. Planning Director Harkins stated as a point of clarification that the Board could take each issue and vote separately or take them all as a bundle if they wanted to vote on all three requests at once. Applicant Doerr stated another hardship regarding the fence would just protecting their amenities and their property in that it is in the back yard and it is open to 12th Street, wide open to 12th Street, just to secure their property. Chairman Bang asked to meet the code with no variance would the fence have to line up pretty close with the house as he couldn’t tell without any dimensions. Planning Director Harkins stated it would be a couple feet north off the house and still meet code. Applicant stated the hot tub would not fit there with the 15’ setback. Bang stated he was not trying to fit the hot tub in but trying to figure out the distance. Applicant stated this for clarity and size. Applicant stated the back door is more private and not open to the rest of the kids and public that is at their house. The hot tub is private and off the master bedroom. Applicant stated this house is unique in that the back door is to the street and the back door has about a 3 foot wide area to house a garbage can right now instead of what normal back doors have for privacy. Sawyer stated the garbage cans don’t seem to be an issue to him. Chairman Bang stated there are several options of how the addition could be situated and where the hot tub could go. Bang stated if you put a variance to put the fence out there then you would allow for building a hot tub and a deck out there as well and now are actually constructing part of the house out there in the street side yard. Applicant asked if a deck is considered part of the house. Chairman Bang stated if it is attached to the house. Applicant stated it would be freestanding and not attached but just surrounding the hot tub. He stated it would abut the raised stoop. Planning Director Harkins stated it would be considered an accessory structure at that point. Applicant gave an example of other properties but Chairman Harkins stated the applicant was stuck with the new ordinance and also stuck with the uniqueness of that property and that’s what you have to base your findings and fact on. Other examples are nice but if those other examples were to come in tomorrow morning for a fence permit, they would have to meet code requirements. Harkins stated the general application of the Zoning Ordinance is not creating an undue hardship on this property. Harkins stated this Ordinance was adopted in 2000. Applicant Doerr stated they have to keep their pool north due to electrical setbacks they have to stay away from. Sawyer questioned the pool. Planning Director Harkins stated they have to have a 6’ fence per code because of the pool. Harkins stated there is the variance request to go to 6’ in order to match existing codes for pools which is one request. The other is to go completely enclosed with the fencing, a complete privacy fence. That is the second variance request. The other is to do the fence in the street side yard setback. Applicant Doerr asked Planning Director Harkins if there was a specific reason he was recommending denial. Harkins stated privacy is generally not considered a hardship issue that is unique to the lot. If you apply the zoning code as it is now throughout that neighborhood, all of the other properties would have to fall in line. If there were other lots like this, they would have to follow the same requirements. Planning Director Harkins asked the applicant if the proposed master addition has to be that size. Harkins asked if they would be redoing the back door access with a different back door through that master addition. Applicant stated yes. Harkins said if they are, depending on the size of the addition, if they were willing to alter it that might give them an opportunity to move the hot tub in a different spot and get that out of the street side yard setback and allow the applicant to pull the fence back. That would still give them the privacy they are looking for but allow them the opportunity to then actually make everything else fit within the existing codes as far as setbacks. Applicant stated the issue is the privacy of the hot tub from the rest of the house as they don’t want the hot tub being part of the community. Applicant stated patio doors are wide open and they sit up 2’ higher and his back yard is everyone else’s front yard. Privacy is a hardship by everyone else’s terms. Winter asked if the 15’ would only be on the north and everything else could be on the lot line. Harkins stated that was correct. The fence was not an Page 4 of 7 issue on three sides of the property. Applicant Doerr stated there is not a sidewalk on the street side. Planning Director Harkins stated this is one of those many lots in the City where the City has not ordered in sidewalks and didn’t make property owners do it at the time of original construction. Applicant stated a typical fence they would you to drop due to the vision zone but they are far from that on both sides so it isn’t a traffic issue at all. Applicant stated another reason that addition has to come off that area is because that level of the house has everything on that level. It is a very tri-level house and to maintain that level so it is like a ranch with the master so that’s why that addition has to go there. Member Sawyer stated they have a fair amount of green space from the street to the fence without a sidewalk. Chairman Bang stated this has been a concern in the past when a fence in a street side yard where the houses were too close to the street on the side yard and we would allow a fence as long as it lined up with the house. We have encroached in the past but not any further than the original house had. Harkins stated in terms of sidewalk when you look at the bottom of the aerial you see where a sidewalk sits right now in the next property and where the likely alignment would be if they were to pour it in. Chairman Bang stated there were a lot of things that could be designed with a master addition and a hot tub space that could be private. Applicant stated they tried and tried and the elevation of the house isn’t obvious on the drawing but there is nowhere else from that level for the master addition. They stated the west level was 4’ above the back sliders. Applicant stated the hardship was the location of the back door. Planning Director Harkins stated the applicant also feels their other hardship is the fact that the lot is unique because of its topography. Applicant Doerr asked if the 50% open for visual green space or so people can see your yard or what is the intent of private versus 50%. Generally most communities that have that is if there is a security issue from the outside or vice versa that it can be addressed or if emergency services have to come in they have an idea and can see what is going on. Other than that, it would be speculation on his part as he would have to go back from when the Ordinance was developed as to why they put that requirement in. Moved by Sawyer to recommend approval of the fence in the street side yard. There was no second to this motion. Planning Director Harkins stated since there was a lack of a second he would recommend each item be taken separately. Moved by Casey, seconded by Winter to approve the six foot fence. Chairman Bang asked if this would be in the street side yard setback. Planning Director Harkins stated this is just the height issue. Bang stated the height issue is not a separate issue by itself. There are really only two issues. The applicant stated the height is an issue as they have a pool. Chairman Bang stated it isn’t an issue to the Board as it doesn’t matter where you put it as it has to be 6’ for a pool. City Engineer Boschult stated if they are at the 15’ setback, no variance for height is required. Chairman Bang stated if the fence was lined up with the house, it wouldn’t be an issue. City Engineer Boschult stated once you are outside the front yard or side yard setback you can go the 6’ fence. Sawyer stated if the applicant does that he has about 30’ of unused just green grass sitting there with no sidewalks or anything else and not usable. Chairman Bang read the Ordinance which stated on a corner lot a fence built parallel to the street side yard line but set back in conformance with the required street yard setback may have a maximum height of 6 feet, as long as we agree what the setback is. Bang stated as long as the applicant is 15’ from that lot line he can put up a 6’ fence. Moved by Sawyer to approve the request with the hardship being the sidewalk ordinance was never issued. He stated he could not see where the 6’ fence on the property line would hurt much and stated the hot tub could be moved anywhere on the lot and that is not an issue. Member Sawyer stated we have an Ordinance that we are supposed to enforce. Applicant stated they are trying to make it a better property. Member Hoshor stated there was no fence there now. Mr. Doerr stated the neighbor has a fence south and he has a short fence right behind the house that hides where the garbage cans are now. Chairman Bang states it is running parallel to the street side yard, 12th Street, and it is in line with the north edge of the house. Chairman Bang reminded the Board Members of the property owner to the west of the applicant that might not appreciate the applicant having his fence clear out to the corner. Member Sawyer stated even if this property owner doesn’t mind the next one might. Sawyer stated his motion would be to accept the fence out to where the applicant has it drawn to the property line. Page 5 of 7 Planning Director Harkins stated he thinks Mr. Sawyer is trying to say the hardship he sees is the fact that the general application of the Zoning Ordinance would create a hardship because of the loss of the ability to use property particularly on the south, on the north and the northwest corner of the lot if the fence were to be installed within the requirements of the setbacks. Chairman Bang again stated to the Board that you would have that issue every corner in the City of Fremont as every corner lot will have that same issue. Applicant stated this is a double lot. Planning Director Harkins stated this is one lot as it was combined into one lot. Chairman Bang stated the motion is because it is robbing him the use of his property by having a fence. Chairman Bang asked for a second to the motion. No second was received. Planning Director Harkins stated the Board can consider a motion to continue the item at the request that the applicant provide additional information if the Board feels they need it in order to make a decision one way or another. Chairman Bang felt that all the information needed was provided. Bang stated the motion will die with the lack of a second. Moved by Casey, seconded by Winter to deny the variance for the fence to be on the property line. Roll Call Vote showed 4 ayes – 1 nay (Sawyer). Motion Carried. Chairman Bang stated the hot tub becomes a moot point because the applicant cannot put the hot tub there without a fence. Planning Director Harkins stated for the sake of procedure the Board can entertain a motion so each aspect of the request was addressed. Moved by Casey, seconded by Winter to deny the hot tub in the street side yard. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. • Consider request of Fremont Rod & Gun Club to continue, reconstruct and enlarge the non- conforming use Cabin on Site #7 (867 County Road 19) with a variance to the 100’ year flood elevation requirements for stairways on a part of the SW ¼ of Section 13, Township 17 North, Range 7 East of the 6th P.M., Dodge County, Nebraska. Section 557, 558, 1104 b. and Section 1105 c. RL – Lake and River Residential District. Chairman Bang stated the applicant has given him a stamped drawing of the pier locations. Planning Director Harkins stated this is also a certificate that they meet the 100 year flood requirements. Harkins stated the variance request itself is for the stairs and stairwell landing. The conditional use was recommended for approval by the Planning Commission last week. The variance request itself it strictly for the landing of the stairwells to be in the 100 year flood plain. Bang stated this request was similar to the one that we did last meeting and Harkins stated similar to a request that was approved in 2003 on the same property. Applicant Keith Lallman, 2103 North Nye, Fremont was present. Moved by Winter, seconded by Casey to approve the request. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. • Adoption of Board of Adjustment By-laws. Planning Director Harkins stated in doing some research for the Planning Commission and Board of Adjustment and discovered that neither body has any by-laws or rules of procedure. State Statute spells out that you are suppose to have them and we can adopt them any way we want. Harkins stated he wasn’t sure how many had a chance to read these in depth and stated Planning Commission decided to delay this action a month. Harkins stated changes can be made to these as the Board wants and if the Board feels like they need a month to read through it and ask questions, they are more than welcome to. Member Hoshor stated he doesn’t feel they had sufficient time to fully digest the by-laws. Member Sawyer stated he had a suggestion for the very first one in that there should be no time limit for the Chairperson. Several other items were discussed. Page 6 of 7 Moved by Hoshor, seconded by Sawyer to recommend continuing the adoption of the by-laws until the next regular meeting. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. Meeting adjourned at 5:50 p.m. Page 7 of 7