Board of Adjustment

MINUTES BOARD OF ADJUSTMENT SEPTEMBER 24, 2012 - 4:30 P.M. CITY COUNCIL CHAMBERS PRESENT: Chairman Bang, Members Casey, Hoshor, Sawyer and Alternate Member Friedrich, Planning Director Rian Harkins and Secretary Deb Pruss ABSENT: Member Winter Chairman Bang read a statement that this meeting was preceded by publicized notice in the Fremont Tribune and the agenda displayed in the lobby of the Municipal Building and posted online at www.fremontne.gov; and distributed to the Board of Adjustment, Mayor and City Council on September 19, 2012 and is open to the public. Chairman Bang also stated a copy of the agenda was kept continually current and available to the public at the office of the City Planner, 400 East Military and a copy of the open meeting law is posted continually for public inspection located near the entrance door by the agendas. Moved by Hoshor, seconded by Friedrich to approve the legality of the meeting. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. It was moved by Hoshor, seconded by Casey to dispense with the reading of the Minutes of the August 27, 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 request of Jed A. Grovijohn to erect a 6 foot high privacy fence within the front and side yard setback at 1247 East 6th Street, Fremont, Dodge County, Nebraska. Article 7, Section 707 (i) and Article 4, Table 4-3. R2 – Moderate Density Residential District. Planning Director Harkins stated this is a property with two single family dwellings on it, 1247 and 1249. It’s at the corner, as you see on the graphics, at 6th and Howard. It is essentially to do a fence around what would be the front yard for the residence that is at the south end of the lot and so to do the fence would mean we would have to allow for parking in the street side yard setback because right now that’s kind of the way the set up is right now anyway. The occupant has just an open yard that is not fenced and they’re parking right off the street in the street side yard setback. The applicant is basically just trying to provide a little sense of security for the occupants of the house and they are here as well. Staff is recommending approval based on the fact that this is really the only location where a yard could be placed so the fence provides security in more than one way obviously for the occupants of the house. As you read the staff report, staff is also finding that because it is residential this maintains that residential character and allows it to continue. It doesn’t provide a detriment to the surrounding properties or change the character of the zoning district or that part of the zoning district. Applicant Jed Grovijohn, property owner of 1249 East 6th and 1247 East 6th was present. Chairman Bang asked if we know what the setback from Grant Street would be with that fence. Harkins stated that would be right now from the measurements staff has taken it looks to be right about 14’. Applicant stated there is an existing chain link fence there and they are going to take that out and put the privacy fence in Page 1 of 13 on the east side. Bang asked if that was the same location where the fence is now. Applicant stated it was. Bang stated assuming the fence on the east side would not be any closer to Grant Street than the house. Application stated the fence is right in line with the houses. Bang stated it would be as drawn on the picture. Moved by Hoshor, seconded by Sawyer to recommend approval of the request. Harkins stated there might be others present to speak. Christine Ashley, living on the corner of 5th and Grant was present. She stated they haven’t been able to see what the applicant has in his hands and you said it was on Howard. Harkins stated he meant to say at the corner of Grant and 6th. She also stated it was talked about the fence not changing the character. She stated they did not have the opportunity to see this drawing. She just wants to make sure as the neighbor next door is concerned about blocking his view when it comes out. Harkins showed the drawing depicting the existing fence and the proposed fence. Mrs. Ashley stated that wasn’t the understanding of the resident who lives there. She stated applicant had said the fence was going to be out further in the driveway and this resident here at this house is concerned about backing out and not being able to see. If it is as exactly the same as it is now, she doesn’t feel anyone has a concern with it. Applicant stated this was not the proper fence as the fence goes out further than the drawing and then a fence along another area. Harkins stated they are proposing basically to take it out. Ms. Ashley stated the fence continues. Bang stated the existing chain link on the property line does go out further. Ms. Ashley asked if they were suggesting that is going to be 6’. Harkins stated no. Ms. Ashley stated if that is 6’ that would block this driveways view when they are backing out. Harkins stated that would not be a concern. Ms. Ashley stated she did not have an objection as long as it doesn’t follow the whole chain link fence. Chairman Bang stated from what he would understand in the motion is that the 6’ fence would not go east any further than the existing house as it will stay in line with 1247. Ms. Ashley stated she did not have an objection to that. Bang stated there is a chain link lower fence that does run out closer to the street but he wasn’t sure whose fence that is. Bang asked if that fence would come out. Applicant stated that would just stay there. Applicant stated between the two houses on the east side where the existing chain link fence on the east side. It would not come out into the street any further east. It would turn then and go back between the houses to 1249. Harkins stated staying in line with 1247. Applicant stated that was correct. Applicant stated it would be an “L” shape basically as they are coming from the north to the south to the chain link fence and then going west along the chain link fence. The chain link fence sits to the east and would stay there but that would stay chain link fence as that would not be 6’ high. Ms. Ashley stated that was not an accurate drawing. Harkins stated staff basically drew this based on the information he had. Ms. Ashley stated it goes right up to the house. Member Sawyer asked if we had measurements. Harkins stated he did not. Planning Director Harkins asked the applicant to come back to the podium. For the Board’s sake he really wanted to make sure this was correct. Harkins stated the fence on the south side of the lot running from 1249 East to Grant will be…..Applicant Grovijohn stated it will be a 6’ fence coming out from 1247, the little house. Where the chain link fence is now, he is going to take that out. He stated it is basically now a “t” shape as it goes all the way along the property line on the south side and then it goes up between the houses. They are going to take the fence that is on the east side and make that 6’ along there and then they are going to turn and go west with it. They will leave the chain link fence from that point out east that is there they will leave just like it is. Harkins asked the fence run on the east side is how close to the property line. Applicant stated the thought it was right on the property line as he wasn’t sure. Harkins stated that can’t be. Applicant stated they have a privacy fence on the back side and that buts up to that chain link fence. Applicant stated the fence sits on the south property line. He stated there is enough room to park cars in there so its 12’ feet or whatever. Applicant stated there is a concrete pad right there and there is enough room to park cars. He stated he is putting a fence from this house down to the property line and then over. Harkins stated vision clearance triangles for the record will be maintained for the properties to the south. Ms. Ashley asked where the gate will be for that fence because the tenant who is there now told me that his idea is that there will be a large enough gate that he can back a boat in and onto the property. Is the gate going to be the same size as now? Harkins stated he has never been told about a gate. Applicant stated they would put the walk in gate over by Page 2 of 13 where the cars are, just a swinging gate. Harkins stated it would be on the east side on Grant Street and that would be it. Applicant stated yes. Ms. Ashley asked if that is where the present gate is. Applicant stated the present walk in gate is right next to the house on the north end of that fence. Ms. Ashley asked if there was going to be a larger gate to allow for vehicles up there because that is a big concern. Applicant stated it would be just a regular 4’ gate. Harkins stated it was an understandable concern on their part. Member Sawyer asked if they could park a boat in the back yard. Harkins stated with the way the houses are laid out, not without taking out somebody’s yard space. The permit would only be issued with the 4’ gate in mind anyway per the variance request. It was asked whether the fence on the south would be chain link. Applicant stated it is all chain link right now. Harkins asked if that would be changing. Applicant stated yes and no. Alternate Member Friedrich stated from the property line at 1247 coming down to that junction point back to 1249 will be 6’. Applicant stated it will be 6’ this way and 6’ this way. It will be the regular chain link fence that is there out to the street. Friedrich asked about the north side of that coming from the property line at 1247 on the north end of this going back to 1249 is that a 6’ or chain link. Harkins stated the part that runs to the south. Will it be chain link? Bang stated it will be a three sided 6’ fence correct? Applicant stated it will be two sided. It is only going to run along the east side and south of the property line. Chairman Bang stated he was now confused and what is the existing fence. Bang pointed to the line drawn on the picture and asked what that was going to be. Applicant stated nothing. His door to his house was right here so there will be a 6’ fence that will go from here, over to here and down there and that will be 6’ right there and then there will be chain link fence that comes from here out to the street. Bang stated the applicant is going off the corner of 1247, he is heading south until they get this showing even with the south side of 1249. Bang asked if that is where he is going. Applicant stated he would be going to the property line. Sawyer asked if he should have that staked out before approved. Bang asked if this was actually the fence. Applicant stated yes. There is chain link fence there and that is staying as that is not changing. Chairman Bang asked if everyone was clear now. Bang stated this fence was not even going there. Off of the southeast corner of 1247 a fence is going straight south to the property line, back west to 1249’s corner. Member Sawyer asked about parking. Bang stated there is a paved approach that is going from Grant Street up to the property line. Harkins stated that is where they are parking now anyway. Ms. Ashley stated right now there is room enough to park two trucks there on that paved area. Member Sawyer asked if it went over the sidewalk. Applicant stated there is no sidewalk there. Several discussions took place. Chairman Bang stated with that description he asked Member Hoshor if he wanted to amend his motion. Ms. Ashley stated their biggest concern is that it doesn’t have such a wide gate that he can drive vehicles in there. Vern Gray was present and stated he did not oppose where the existing fence is now. He stated maybe it would hide some of the garbage the applicant has back there. Chairman Bang stated the main thing is that the fence is no further east than the east face of the main residence, 1247, that’s running parallel with Grant Street and no larger than a 4’ gate. Harkins stated the Board would be moving to approve subject to the east face of the fence being flush with 1247 and no wider of a gate than 4’. Bang stated that was one option for a motion. Harkins stated the Board could approve subject to the applicant staking it out to the satisfaction of Permitting and Inspections, the Board can move to deny or the Board can send it back and have him come back in a month with some better drawings. Member Sawyer stated if it was subject to staking it out with the Planning Director’s approval to go out and check it with a 4’ gate for sure it could be approved. Chairman Bang asked Member Hoshor is that was his motion. Hoshor stated it was his motion. Seconded by Sawyer. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. Chairman Bang stated it was approved with those stipulations. Alternate Member Friedrich stated it was approved so everyone knows in line with 1247, over to that property line and back with no more than a 4’ gate but the applicant has to stake it out and have the City approve it prior to him putting the fence in. He has to lay the string line out and have Rian or one of the inspectors come out and look at that first before he puts the fence up. Applicant asked if he could remove the existing fence. Friedrich stated as long as he has the string line up where the fence is going to go and where that gate is going to be, that 4’ gate, give them a call and they will come out, inspect it, approve it and then you can build the fence. Page 3 of 13  Consider request of Wade A. Ulmer to erect a 24’ x 40’ attached garage with insufficient side yard setback at 1235 North “H” Street, Fremont, Dodge County, Nebraska. Article 4, Section 4-2. R2 – Moderate Density Residential District. Planning Director Harkins stated this property is just south of Linden and H Street. The residence right now has a detached garage. The applicant is looking at demolishing that and replacing it with an attached garage that is 24’ x 40’ as you can see in the staff report and drawing. The existing garage is already 5’ from the side property line, which is in the interior property line, to the south. The proposed garage would maintain that setback and would not encroach any further on the property line. Because of the way the house sits on the lot, there are very few other ways to do it other than the only other alternative would be to basically turn the garage as you see on the drawing 90 degrees and do a long approach, even longer approach in on a curve. Because of that and the fact that this proposal preserves most of the rear yard, staff was recommending approval. Applicant Wade Ulmer of 1235 North “H” was present. Harkins asked if staff was accurate in the fact that this basically the applicant tearing down an existing garage. Applicant stated it has been torn down already. Harkins stated the applicant is replacing that with an attached garage that doesn’t go any further than the existing garage as the previous garage was sitting toward the property line. He asked the applicant if he was coming any further to the property line than what is already there. Applicant stated he didn’t believe so. Chairman Bang stated the drawing says a 5’ side yard setback is required. Harkins stated he had some questions because it looked like originally the applicant was trying to get about 3’ from the property line so that is why it was put in the staff report. Harkins asked the applicant if he had an idea because when staff measured it we measured what looked like probably 3’ but they weren’t sure. Applicant stated the existing garage is 3’. Harkins stated the proposed garage would be 2’ into that 5’ setback on that side yard. Member Sawyer asked if it will go right where the existing footprint on the south side is. Harkins stated correct. Sawyer stated that would be 3’ rather than 5’. Chairman Bang stated he was assuming the foundation is coming out as well. Applicant stated yes, sir. Bang asked what is the variance…..that they are agreeing to a 3’ kind of or it is going to be 3’. Harkins stated 3’ interior side yard setback. Sawyer asked if that was probably so he can get the proper garage door in there. Applicant stated yes sir. Chairman Bang stated the Board really needs some more dimensions on these drawings. Harkins stated he has had that discussion and will have it again tomorrow. Bang stated it would be helpful to know what the residence is from the property line. Bang asked how big the old garage was. Applicant stated he believed it was 18’ x 20’. Bang asked if the applicant had any other drawings showing how wide this would be, which would be from the corner of the garage to the house, which would be this east face. We don’t have any dimensions here. Applicant stated it wasn’t like that and Chairman Bang stated this isn’t even what we are building. Harkins stated this is what we were given. Applicant stated the garage would be a quarter turn. Bang stated the 40’ length of the garage is now on the property line somewhere. Sawyer asked if the applicant was still staying the same distance from the property lines with what the existing footprint is. Applicant stated yes. Chairman Bang stated he didn’t know if the applicant could get 24’ there. Sawyer stated he had plenty of room in the back and in order to get a 40’ garage. Bang stated he was not worried about the 40’ but was worried about how wide. Bang asked if the garage was lining up with the house. Applicant stated there is a door on the side of the house that comes off of the kitchen into the garage. Bang stated so the garage is going to be set back somewhat. Applicant stated yes. Bang stated and then probably extend further back than the existing house. Chairman Bang stated he didn’t know if we have enough information as he doesn’t know how wide this is going to be. Bang stated there might be a misunderstanding of which way the garage was going to go. Bang asked the applicant if he was trying to get a double car garage out of that. Applicant stated he was. Applicant explained where the garage was going to sit. Bang stated it might not be a 24’ garage. Applicant stated 22’ is what he measured. Bang asked the applicant if he found his property lines. He stated he did. Bang stated applicant stated his garage is about 22’ but Bang was unsure if that leaves 3’ over the property line. Member Sawyer stated he didn’t think it mattered if he stays under the square footage and we stay with the 3’ like the applicant was coming for anyway. Sawyer stated at 22’ x 40’ that is 880 square feet. Bang asked if were over the square footage allotment. Alternate Member Friedrich stated the 24’ x 40’ would have been 960 square feet. Applicant Page 4 of 13 stated the house is 30’ x 35’. Sawyer stated he was under the house square footage. Harkins stated by a couple hundred feet. Sawyer stated the house was 1,050 square feet and he is at 880 square feet. Bang stated the applicant was going to replace the garage that was a single car garage now with a 40’ long addition to the house within 3’ of the neighbor’s property. Sawyer stated the existing building was already 3’. Bang stated the old single car detached garage that was in the back was. Sawyer stated to him in that neighborhood he felt nobody would see the distance back other than the other neighbor. Sawyer asked if the applicant placed his signs out in front of the house. Applicant stated he did. Sawyer stated personally he didn’t see a problem the way he was interpreting it. Bang stated there are a lot of detached garages that are within that 3’ area over there but this isn’t becoming a detached garage but is becoming an addition and going 40’ long and 3’ from the neighbors. Planning Director Harkins asked the applicant if he has talked with either of the building inspectors yet about this. He stated he knew the applicant came in for the variance request. Harkins stated if this is approved his advice would be that he needs to have the conversation with the building inspectors about the potential for a firewall on that south side of that garage. Applicant stated he was told there was suppose to be the fireproof drywall/sheetrock. That was his understanding as to what was code. Bang stated that was between the garage and applicant’s house but the south wall. Applicant stated that was what was told to him. Bang stated if you get 3’ you will have a 2’ overhang on the house and just about be on the property line. Sawyer stated a lot of the older structures only had a 6” overhang too but the 2’ still wouldn’t be over the property line. Applicant stated his original plan was not to even have an overhang so he wouldn’t have the overhang any further over than what the garage was. Applicant stated if he can get an overhang great but if not he was ok with not having an overhang. Planning Director Harkins stated his recommendation would be to go without the overhang so property owners are not put at odds with each other later. Hoshor stated that way melting snow and rain water won’t run in the neighbor’s property. Chairman Bang stated we don’t know the location of the other neighbor as it could possibly be about 5’ away from the property line on the south. Sawyer stated the neighbor didn’t seem to have any building structure back there. Chairman Bang stated a lot of it will be along their house. Again, we’re not going way back there. Member Sawyer asked if he talked to the neighbor about the garage. Applicant stated it has been briefly discussed. They actually just bought the house and they are cleaning it up to flip it. Bang stated the code is 5’ correct. Bang stated for a motion we have to come up with a hardship. Planning Director Harkins stated that because of where the house sits, staff looked at this from the perspective of the hardship being even with the original drawing as we had it that the only way to do any kind of expanding would be to basically either remove and have the driveway stay in place or still be utilized was to lay the garage or at least one edge of the garage along that 3’ setback on that south property line. Primarily again because of where the house sits in relation to the rest of the lot. You have a very deep lot at 140’ and still very narrow at 70’. Moved by Friedrich to recommend approval of the request with the fact that the garage not impose any further than 3’ off the south property line with a firewall on that south wall and no overhang. Member Sawyer stated the firewall criteria is all part of the building code. Harkins stated the firewall on the south side is what he is asking for and that is something the Board can impose as a condition. Alternate Member Friedrich stated you have to have one per code between his house and his garage but per code you do not have to have one between your garage and the neighbor’s residence. Bang stated you do. If you are within certain feet, it is required. Sawyer stated if the applicant took the footprint where it is at and went back further, he probably wouldn’t need it but by bringing it up alongside the house, it is needed. Friedrich stated if he is bringing it in without a doubt he would have to have it on that south wall. No overhangs and no further than that 3’. Sawyer stated the only place you are worried about overhang is on the neighbor’s property line, which is the south. Bang stated the hardship being the 70’ narrowness of the lot. The owner’s wife was present. She stated her hardship, not so much his, is that the applicant leaves for military and the last time he left someone broke into the garage. She stated her daughter and she were inside. He is not home. She would feel more secure if it is an attached garage. Also, the less driveway Page 5 of 13 they have if they can move it up and have the garage they want, she won’t have to scoop as much because when he left there was more than she could handle herself. Chairman Bang stated a motion was made. Member Sawyer seconded. Roll Call Vote showed 4 ayes – 1 nay (Bang). Motion Carried.  Consider request of Investors Unlimited, LLC to erect a duplex with insufficient lot width at 1521 West Iowa Street, Fremont, Dodge County, Nebraska. Article 4, Section 4-2. R2 – Moderate Density Residential District. Planning Director Harkins stated the applicant has a lot at 1521 West Iowa Street. It is in the northwest part of the City. It is R2 zoning. The lot right now is only 65’ wide. Most of the houses in that area are not that narrow and the hardship again is the fact that you have a very narrow lot in terms of width. Applicant has 110’ of lot depth so those setback standards could be met. The problem is even to do a duplex or let alone a single family home presents a hardship in the fact that you cannot build a typical duplex or single family residential home without going very narrow, very vertical, very quick because of the lot width. Harkins stated that is not economical in the eyes of some but the applicant feels they can provide a structure on the property with 6’ setbacks on the side in this zoning district and still maintain the front and rear yard setbacks. Chairman Bang asked what the required setback is. Harkins stated in R2 it is 5’. The problem is this zoning district has a minimum lot area for duplexes for example of 8,000 square feet. The minimum lot width for a duplex is70’ so the applicant is 5’ short, hence, the variance request. The applicant is meeting side yard setbacks. It is still only 6’. It’s not a lot but it works but again because of that minimum lot width not being met, we have a variance request. Bo Borisow, owner of Investors Unlimited, LLC, of 1220 Timberwood Drive in Ames was present. Mr. Borisow stated they owned the lot for about five years now. He bought it was the intention of building a duplex but then found out he couldn’t later. In that particular neighborhood, it’s just not economically feasible, no economically viable to build anything other than a duplex. You’re looking at a neighborhood of houses that are between $90 and $110,000 houses. Borisow stated if he was to build a new house there he would just be throwing money down the toilet basically because you could never sell it for what you have into it. The only other thing he could build there would be a duplex and he felt it would be a welcomed addition to that neighborhood. Borisow stated there were several duplexes in that neighborhood now and it is zoned R2 and it meets all the setback requirements. There has been a lot of rental property in town and there is definitely a need for nice rental property in Fremont. It would be a welcomed addition to the neighborhood, increase the tax base for Fremont. Harkins stated aside from the fact that it financially is more convenient to do a duplex, which profit, motive, convenience aren’t fact that they can base a decision on, the variance request is basically to allow for the duplex because of the narrow lot. Borisow stated this was correct. Harkins stated the lot was platted with that width correct. Borisow stated that was correct as that particular part of town was probably platted 40-50 years ago. Alternate Member Friedrich stated we didn’t have to worry about the side setback but the variance would be from the 70’ wide lot down to 65’. Borisow stated he would basically build a smaller building. Borisow stated it was an R2 District already and restated there were several duplexes in that neighborhood. Harkins stated on the one aerial they provided with their application they have highlighted where duplexes sit versus single family residential structures in relation to their lot. Chairman Bang stated it was zoned and platted that way for a reason. Bang stated the code states 70’ to keep people from putting duplexes on there. Harkins stated it could have very well just been depending on who was doing the platting that could have been what was left and they just checked into a lot. Member Sawyer asked if there were any other 65’ lots. Borisow stated he couldn’t tell them. Harkins stated they weren’t finding any when they went looking through there. Jarod Borisow, 2543 North Laverna, applicant’s son was present and stated he reviewed the original plat and that is the only 65’ lot in that area. He stated it is the narrowest lot on the plat. Sawyer stated that lot has been empty for some time. Borisow stated he would like to get something built on it. Harkins stated the lot is in the middle of the block. There are no easements. Bang stated you are going against the code book of being that all lots for duplexes have to be 70’. Harkins stated this is one of the reasons why the Page 6 of 13 members exist as a Board. When you have issues that are unique to that property that create an undue hardship and when you apply the standards as they are uniformly across that zoning district it creates this issue. Chairman Bang stated there but he could go around Fremont and find other 65’ lots. Does that mean he can put duplexes on them? Applicant Borisow stated if is zoned R2 and it’s the same situation why not or would you rather have a vacant lot. Bang stated the trouble is if it is a typical repeatable thing then the Board cannot grant a variance for that as they would need to change the code so we can’t change the code on their Board. Bang stated once they set a precedence saying ok it says 70’ but 65’ is o.k. they have to be careful going down that path. Borisow stated he could understand that but there are a lot of cases where a variance is the reason this Board is here. It’s not all black and white all the time. Harkins stated that his words should not be taken too far. That was not a blank check. Number one this is also why you have a member of the Planning Commission that sits on the Board so if a pattern is seen the Board can look at him and tell him to take it back to the Planning Commission and make some changes. Harkins stated that is also why we have a process if we have a situation that becomes unique. Sawyer stated there are some narrow lots in town but if the area isn’t zoned R2. Harkins stated that was correct as there are a lot of areas with narrow lots that are often zoned R1. Harkins stated that was an issue they will try and look at as they develop the new Development Code. Member Sawyer stated the hardship is when they bought this that was all that was left. Borisow stated the hardship to me the economic viability. Harkins stated that couldn’t be the hardship. Harkins stated in a sense if you apply the rules uniformly you essentially subject the applicant to a regulatory taking because you are not providing means of use of the property or a viable economic use of the property. Chairman Bang stated he disagrees a little bit in his statement that due to that lot size nothing else could be built there. Harkins stated he didn’t mean nothing else but there are very particular ways you would have to do it. You would have to go vertical pretty fast. Bang stated Harkins words were “the only way a dwelling unit of any type can be built is if a variance is granted”. Bang stated if that is not the only way. Harkins stated you would narrow it down but you would have to go vertical and that would be as far as the character would be out of character for that neighborhood where this maintains the character of the neighborhood while allowing development to occur on the lot in spite of its uniqueness. Sawyer stated this would blend in with the neighborhood. Bang asked if there was a duplex to the one side of this. Borisow stated there was. Bang stated that helps his cause a little. Moved by Sawyer, seconded by Friedrich to approve the request on the ground that he can’t acquire the additional square footage from the sides to make the 70’. Chairman Bang stated it was a very narrow lot. Is it 52’ wide or 53’ wide. Borisow asked what the plat showed. Borisow stated he had it figured where they would have a 6’ setback. They bumped the plan out just a tad so it will be a 6’ side yard. Jarod Borisow stated 53’. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried.  Consider request of Bosselman’s to erect an additional pole sign in excess of the allowable sign budget at 3441 East 24th Street, Fremont, Dodge County, Nebraska. GC – General Commercial District. Article 10, Table 10-3. Planning Director Harkins stated after the applicant submitted their application and everything was printed and sent out, they made a request to go larger than what we originally put in the staff report. Harkins stated he will let the applicant explain that. Basically they are adding another roughly 35 square feet to their request, 32 to be exact. Harkins stated they are going from the originally proposed 55 ½ square feet of additional signage beyond what is allowed in the sign budget to the 55 ½ plus 32 square feet for a total of 87 ½ square feet. The current property is basically where the Menards sign sits on East 23rd. Bosselman’s is proposing a new convenience store at the location; however, the seller of the property is unwilling to move their sign so the seller has essentially created a hardship for the buyer. Menards right now has the lot with that sign on it. That existing sign takes 300 square feet. As indicated in the staff report, GC zoning allows for 700 square feet so the applicant is essentially short on their sign budget because of something that is already there. They are trying to go about getting clearance for their signage the right way in the lawful manner without unpleasantries happening to the Menards sign. They are willing to let that sign stay there but to do that they need the additional variance for the sign budget. Page 7 of 13 Member Sawyer asked if they would be going over 87 ½ square feet over the total 700. Applicant Gus Patsios, 419 South Harrison, Grand Island, NE representing Bosselman’s was present. Mr. Patsios stated 87.5 would be the additional above the 400 allowed. Sawyer stated if they had the 300 plus your sign it would be 87 ½ feet over the square footage total. Applicant stated there were a couple of things he wanted to add to what Rian was saying. They are looking at doing a Pump & Pantry C Store but with that they also are looking at doing a restaurant too. There has been several franchises that they are looking at with Huddle House is one and he could name off a couple others. That is where the extra signage came in after the fact because they are not sure what restaurant they want to put in there. He didn’t remember how many seats they had scheduled originally. He thought it was maybe 60 seats. They threw the Huddle House thing out as they are still kind of juggling with some franchises coming in there and they may also do their own thing. They also do Subways, which he is sure Fremont has plenty right now. They are looking at doing a real nice development there. With the Menards sign being there and he believes it is through an easement that it is there. If he remembers correct when they platted that originally that they actually had that sign put in on that lot as an easement if he was not mistaken. There is an electrical easement that runs through there to control it too. Harkins stated the utility easement is there yes. Mr. Patsios stated the sign easement is there too because there is a chunk taken out of the parcel that’s for that sign easement. He stated he was sure they had to have an easement there if they don’t own the lot. Harkins believed that was correct. Applicant stated with that easement there they took out 300 square foot of the 700 square feet that is available for that corner lot. They wouldn’t be here today if that sign wasn’t there. Applicant stated the Board should have a design and everything that they put together except for the second one that he emailed Rian that shows a little restaurant sign on the south side, which is the additional 32 square feet. He didn’t know if Rian had a chance to show the Board. Harkins stated he didn’t. Applicant stated they had a Max’s Diner in Altoona, Iowa, Salina, Kansas, Big Springs, Nebraska and Grand Island, Nebraska. That sign may not be what it actually says. He stated the square footage is the issue and not the graphics at this point. Chairman Bang asked the applicant if he foresees that changing again. Applicant thought let’s just get it done and be done with it and hopefully we can go ahead and whatever is needed. Applicant stated the east elevation towards number three is actually the south elevation. Harkins stated that is what would be seen from 23rd Street. The Pump & Pantry would be facing to the west. Applicant stated there should be a site layout with canopies and he apologized for the mix-up as he thought they had the corrected version. Member Sawyer asked where their gas price signs would be. Applicant pointed out on drawing. Applicant stated one of the things he asked Rian for a point as he deals with it all the time not only in Nebraska but other cities and other communities around the United States is the Menards sign to him is what he considers an off-premise sign and with it being an off-premise sign he knows the City of Fremont doesn’t acknowledge off-premise signs, although it is on a state highway and the state does recognize off-premise signs, that sign is just a hardship for them to even make this happen. He doesn’t think they are looking at a lot of signage for what they are trying to do. They have to brand their canopies, displaying their fuel prices is something that they are regulated to do and you can’t just put up a gas station and not display their prices. He doesn’t know if there is a law saying they have to but he has been told they have to. There is square footage that they are using that they would rather do something else with as promote specials or things like that. He thinks just looking at this the 87.5 square feet that they are asking for is what’s over their 400 square feet that they are allowed to use on that lot. Member Sawyer asked if that will be used up on these two signs. Applicant stated it is the whole lot. He stated that Harkins mentioned pole signs. Applicant stated they were allowed two pole signs. It is just the total square feet for the budget of that lot. It is irrelevant. Harkins stated as the Board is aware, each lot is allowed x amount of square feet on signage and this is where the problem lies. Member Sawyer stated he had been through that himself. Applicant stated since he was on a corner lot they get two street frontages. You take those two street frontages and calculations and there is your budget. Unfortunately the Menards sign is there. Applicant hasn’t called anyone at the state to ask them but if he is not mistaken the highway does come in and that is state regulated because they couldn’t do a turn in from there. Planning Director Harkins stated the state has controlled access along 23rd back to that intersection and so the applicant is in that controlled Page 8 of 13 access. Applicant stated he hasn’t done anything at the state but as far as he is concerned one municipality overlays the other and so on but he thinks there are a couple of issues there more so just than the one of the hardship of the applicant having signage. Member Sawyer stated for the state the applicant has to have the Board’s approval first normally. Applicant stated he is just classifying a sign and how it could be looked at as an of-premise sign more so. It could be a billboard. With that being said, in other communities you can have a billboard as long as it is not advertising anything on property and still have your amount of signage. Applicant stated you can’t have a billboard and then have x amount of signage as it is considered as an off-premise. Sawyer stated it was a nice setup; it would be a nice improvement to Fremont and doesn’t think anyone here is against it. We just want to come together and find the right thing for the applicant. Applicant stated he started thinking about the restaurant and they were going to put a sign in there they better figure on getting a sign on there now on that elevation before they come back later and say they forgot. He really didn’t want to do that to the Board and put that stress on the Board. Alternate Member Friedrich asked the applicant about the elevation drawing and stated the only restaurant signage will be on the pole sign. Applicant stated that was not correct as he was proposing the additional 32 sq. ft. Friedrich stated the pole signs aren’t getting any bigger just adding the additional 32 square feet on the GC elevation. Applicant stated it was the 4 x 8 square box drawn on the handout. Applicant stated where it is going on the elevation hasn’t been determined yet. Harkins stated it will be on that building face on the south side. Applicant stated if he was not mistaken they get 20% of the façade so he knows that is well within that too. He stated they were not asking to go outside the box there. Applicant stated actually if you look at the building there are not a long of signs on it as it’s the canopy that gets them and this is their new prototype so Fremont would be the first one for this particular look. Member Casey inquired about using the Menards sign as a hardship. Harkins stated there was an existing issue on the property that creates a hardship for them because if you apply the rules to the applicant they can’t meet code because of something that already sits there. That interferes with their ability to meet code. Applicant stated they have looked at the other lots out there that are available but for their business it is really important to have location but they ran it through their due diligence and that is the lot they want. They have looked at others and it is just not panning out. Sawyer stated this operation looks more like the passenger car and the pick-up than the semi. Applicant stated they have diesel and will have a second island but the turning radius getting in and out of there will not promote truck traffic. He stated they also would not be pouring their concrete up to 9” either so he really is not preparing for it either. Harkins stated it would be very difficult because of where the access points in to that property are. Applicant stated for the diesel burning four wheel traffic they will be available for them there. It would be tight for a big truck. Moved by Casey, seconded by Sawyer to approve the request due to the fact that there is some existing signage on the property that doesn’t belong to the applicant. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried.  Consider request of Patrick C. and Bambi Cleary to park in front of a residence in the required front yard setback at 437 North Downing. Article 909 b. R1 – Single Family Residential District. Planning Director Harkins stated the Board had the same request a year or so ago. The applicant isn’t here but their counsel is. Staff met with the applicant last Thursday. Basically the variance request was denied previously based on the hardship just being one of convenience but the applicant was able to do the driveway approach and add the detached garage, which is illustrated on the aerial. The original request was to do all of that and then convert the garage that was attached to the house to living space. The applicant is looking at still trying to do that. When staff met with them last week, it was discussed about taking out some of the concrete in front and not allowing parking on a permanent basis in that setback but just allowing it for the sake of being able to drive through and park there temporarily at times when they have large functions. If that is what the applicant has in mind, staff is more open to that. If the Page 9 of 13 applicant or their counsel is thinking being able to park there all the time, then staff still recommends denial. James Davis, Attorney at Law, was present representing Pat and Bambi Cleary and stated this was regarding 437 Downing. Mr. Davis stated the issue is they do want to do this build-out of the garage into more living quarters with the house. They have a triple car garage in the rear and rather than removing the entire driveway as they were originally directed to do, they would like to cut back the driveway from the front of the building but leave a double lane and a double curb cut for the three car garage they have so they would at least have the ratio of 3:2 rather than 3:1 on the lanes and the exiting to the street. He knows there has been an incident in the past that it has just created a bottleneck and on one occasion with a medical emergency just couldn’t get out quick enough. Mr. Davis showed the Board an illustration of the existing drive back from the house and how they would cut it. He stated right now there are two lanes and he believes there is a double curb cut now and the requirement they are asking a variance from is that the entire slab be removed and that one of the two curb cuts be removed as well. He stated they are asking to remove part of the driveway and leave the double lanes and the double curb cut to facilitate this three car garage. Member Sawyer asked if the three car garage was there already. Applicant stated it was in the back. Chairman Bang stated the driveway was in going back but their curb cut is not for the new driveway. Harkins stated that was correct. Bang stated right now it is a s curve. Harkins stated when staff met with the applicant last week, the applicant was o.k. or seemed to be o.k. not having the new approach put in and maintaining the one that was there and just swinging around to go around. They just wanted to be able if there was a large gathering of people at their house to be able to have the opportunity to park one of their vehicles in the front if they had to get out for any reason. Chairman Bang and other members discussed how you police, regulate or control the parking issue. Harkins stated their words were that they didn’t want to make it a permanent parking spot. Bang asked if we were saying that they were now not requesting to have this widened approach or the owner is still requesting this. Harkins stated what they shared last week was that they were o.k. not having it so the fact that their counsel was sitting here asking for it, staff is in and of themselves a little confused. Harkins asked Mr. Davis do you or do you not want the approach? Mr. Davis stated as he understood he was flexible on whether he had the single or double curb cut. He is asking that he not be required to remove the entire existing slab of the existing driveway. Mr. Davis asked when Mr. Harkins says approach does he mean the curb cut, the drive or both? Bang stated he has not converted the existing attached garage into a family room yet and that is where the issue is. Mr. Davis stated if there was a car parked in the driveway so they wouldn’t have to move it to get any of the vehicles out of the garage or the back. Bang stated if the applicant didn’t have the second approach and you have a car parked at the 19’, if that is accurate, he doesn’t think they will get by it without the other approach. Harkins stated maybe the tradeoff is that the Board allows the approach and not allow that parking in the front setback. Harkins asked Mr. James if that would be something that his client would be open to. Mr. Davis stated he believes so. Harkins stated the applicant could widen the approach but still leave that driveway removal. Bang asked why a variance was needed to have the widened approach. Bang stated the issue is from his understanding is the existing garage that they would to make into a family room or dining room or other use. Bang stated in order to do that, the driveway has to come out. When the overhead door goes, that driveway has to go. That was the discussion the last time the applicant was before the Board. Harkins stated the applicant wants to maintain that parking and maintain at least part of that concrete that is there currently in front of the attached garage. Alternate Member Friedrich stated if the driveway was opened up and the applicant only does a little bit of what applicant is showing as proposed driveway and removal, there is still space available to park there. That will turn into parking in the front yard, not temporary. How can the Board regulate temporary? Member Sawyer stated as soon they do that, the neighbors will want to add another parking stall and they will be parking in front of the house saying if he can do it, why can’t I? Bang stated he doesn’t believe there was ever an issue with adding the approach but is just the other one coming out. Harkins stated staff cannot find anything in the minutes indicating one way or another. Bang stated he did not feel this was heard in 2001 as the staff report has indicated. Harkins stated it would seem logical they didn’t put it in based on previous decisions of the Board and recommendations of the Planning Commission at the time. Alternate Member Friedrich stated he didn’t know why the Board had to leave any of the driveway. Member Page 10 of 13 Sawyer stated here was another case that the Board didn’t have measurements. How wide is the driveway, the new one that they put in? Harkins stated it was he would guess about 15’ and it goes pretty much to the fence line. Several discussions were going on at once. Chairman Bang asked that the Board discuss together. Harkins stated the topic on his side of the room was asking the question if there was a way to go ahead and allow them to have the additional approach but pull the concrete out and essentially let them have the approach that they desire, still can have easier access in and off the property and can that be done without granting a variance for parking. Harkins stated the answer is technically is yes. It is just a matter of the applicant wanting the additional parking space in the front. Mr. Davis asked if the applicant doesn’t need a variance if they removed the concrete almost all the way to the sidewalk. Harkins stated if they pulled the old driveway out all the way to the sidewalk they could go ahead and get their approach permit and the Board could give a variance for that if they felt it was necessary to do so an d then his client could have their driveways with the new approach that is there or a little wider approach. Most of the concrete would come out and they could do the addition or the conversion of the garage to the dining room without any problems. Mr. Davis asked if the idea was to keep it a single lane so people are not encouraged to park there or block the driveway. Harkins stated that was correct. Chairman Bang once again stated there has to be one conversation otherwise they are not keeping together. Harkins stated that was part of the conversation on his end of the room that he picked up on. Bang stated we had two here, one over there and we are just exchanging recipes up here. Bang stated he can have a double car driveway as long as the existing garage stays a garage. Harkins stated that was right. Bang stated you can have a widened driveway as long as the other driveway and the approach goes beside the house. Harkins stated the existing attached garage they want to convert into a new dining room. Bang stated that was correct but the Board didn’t have anything before them on converting anything. They are not asking for that. Harkins stated that was right but was the catalyst to the request. Bang stated right now without doing anything to that existing garage they can take out the rest of that approach and have a double wide driveway. They can move that approach over correct? Harkins stated they could but if they try and convert the existing attached garage then everything else has to come out to the sidewalk. Bang stated the curb cut has to be filled in as soon as that garage door comes out. It will then be a single car approach. Harkins stated the Board could grant a variance to allow the double wide as long as there would be a very quick narrowing once it comes from the approach back to one lane of traffic to go back to the detached garage. There is something like that that could be done. Sawyer stated that was what he was wondering if the applicant could not go clear up with the cutback but where he would come up and bring that over he could even do that without making a wider approach. If he did do a wider approach, as long as he kept that narrow enough he shouldn’t be able to park a car there or anything over the sidewalk and so on. Sawyer stated he didn’t have distances there. Bang stated what you would end up with would be an “s” curve in front and pulling in or backing out might be even more difficult. Harkins stated that is why he was talking about the double approach and then bringing this in quickly to the single lane so the approach would be open so you weren’t creating a bottleneck right there at the curb cut. Sawyer stated it would definitely be a parking spot. Alternate Member Friedrich stated to the Planning Director that the only thing Harkins was basically having them save the expense of moving that south approach/curb line. Member Sawyer stated they could not approve due to financial savings. Harkins stated that was correct but basically for the sake of access in and off the property the Board could grant that variance without having to grant one for parking in the front yard setback. Member Casey stated the question before the Board is can they park in the front yard setback. Bang stated that was correct as that is the variance requested. Casey stated it didn’t really have anything to do with the approach. Harkins stated that was correct. Mr. Davis asked if it was already legal to park in the front yard setback if there is a slab. Harkins stated if that stays garage. That is what the Chairman was referring to. Mr. Davis asked what ordinance corrects the garage with the slab being in front of it. Bang stated you can park in front of a garage but you can’t park in front of a residence. Harkins stated if the applicant converts the existing attached garage to a residence, that no longer becomes an applicable parking spot. Mr. Davis asked if they could reference that as the ordinance he read just said you could park in the front as long as it was on a slab, it wasn’t more than an 8’ tall vehicle and as long as it didn’t go into the right-of-way. Bang stated it was Article 909 b. Page 11 of 13 Member Casey questioned the detached garage. Planning Director Harkins stated he had no idea how the detached garage was allowed as it was well before his time. He pulled the minutes and the notes from the last application and basically got the same information that was discussed here. Chairman Bang quoted the ordinance stating a driveway that is outside of an enclosed structure within the front yard setback of the enclosed structure. Mr. Davis stated an enclosed structure must mean parking structure. It can’t be any structure but has to be a parking structure. Chairman Bang stated it could be a carport, lean-to, etc. Bang stated in other words, anybody can’t park in their front yard and you can’t pave your whole front yard. Harkins stated staff now was referring that was probably one of the reasons why the variance request was denied previously. Bang stated it has come up before where people have changed and converted garages, added on to them and they have to move the driveway over with the addition. Mr. Davis asked if there was any kind of allowance for the number of stalls in the parking structure and the width of the curb cut or the drive to it? Chairman Bang stated he didn’t have his Ordinance book with him but from his understanding the way it is right now with having a driveway that can go alongside and around the property or to the back of the property that justifies there being a curb cub and allows the curb cut to be all the way straight out to the street. You have a single car garage with a double car driveway as long as one side of that allows paving alongside the garage. Bang stated if you have a single car garage you can only have a single driveway the width of the garage. Mr. Davis asked with a triple car garage in the back it doesn’t make any difference. Bang stated they can drive around. Alternate Member Friedrich stated the only issue in front of the Board is whether parking in the front yard setback is allowed. Bang stated that was correct. Moved by Friedrich, seconded by Casey to deny the request. Planning Director Harkins restated the Board was recommending denial based on the fact that there is adequate parking on the property and access on and off the property. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. Mr. Davis asked if he was to understand then that the applicant can remodel the inside if there is no parking in the front. Harkins stated that was correct. Chairman Bang stated when the garage goes the paving has to go. Mr. Davis asked for clarification does he understand that the concrete has to come out all the way to the street or can the applicant do the design that he and Mr. Harkins were talking about where they use the existing drive but have just a single lane that goes at an angle. Mr. Harkins stated the Board voted to take it out all the way to the street. Chairman Bang stated it should go out straight. The new drive should have its new approach put in. Mr. Davis stated move the curb cut over in a single one. Bang stated that was correct. Planning Director Harkins stated the Board has been given copies of the Transportation and the Comprehensive Plan. Staff will be making reference to that as part of our findings of fact for staff reports as well as what the Zoning Ordinance says. Harkins stated the other item that was distributed was a hard copy of the information given to the Planning Commission at a Study Session on Board of Adjustment and Findings of Fact last week. That was what previous emails had indicated inviting you to. That was given by Dave Ptak. These are hard copies of Mr. Ptak’s notes for review. Mr. Harkins informed the Board if there were specific items to follow-up on or do an in-depth study on, Harkins stated a study session could be done here or in a joint meeting with Planning Commission in the future. Chairman Bang inquired about the changes that were discussed with the Board bylaws and if they were going to take place. Harkins stated in terms of the recommendations from Planning Commission. Bang stated the Planning Commission hearing the items and then there were some changes about who could make motions, who can second, etc. Harkins stated the Board approved those bylaws a few months ago back in April and May and so those are in effect now. Harkins stated those are set to go into effect starting in January as far as leadership and those types of things and the other part as far as the requirement in the Ordinance taking out a recommendation from the Planning Commission regarding variances was approved by Council and went through the three readings. That is no longer a part of the Page 12 of 13 Zoning Ordinance. Harkins stated that puts even greater emphasis on doing their homework as they are the sole bodies. Bang stated he thought there were some other small changes too such as who can make motions. Harkins stated that was part of the by-laws. Bang asked if that changed or does that have to go through some readings. Harkins stated the changes were made based on the input received from the Board so an updated version will be done that will be brought to the Board this fall and will give to the Board so they will have in their hands when the Board starts in January with everything. Bang stated there were several changes in regards to what the Chairman could and couldn’t do and he didn’t know if those were in effect or if those had to go through some other in order for them to be adopted. Harkins stated those didn’t have to go anywhere else for those to be adopted as the Board just adopts their own by-laws and rules. Meeting adjourned at 6:09 p.m. Page 13 of 13