Board of Adjustment

MINUTES BOARD OF ADJUSTMENT OCTOBER 29, 2012 - 4:30 P.M. CITY COUNCIL CHAMBERS PRESENT: Chairman Bang, Members Casey, Hoshor, Sawyer and Winter, Planning Director Rian Harkins, Chief Building Inspector Don Simon and Secretary Deb Pruss ABSENT: None 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 to approve the legality of the meeting. Planning Director Harkins stated as a point of order that actually under State Statutes a motion does not need to be made to approve the legality of the meeting once you have identified that the meeting is done in accordance with the Open Meetings Act. The Board is then free to move forward with the agenda. Chairman Bang asked if this was a new rule. Harkins stated it was one that has been clarified. Roll Call was taken. It was moved by Hoshor, seconded by Casey to dispense with the reading of the Minutes of the September 24, 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 Brad’s Electric, Inc. to allow barb wire fencing at 330 Sheryl Avenue, Fremont, Dodge County, Nebraska. LI – Limited Industrial District. Planning Director Harkins stated Article 7, Section 707 of the Zoning Ordinance lists barb wire with regard to it being allowed in General Industrial. The property in this matter is a Limited Industrial zoning classification. It is at essentially the corner of two streets. It is in the northwest north central quadrant of the extraterritorial jurisdiction. There is industrial/heavy commercial land uses surrounding it generally with a corner of residential starting to get toward that area as well. The variance request is to place barb wire on top of the fence. Staff allowed the applicant to get a permit to do fencing without the barb wire up to this point with the idea that if you approve the variance they can go ahead and put the strands in, otherwise they would leave the fence as is. Applicant is essentially trying to fence in their yard for storage and they feel this is a security issue for them and it would help provide greater security. Harkins indicated his staff report mentions the contractor-type yard to the northwest has barb wire on their fence. Staff can’t seem to find any records of when that was done so it may have been done without a permit. The applicant, as stated in the staff report, as well feels the lack of security of not having barb wire presents is a hardship to them. Because of the fact that it is an isolated area away from most other LI properties of this nature even though that zoning classification extends farther south, staff is recommending approval based on that hardship of security and its isolated nature compared to other Page 1 of 4 type of LI properties that have closer access to the roads. Staff doesn’t feel granting the variance proposes a detriment to the zoning district as a whole and this is one of those types of administrative issues that staff is looking at as we update the new zoning ordinance to potentially change or allow some variation on. Nick Bradrick, Vice President of Brad’s Electric was present. Member Winter asked if they stored copper and other supplies in there that everyone would like to steal. Applicant stated they store aluminum and have a covered trailer, a boat and a flatbed trailer there. They also have caught several people in the lot stealing stuff in the past six months and they would just like to put the barb wire on there as an extra security option. Moved by Winter, seconded by Hoshor to recommend approval of the variance with the hardship being the lack of security and police in that area and the isolation of the property. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried.  Consider request of Marsha Sampson to erect 12’ x 16’ addition with insufficient rear yard setback at 1406 West 9th, Fremont, Dodge County, Nebraska. R1 – Single Family Residential District. Planning Director Harkins stated some double checking was done and staff discovered this is actually zoned R4 – High Density Residential District. The setbacks are somewhat similar. The applicant currently has a deck as you can see in the staff report illustrating a graphic showing the sketch of where they are proposing to put the addition and remove the existing deck. The existing patio and lot lines are shown and the dimensions from where the proposed addition would be to the rear lot line. Currently the zoning ordinance requires a 20’ rear yard setback. This is a proposed 12’ x 16’ addition basically taking in the footprint of the existing deck and the additional space. Because of the shallow rear yards in a lot of properties like this, particularly in this location, you can look and see it is a corner lot so things get scrunched down by a bit. The applicant does have a 30’ front yard setback that they meet but that doesn’t get them totally where they need to go in terms of moving the rear yard setback down. Because the proposed addition doesn’t go any further or encroach any farther into the rear yard setback than what is already existing, staff has been recommending approval in this case. Staff doesn’t feel that it changes the character of the district or it is a detriment but because of the shallow nature of the lot in the rear as far as the layout of the house in relation to the rear yard, there is a hardship there. If they would be going any further than the existing footprint, staff might have a different opinion or different judgment on this one. Applicant Marsha Sampson of 1406 West 9th was present. Mrs. Sampson presented a note stating they had spoken to neighbors affected by the proposed variance. This was signed by five neighbors. Moved by Winter, seconded by Sawyer to receive and place on file. Member Winter asked how much room the applicant had on the north. Planning Director stated he didn’t have an exact distance but there is a good 5’ to 10’ separation from the property line to the next house so that was another factor is staff determination. Mrs. Sampson stated they would be about 10 or 11’ from their lot line. Chairman Bang asked if they would be removing the existing deck. Applicant stated they would be removing the existing deck and would be adding on to their kitchen and dining area. Member Hoshor stated for what it is worth it is the same distance as the patio. Applicant stated they would not be going any further than what the deck is already. Chairman Bang asked if there would be a deck at all. Applicant stated the deck would be gone. Moved by Casey, seconded by Sawyer to recommend approval of the request. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. Page 2 of 4  Consider request of St. Patrick’s Catholic Church to allow lot split with insufficient street side yard setback at 4th & C, Fremont, Dodge County, Nebraska. R2 – Moderate Density Residential District. Planning Director Harkins stated this request is in conjunction with a lot split that the Planning Commission approved. As it stands right now, there is one property with multiple buildings. The applicant is looking at separating the old church building off from the remainder of the buildings so you would be going from one property that would be grandfathered with setbacks to two properties that now don’t meet setback requirements. Hence, the request for the variance. Member Sawyer stated they both should be grandfathered in. Harkins stated essentially staff is looking at it as the variance request for both tracts in the lot split. They are grandfathered right now as one lot. The Planning Commission approved the lot split subject to variances being granted for the setback requirements. Member Sawyer stated if you split the lot you can’t tell them to take part of the building off it. Harkins stated it was either that or we just tell them no that they can’t split the lot. Member Sawyer asked if they are going to sell the lot. Marlin Brabec from Don Peterson and Associates was present as a volunteer representing the church. Brabec stated on the side yard then the street side yard are mostly our problem. What he was trying to say is that when he and Planning Director Harkins talked about this is because they are separating it and they have a new lot they are no longer in compliance without the Board’s permission. Brabec stated he was in agreement with Mr. Harkins that he needs the Board’s permission to do this. Mr. Brabec stated applicant wants to split the church off and either possibly sell it or if they can’t find a buyer because they don’t really have anybody in hand at this point, they would maybe have to take it down or something but that is kind of what they have. They have a big campus that is not manageable as one entity so they are trying to split off the old church with the new church being adequate. That is really what they are doing. The church’s exterior needs some tuck pointing but it is built like a fort. It is really very heavily structured and even though it needs some plaster work inside it is in very good shape and would be serviceable for some use. Harkins stated some of the setbacks with the proposed lot split can be met but not all of them, hence again the request for the variance. Harkins stated this is one of those that is a very unique case but because we had buildings built so long ago before the current code existed to do changes now means the current requirements have to be met, hence again the request for the variance. Staff feels that is a hardship for them because of the layout of the buildings and the lots so that is why staff recommended approval. Chairman Bang asked if Parcel 1 will meet requirements. Harkins stated it would not. It would be a variance for both parcels in one shot. Bang stated even without the lot split it still doesn’t meet code. Bang stated if we were just talking about the new line created as it is one issue but the other lot lines are never going to meet the requirements either. Bang stated none of the lot lines will. Harkins stated going from one big one they would meet it but they would be grandfathered to now you are taking this action so you need this coverage in order to have flexibility down the road. Member Winter stated usually we are very lenient about stuff that is 100 years old as we have been in the past. Harkins stated he is looking at the institutional knowledge. Member Sawyer stated no one would want to stop them from selling it off. Sawyer asked if we set precedence. Harkins stated he didn’t think they were setting a precedence per say. There are going to be very few circumstances where this comes into play. When staff looks at the older neighborhoods they are going to try and do some other things with the code update to accommodate some of these situations. Member Sawyer asked about the houses to the north. Brabec stated there is an alley between them with the fence. Chairman Bang stated just to be clear that Planning Commission approved the lot split as drawn. Harkins stated subject to the variances being granted for the setbacks by the Board of Adjustment. Moved by Winter, seconded by Hoshor to recommend approval of the request. Chairman Bang asked for clarification if the Board denied what the Planning Commission would do. Planning Director Harkins stated honestly he thinks they would have to go back and figure something else out at this point as the lot split request was approved dependent upon variances being granted for setbacks so they would have to take a look at some other configuration. Bang stated just to clarify that they did approve it contingent only upon the variances for setbacks being granted. Bang asked if we were opening it up to if it does get Page 3 of 4 sold and someone wants to do an addition or remodel that now they have a variance for the setbacks. Harkins stated the Board can add the stipulation that for Parcel 1 there would be no additions to a building that size. Staff wouldn’t be in favor of any other variances for that. Mr. Brabec stated if he understood right they would have to come back to the Planning Commission for the usage also. Harkins stated depending on if you were going to sell it and what they would be looking at as it may or may not be something the applicant would have to deal with. Bang stated we would not be giving them free reign or use of these two new lots. Harkins stated no as both lots would still be zoned R2 so all those regulations would still apply. They could make a house or a duplex. Bang stated or continue to add on in nonconformance. Bang stated if you took the church office and have the same width all the way back they would not be complying now. Sawyer stated they were not talking about selling the church office as that would stay with the other property. Brabec stated that was correct. Harkins stated based on the pattern of activity that staff has seen, he can’t see any other lot splits occurring in there unless the entire church operations were to vacate the property and move somewhere else. Member Casey asked if they took the church down then would the variances still stay with the land. Harkins stated they would stay with the property so that would still be in place if somebody else wanted to come in and do something but the R-2 regulations would still be in place so whatever is applicable by right would be allowed but anything outside of that would not. Member Sawyer asked if they tore it down would the distances stay the same that they are now and setbacks convert back to that? Harkins stated typically the variance would run with the property. Planning Director Harkins stated if the structure burns down or is damaged beyond 60% then they couldn’t rebuild that building. They would have the setbacks changed and they would have to build to correct code. Harkins stated they could make that stipulation if the Board wants. Mr. Brabec stated that may be a problem because they are pretty narrow and if you would put a duplex on it he was thinking you would have to face it west and he was worried that there wasn’t enough room. That would now be the front setback. Chairman Bang stated what he would like is if the building is tore down or it burns down or is damaged beyond 60% there would be cause for a new variance request. Planning Director Harkins stated hopefully by then we have some things changed where things like this start to get taken off the Board of Adjustment’s plate. Chairman Bang asked Member Winter if he would be willing to revise his motion to go for the life of the building and not the life of the property. Recommended for approval with the contingency. Roll Call Vote showed all members present voting aye – 5 ayes. Motion Carried. Meeting adjourned at 5:00 p.m. Page 4 of 4