Board of Adjustment

MINUTES BOARD OF ADJUSTMENT AUGUST 13, 2013 - 4:30 P.M. CITY COUNCIL CHAMBERS PRESENT: Chairman Bang, Members Casey, Friedrich, Sawyer, Winter and Alternate Member Brown, 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 August 1, 2013 and is open to the public. 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. A copy of the open meeting law is posted continually for public inspection located near the entrance door by the agendas. Roll Call showed six members present. Meeting is hereby declared to be duly convened and in open session. It was moved by Friedrich, seconded by Sawyer to dispense with the reading of the Minutes and approve as mailed. Roll Call Vote showed all members present voting aye – 6 ayes. Motion Carried. Secretary Pruss stated this was a Special Meeting and the minutes would not be approved at this meeting and was not listed as an agenda item. Member Friedrich and Member Sawyer withdrew their motion. Planning Director Harkins 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 Matt and Dawn Updike to erect new storage facility with insufficient front yard and rear yard setback at 1035 West Military Avenue, Fremont, Dodge County, Nebraska. LI – Limited Industrial District. Planning Director Harkins stated this is a request within the LI zoning district for essentially a storage facility that was part of a lot split and lot combination scenario that happened over the last few months. The front and rear setbacks in the LI District under code right now are 25’ respectively. The applicant is looking at putting in a 22’ x 70’ building on the west end of the property next to the railroad right-of-way. There is a building on site right now that has a commercial business in it that the applicant owns. They are looking at essentially making additional revenue from their property but because of the setback rules being the way they are versus the layouts of the property that is a little difficult for them with the setbacks being the way they are. They’ve proposed a 15’ setback from the closest point to the front lot line with the front lot line in staff’s opinion being the north. They’ve proposed a 4.6’ rear lot line at its greatest amount in the rear with a corner of the building being essentially back in the corner of the property as shown on the attached graphic on the proposed site plan. They have indicated a willingness to install a 10’ wide concrete apron in front of the building. This is essentially a building that they are looking at using for storage. You can see the fence scenario as well that they are looking at for security and privacy off the existing building back toward the property line. In terms of staff’s opinion, the original platting pattern was a number of small lots. In order to try and fit in a lot split with a line that was Page 1 of 6 somewhere in between all the existing buildings you see the lot line the way it is and that kind of chopped the middle in the existing buildings. It is staff’s opinion that because of that, there is a bit of a hardship that exist because really with the previous platting patterns there was no real good way to make things fit with regard to thinking thru the future. Essentially that is why we recommend approval but are open for questions and the applicant is here as well if you would like to ask them questions. Chairman Bang asked the applicant if he would like to address the Board and state his name and address for the record. Applicant Matt Updike of 8120 East Highway 30, Fremont was present. He asked if anyone had any questions for him. Chairman Bang informed Mr. Updike that the Board needed a hardship. He didn’t really see a hardship as applicant could obviously fit a smaller building on the site with some limited variance. Planning Director Harkins stated you could but really though with the way the lot is laid out the Board will have to allow some kind of variance no matter what. If the applicant were to take the building and turn it so that it ran east/west, he would still have to have potentially a variance depending on the size of the building because to get it at least 6’ away from the existing structure that is there would require some work. Not that it couldn’t be done but if you were to place it at the back property line and let it run at the same size or close to it, you would still have that issue of that 6’ separation potentially. It would be close but the applicant was looking at laying the building out like shown primarily just to keep the doors from the building from facing to the north so they wouldn’t be seen from Military. Harkins stated to him that was a bit of a security issue. Applicant stated eventually between the new building and the existing building it will all be paved. He stated if he has time he will do it this fall. Chief Building Inspector Simon stated a 25’ apron in front of the proposed building in lieu of the 10’ was discussed and he stated he and the applicant also have discussed an ADA parking site for the existing building just west of the existing building. Simon stated when the applicant remodeled the existing building he asked for them to put in a unisex ADA bathroom and they did. He also stated he asked for a ramp in back, which they did. He stated applicant has been cooperative about that and when they talked about the limits and getting a better spot for that ADA parking staff. Right now there was so much broken gravel towards the other side it wasn’t a really good spot for the ADA to come in and applicant has agreed to pave most of that up to the west side of the building and that would make it more ADA compliant so someone could park a van there, get out and come into their facility. Member Sawyer stated he could move the building over except he would have the ADA parking so that makes it a hardship and a reason for putting it where it is. Harkins stated there is that issue that factors into it as well and that was another reason why staff is willing to go along and request these variances with the layout this way. Chairman Bang stated there again, what is the hardship other than this is the best way we can fit a 22’ x 70’ building. He stated he was looking for the hardship for the Military Avenue distance. Bang stated it is 15’ and it should be 25’. Applicant stated it is exactly the same distance back as the existing building. Member Brown stated it did not stick out past the existing building. Applicant stated it will be the same frontage as the existing building. Member Sawyer stated the zoning has changed since the other building. Member Winter inquired about the west lot line. Could they go up right against that? Harkins stated in the LI and the GI zoning districts, you can have an interior lot line setback of zero feet. So Winter stated that was fine along where the railroad tracks are. Harkins stated that was correct it is. Winter stated it was from Military that we have a problem. Harkins stated the hardship is off of Military, which we are calling the front, and then the south end, which we are calling the rear. Winter stated it would be 25’ in the front and how much on the rear? Harkins stated 25’. Chief Building Inspector Simon stated it was 15’ to the corner as that 10’ kind of makes it look a little odd. It is 15’ from the front property line and that right-of-way is a larger right-of-way obviously so there is still a considerable green space out in front of that. The applicant stated it would be equal to what the existing building has of green space and then on the existing building now on the southwest corner there will be a parking stall for ADA and it’s not on there but the existing building has an ADA ramp that starts to the west. Applicant stated that Page 2 of 6 way you would have room to put a van or whatever they would be driving in there for the accounting business that exists. Chairman Bang stated the applicant has 15’ on Military and have zero in the back where we should have 50’ of setback combined between the two so that is a huge change. Bang questioned whether this address was actually Military Avenue or Marvin Court. Applicant stated the address to the building is 1035 West Military of the existing building, which is the old Korshoj Lumber Building. Member Friedrich asked if after the lot split would the address change now. Harkins stated the addresses did not change after the lot splits and lot combinations. Harkins stated to walk backwards a little bit, the area this lot now has in it was previously part of three lots before. It was platted as three separate lots. Member Sawyer stated there was a building out that far before wasn’t there. Harkins stated it was pretty close to that same spot. Harkins stated there were essentially multiple lot splits and multiple lot combinations that resulted in Mr. Updike’s lot configured like this. When they did the lot combinations and redrew the boundary lines, that south boundary line of 169.53 was really just trying to get in the middle between those existing buildings and trying to make it fit essentially. Harkins stated because of those previous platting patterns and the ability in doing this would give the applicant an ability to maintain a view line in terms of the buildings being lined up with the existing structure plus the ADA issues, those were the three reasons why we saw a hardship. Chairman Bang stated the applicant obviously did the lot split and the idea was that the south boundary line was pretty much divided between the two existing buildings to at least get a 20’ (21.2’) setback and now we are going to put a building right up against it. Harkins stated right and honestly staff at the time when we brought the other variances about those setbacks before to the Board we were not aware of any other development proposal so until after the fact and this showed up. Chairman Bang stated in addition we also have a railroad running right behind that building which we are now only going to be 15’ that you will be able to see as opposed to 25’. Planning Director Harkins stated that is a fully automated intersection and a full automated railroad crossing and there are people who are already calling for the viaduct to be built there. Chief Building Inspector Simon stated there are abandoned tracks 20-30’ from the rear of the building and then the actual tracks another 60-70-80’ so the first set of abandoned tracks has weeds growing in them and nothing has run there this year and he was sure it was probably something for the lumber yard. Member Brown asked if the applicant was asking for a new approach or anything. Applicant Updike stated there is an existing approach there and that is another reason he put that on that lot. Harkins stated in orienting the building this way it would give a person the ability to come in off of Marvin Court for example and come in around the back of the existing building to the proposed building, turn around and actually back up, unload or load and then go out through the back of the property as well. Chairman Bang asked Mr. Updike if this was for his storage or for rental storage. Applicant stated 50/50. Bang stated if this is rental storage, it brings in a whole different set of regulations correct? Paving, landscaping. Harkins stated there are some of those that would come into play. Member Sawyer stated we talked about the paving area. Bang stated he is not applying for any variance to any paving requirements or anything at this time. Harkins stated at this time no. The applicant is planning to do the 10’ apron now and then the remaining area to pave over the next year as his timing works out. Chairman Bang stated he is not trying to be tough but he is just trying to keep the Board’s behinds out of the ringer as we have gotten into these arguments about the paving, the landscaping and so many variances on those things and arguments between people. The applicant stated he noticed around town that there are a lot of people that have no paving and you have a lot of people that have paving. He was told to put a 10’ apron in and that’s what he plans to do. Actually the long-term plan within the next year or so is to pave all the way to that building so there is parking on the west side. Member Sawyer stated what the Board needs to do is come up with a hardship and that is what they are fishing for. Member Friedrich stated part of the hardship might be that the building is already here due to prior approval. Planning Director Harkins stated he had some miscommunication with the applicant and he doesn’t know if the building is on site but the building has been ordered. Harkins stated the proposed building that the Board sees on the site plan has been ordered. Chairman Bang stated that would be part of the reason for the size. Applicant stated that he was given information that he was in the zoning clear, he went and Page 3 of 6 ordered the building and then when he went to get the permit it arose. Harkins stated however to go back to the Chairman’s question about does this open up other things, the code talks about for convenience storage that driveways, actually storage buildings, does not open up into a required front yard so turning the building this way avoids that as well. All the storage is in an enclosed building and he doesn’t foresee the applicant storing hazardous materials in the facility. Member Sawyer asked if that could be a restriction. Harkins stated that is already a restriction in code. Member Friedrich stated with the applicant being on the lot lines he has to put in firewalls. Is that correct? Chief Building Inspector Simon stated they had already talked about putting a firewall around the back and the side even though there is no building behind it but because it is on the property line yes. It has been discussed. Member Friedrich asked the applicant if he was alright with that. Applicant Updike replied yes. Member Sawyer asked if they found a hardship yet. Bang stated he hadn’t for either north or south. Lining up with the other building on the north is one thing but building right up to the property line on the south is another and there is room for about a 40’ building and they are trying to put in a 70’ building. Member Sawyer asked what you do with realistically the dead space on the back side. Applicant stated it would be weed control. It controls the weeds. Bang stated on the west side towards the track he didn’t feel was really a problem. Member Friedrich stated we are having issues with the south end basically. Bang was in agreement and stated we would be allowing a building up to the property line. Member Friedrich stated had he known that prior he wouldn’t have ordered the building. Chairman Bang stated there is a statement if they heard him at the bottom stating exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice. Member Brown asked if the existing building and the odd shaped lot would be a hardship as it seems like it would be. Planning Director Harkins stated it can be. Staff’s opinion is the platting pattern, the shape of the lots even after the splits, was one of their reasons for a hardship. Chairman Bang stated what if someone buys the property to the south and here is a building built right up to his property line and then he wants to build right up to the property line, it would be a problem. Planning Director Harkins stated he will add to that. The owners of the property to the south were involved in the lot split and lot combination scenarios that include this lot. Member Brown added that they could have been here. Applicant stated he agrees as he talked to him and he is fully on board. Member Brown stated he is pretty sure the other owners of the other lot are going to make their entrance from the south side. Applicant stated that was correct. Member Casey asked if this would end up before them again for a landscaping and paving variance. Planning Director Harkins stated he was looking through for example the bufferyard provisions. There is a 10’ bufferyard requirement in LI from the street property line and that 15’ satisfies that requirement. There is no bufferyard requirement on the other sides of the building because the adjacent areas are also zoned LI so that’s not in play. Unlike if it were R1 for example you would have a significant bufferyard requirement that would require a variance. So, in terms of the landscaping regulations, we should be fine. Staff doesn’t see the need for a variance on that issue. With regard to paving, as long as the applicant is willing to start with the apron, which has been actually something that the Board has agreed to in the past, just doing the apron, but the applicant is willing to start with the apron and then do the rest of it over the course of the next year as timing works out. Staff is willing to go along with it and if we don’t see that getting done or them trying to make progress, then we can bring the matter back to the Board. Member Sawyer asked how much distance there was from the west lot line to the building. Harkins stated they are proposing about 5 inches. Now from the west lot line to his existing building, the one that is there now. Applicant stated it is a lot more on the north side than it is on the south. It kind of bows. Sawyer wasn’t sure if this was the scale. Applicant stated this was the scale and no the building would not fit any other way on the lot. Harkins stated you would have to keep it almost flush with the existing building to have any and you would still need a firewall at least on one side or one part of the building. Applicant asked if they were talking about running it east and west. Updike stated then you eliminate the ADA parking. Sawyer stated not if you keep it back far enough. Applicant Updike stated there is 21.8 feet from the rear lot line to the back of the building. Updike stated in order to conform to the ADA rules he would have to put the building in that location that is proposed. Member Sawyer asked why he ordered that size of building. Member Sawyer asked if he was told that he could. Applicant Updike Page 4 of 6 stated that was correct. Sawyer asked if miscommunication was a hardship. Planning Director Harkins stated it is not normally considered that. If you take it in its strictest terms, yes. Generally the intent is that the applicant isn’t doing something based on what is convenient. For example one of his first cases with the Board was a gentleman who was looking at a variance for a garage and he looked right at the Board. I believe it was the Chairman that said his hardship is…….and the applicant stated because it would be cheaper for me. The response from the Chairman was that doesn’t really satisfy the requirements. He wasn’t sure if any of the people here remember that one but that’s more of a typical example of convenience. Chairman Bang asked if there were any issues that this request doesn’t mention, like obviously in the advertisement and the write-up on this that it’s actually a front, rear and a side yard variance. Harkins stated the fact that we inadvertently listed the side yard isn’t an issue. We did advertise the front and rear so in terms of requirements we are okay there. Member Sawyer asked if he was sure he wasn’t going to store all his accounting records in that building. Applicant Updike stated they will be storing accounting records in there. Chairman Bang asked what type of building was this. Was it a pre- engineered metal building or is this a wood structure? Applicant stated it was a Cleary building and asked if he wanted to see the prints. Bang asked if it was a wood pole building. Applicant stated it was. Member Sawyer commented that it was basically dead space if he doesn’t do something and how about taxes wise as he would be adding a little bit to the tax roll. Member Friedrich asked if the ADA parking could be considered a hardship and Harkins stated yes, that is a hardship. Friedrich also mentioned the lot size. Harkins stated the lot size is a hardship issue and the ADA parking, eliminating needed ADA parking is a hardship issue. Member Sawyer stated he feels it would be an improvement. Chairman Bang stated he doesn’t know how if he divides up the lot and decide that this is the size lot I want to split off and then I declare that I have a hardship of what I created. Member Casey stated a smaller building would fit there. Bang stated you could have a 60’ building and run it east/west and only have a variance against the railroad track. Applicant asked where you put your ADA parking then. Bang stated ADA parking can be located quite a few different places. Chief Building Inspector Simon stated it should be the closest distance to the ADA ramp is where it should be. Bang stated that was correct but we don’t have one at all right now so anything would be an improvement. Applicant stated he put the ramp in. Bang stated there is not parking there now. Applicant Updike stated he put the ramp into an existing building that it was his belief that he didn’t need to but he did with full plans that the City was aware of that he would pave that once everything was up. Planning Director Harkins stated the applicant is willing to not contest the paving requirements whereas in the time that he has been there he has seen in some cases an applicant apply three times for a variance over a little bit of paving and wanting to keep it gravel. Member Sawyer asked in terms of zoning is the 25’ standard all over town. Harkins stated that area is zoned Limited Industrial so 25’ is the standard front and rear yard setback for Limited Industrial and there are a number of properties particularly south of Military in this area that are LI. Member Brown informed the applicant he believes he has shown a hardship and Mr. Harkins has given them two already. Member Sawyer stated it just fills in the lot, it is more tax revenue, and it just cleans it up. Otherwise, it is just a big white rocked parking area there with a lot of weeds. Member Sawyer was recalling some guy speaking to the Board regarding 90% of hardships. Planning Director Harkins stated he thought that was when Dave Ptacek was here speaking. That was one of the things he shared. He was talking in terms of generally most of the Ordinances that have allowed setbacks typically or allowed variances are more issues where the code should just be amended because they are not really true setback or hardship type issues. In this case, while he would generally agree with Dave, he thinks they have a lot of areas in town where unless you are going to replat essentially a significant amount of property it is very hard to give yourself enough space to have multiple development opportunities in the future once you purchase a lot, especially in commercial and industrial areas. Member Sawyer stated he would like to make a motion to approve but he doesn’t know what would justify the approval. Planning Director Harkins stated staff’s opinion is because of the previous and even the replat patterns don’t allow for a significant amount of space to be utilized plus the fact that even though a ramp has already been installed for ADA access and that essentially you start to mark out ADA Page 5 of 6 parking areas at that point so staff feels the elimination of even makeshift ADA parking would be taken away. Also the fact that we don’t see it as a detriment to the surrounding area or the character of the area. Member Sawyer stated not at all. In fact, as far as the railroad tracks, the only ones being used are the ones further west and they have the gates. The one right behind the building is abandoned. Applicant Updike stated there are just ties in the ground. There are not even tracks there. Member Sawyer informed the applicant he could try buying land from the railroad but that was like pulling teeth. Member Friedrich stated Sawyer’s motion was with staff’s recommendation and hardships. Sawyer stated he was making a motion that they go along with what the staff recommended as they have done research. Sawyer stated he felt it would be an improvement in the area. Seconded by Member Friedrich. Roll Call Vote showed 3 ayes – 3 nays (Bang, Casey, Winter). Motion did not pass. Chairman Bang stated there were no further recommendations. Meeting adjourned at 5:11 p.m. Page 6 of 6