Board of Zoning Appeals

HAYS AREA BOARD OF ZONING APPEALS MEETING AGENDA CITY COMMISSION CHAMBERS 1507 MAIN, HAYS, KS WEDNESDAY, FEBRUARY 9, 2022 8:15 A.M. 1. CALL TO ORDER BY CHAIRMAN. 2. CONSENT AGENDA. A. Minutes of the regular meeting of January 12, 2022. Action: Consider approving the minutes of the January 12, 2022 regular meeting. 3. PUBLIC HEARING ITEMS. A. Public Hearing for a variance to allow a six-foot fence within the front yard setback of 1303 Tallgrass Drive, Hays, Kansas. Action: Consider approving the variance to allow a six-foot fence in the front yard at 1303 Tallgrass Drive, Hays, Kansas. B. Public Hearing for an eleven-foot variance to reduce the platted building setback from the required 25 feet to 14 feet to construct a detached garage in the side yard at 3000 Northridge Court, Hays, KS Action: Consider approving the variance for a detached garage for the property located at 3000 Northridge Court. 4. NON-PUBLIC HEARING ITEMS. A. Request for a Public Hearing by Blaine and Kimberly Gabel for a two-foot variance to reduce the side yard building setback from the required five feet to three feet at 3103 Tam O’Shanter Drive, Hays, Ks. 5. OFF-AGENDA ITEMS/COMMUNICATIONS: A. None 6. ADJOURNMENT: Any person with a disability and needing special accommodations to attend this meeting should contact the Planning & Development Office (785-628-7310) 48 hours prior to the scheduled meeting.  DRAFT HAYS AREA BOARD OF ZONING APPEALS COMMISSION CHAMBERS IN CITY HALL JANUARY 12, 2022 1. CALL TO ORDER: The Hays Area Board of Zoning Appeals met for the regularly scheduled meeting on Wednesday, January 12, 2022, at 8:15 a.m. in the Commission Chambers at City Hall. Lou Caplan declared a quorum was present and called the meeting to order. Roll Call: Present: Lou Caplan, Russell Koenigsman & Brian Garrett. Absent: Rich Sieker City Staff in attendance: Toby Dougherty, City Manager, Collin Bielser, Assistant City Manager, Jesse Rohr, Director of Public Works, Curtis Deines, Superintendent of Planning and Development, and Linda Bixenman, Administrative Assistant. Others in Attendance: John Bird, City Attorney 2. CONSENT AGENDA: A. MINUTES: Russell Koenigsman moved; Brian Garrett seconded the motion to approve the minutes as submitted from the December 8, 2021, meeting. Vote: AYES: Lou Caplan, Russell Koenigsman & Brian Garrett. 3. PUBLIC HEARING ITEMS: A. Public Hearing for Nex-Tech Wireless for a special use/exception to allow a Wireless Telecommunication Facility (WTF) located in a C-2 Commercial General District at 1803 General Custer Road, Hays, KS. Curtis Deines provided a PowerPoint presentation of the applicant’s request for a special use permit to allow a Wireless Telecommunication Facility (WTF), or cell tower, to be in a C-2 zoned district at 1803 General Custer Road. He provided a zoning map and site plan. The purpose of the tower is for Nex-Tech Wireless to expand their service to 5G and plan for the future. The tower is to be located more than 72 feet from any property line. He provided a picture of an existing cell tower just north of Dillons on Vine Street as an example of what it would look like. He explained the Unified Development Code requirements for the special use associated with the list below and the applicant has met these requirements. • Setbacks 1  • Collapse Points • Opaque 6-foot fence enclosing base and facilities • Vehicle Access • New towers require FAA approval in proximity to the airport He stated that the board shall consider the comprehensive zoning plan, the health, safety, morals, comfort, and general welfare of the inhabitants of the community and included the main factors, listing those that most apply in bold print. Curtis Deines provided a couple of e-mails in opposition that were sent to him to present to the Board to consider for this request. He had also received a couple of phones calls in opposition of the request. He provided the recommended action. He asked the Board if there were any questions before the public hearing. There were none. Lou Caplan explained about the public hearing process and opened the public hearing. Luke VanFleteren, Attorney from Stinson Law Firm, based out of Wichita, representing SBA Communications, came before the board to explain that his client has a wireless communication tower located at 2000 Vine Street east of the Peerless Tire that is less than 1,000 feet (1/6th of a mile) from the proposed tower that Nex-Tech Wireless has cited. The towers will be almost at the exact same elevation. The SBA tower is 150 feet in height and the proposed tower will be 120 feet in height. The SBA tower was built in 2001. It is technologically up to date. It already serves Nex-Tech at the height of 130 feet. There are multiple open ports on the existing tower for additional equipment if it is needed. Similarly, if there were new carriers, they could be brought in on the existing tower. Because of that he did not know what the basis was for the new tower other than what was stated in the application. He passed out some materials associated with his statements. He showed a picture of the existing tower and the proposed tower. He provided some propagation maps to show that the coverage Nex-Tech would be providing would not be materially different from the current location to the proposed location. The only difference would be Nex-Tech wireless telecommunications would be shifted from the SBA tower to the proposed tower. In accordance with the code and ordinances to be considered, he pointed out that there is a separate Kansas Statute passed in 2016 that governs the siting of 2 wireless support structures. SBA’s position on this is that statute just applies to public lands so if the cell tower was on a public right of way, there are certain things you can and cannot consider. Others interpret that it applies to all applications. This is something he wanted to bring attention to. He noted that they could provide an analysis of that in writing. Even if it was thought the statute limited this proposed tower in some way, there are certain things a local authority can and cannot require what an applicant is required to provide. He believes this is a different situation. On review of the application materials, there were statements made about whether coverage would be improved and what the need is for the tower. He pointed out that would be something the Board would consider in this application process. The packet he handed out included those respective parts of the Unified Development code that pertained to a Wireless Communication Tower. The Federal Telecommunications Act does not particularly tie your hands with this application. One thing the act states is that the local authority can’t unreasonably discriminate against functionally equivalent service providers. The way courts have looked at that is as follows, per his example: If the local authorities got a T- Mobile or an AT&T or a Verizon tower and they already have self-service and Nex-Tech wants to come in and they are denied services. The Federal Telecommunication Act states that you cannot discriminate among providers. Since Nex-Tech is already receiving services on the SBA existing tower, he pointed out that the Federal Telecommunications Act would not discriminate in this situation if the board were to deny putting up this additional tower. a) He stated that per the parcel map in the application materials it shows the setback is roughly 75 feet west from the road and 120ish feet north with the tower being taller than that. b) He did not see anything in the application about the preformed collapse points. (iii) New towers are to be separated by a minimum distance of two miles measured in a straight line and this proposed tower will be roughly .16 miles. Their position is this part of this section in the Unified Development Code is not met. (d i). He pointed out that he did not see in the application any documentation of the notification to the Federal Aviation Administration with its proximity to the airport. (F) He pointed out the submittal requirements section and the documentation that shall be provided for all proposed wireless telecommunication facilities. One of them is elevation drawings, and there is a description what is to be included in the elevation drawings. He did not see that in the documentation with the application. (F 4) He believes a PowerPoint would satisfy the technical support requirement. 3  (Nos 5. 6. 7) He did not see a coverage map, co-location statement and removal statement nor a waiver of co-location requirements. It is their position that the application is deficient. It does not meet the requirement of the code. This can preclude granting the permit request. He added that SBA, and himself and his law firm would be glad to provide any written statement on the law. There are a lot of moving parts, and he did not want to throw it out in front of the Board all at once. He added that if it would help to have a written opinion, they would be glad to provide that. He asked for any questions. Lou Caplan asked who generated these coverage codes. Luke VanFleteren, attorney, answered that SBA, the company he represents, had it prepared by a third party. Brian Garrett asked if the proposed tower would be detrimental to SBA’s coverage. Mr. VanFleteren answered that not to his knowledge. Brian Garrett addressed Mr. Van Fleteren asking that “This is just competition?”. Mr. VanFleteren stated that his thought on this is this subject competition might or might not benefit the citizens of Hays. It is not bringing in a new provider; Nex- Tech is already located on the SBA tower. It would be just shifting the existing coverage. Nathan Sutter, Director of Network Operations of Engineering at Nex-Tech Wireless came before the Board. Prior to his tenure in this position, he was a radio frequency engineer for Nex-Tech Wireless for eight years. Prior to that he was in that capacity with Sprint-Nextel for 7 years. He explained that he wanted the Board to be aware that there is some subtext that SBA is unaware of. They have a structural analysis report from the last time they put equipment on the SBA tower that shows it to be 90 percent loaded. (They can make the report available.) The current loading on that tower is extremely light. The antennas they need for 5G and beyond are much larger and would not be able to be put in the existing RAD center based on that structural analysis. This comes down to the fact that Nex-Tech Wireless would like to offer 5G services and beyond off of the proposed tower. They are the only one in Hays that currently does not have those services and they need to get it there. The current location does not provide them the ability to do that. SBA would like to say that this will not bring additional services to Hays. They are Hays and live here. This is their headquarters. This is their flagship market. They deploy all their new technology here first. They need the flexibility to deploy; not only more bandwidth and 5G, but whatever comes next. This proposed tower will help them do that. 4 He asked for any questions. Brian Garrett asked what height they are at on the SBA tower. He also asked if there would be the opportunity to lease space to other carriers. Nathan Sutter answered that they are at 130 feet on the SBA tower. He answered they are bound by regulations to have space for up to three carriers. They typically build for five. They absolutely will lease space to other carriers. Russell Koenigsman asked how this location was chosen. Nathan Sutter answered that initially a radio frequency search ring was drawn. They looked for candidates within that search ring. They do predictions based on the need of the network. This search ring was fairly small. This tower is not designed to reach and touch to go far. It is a capacity site for them. The lower height in some cases is better. They have seven sites in metropolitan Hays. This is one of them that would provide dense in-building coverage; not only to Dillons but the area surrounding. Jesse Rohr, Director of Public Works, came before the Board to provide information before a decision was made to refer to a couple state statutes, likely the same ones referenced by SBA’s attorney. He explained K.S.A. 66-2019 relative to cell tower placement states that an authority shall not require information that concerns the specific need for the structure and may not evaluate an application based on the availability of other potential locations including co-locations. Another statement out of the same statute makes the location of wireless infrastructure subject to basically three things: the reasonable public health, safety, and welfare regulations of the City. Rather than specific need of a structure, that consideration would be the public health, safety, and welfare regulations of the City. Also, regarding the Unified Development Code regulation that mentions the two- mile separation between new towers, has been interpreted as requiring a two-mile separation between two or more new towers. It does not state that a new tower is to be two miles from an existing tower. He asked for any questions. Russell Koenigsman asked if someone could speak on the collapse zones and why it is working with the General Custer Road that is nearby. He asked how far it was from the road, and how that works with the tower next to the building. Nathan Sutter answered they have a document from the structural engineering firm that shows the crumple zones for this tower are in the center to fall on itself approximately 70 feet give or take. They can get the specific engineering documents. 5 Curtis Deines answered that the closest property line is 72 feet and even greater on some of the other sides. They were shooting for a fall zone of 63 feet because the fall zone had to be 110% of the tallest section. That is why it is in the center of the property to meet that fall zone and design criteria. He answered about the tower next to the building. Curtis Deines answered that was an owner decision to take that risk, rather than risk to another property or risk to the public. Bill Flipse, resident that lives close to the tower. He asked about the 5G service. He has heard on the news that the 5G service can cause problems for aircraft. He asked if this is any concern to us in this area. Nathan Sutter answered that there is much misinformation about 5G to aircraft and human health and impacts of things like that. The actuality is the FCC closely regulates and mandates the allowed power draw for all frequencies. Everything they operate is mandated by the FCC, closely controlled and agreed to by FCC and FAA. The more important distinction here is 5G is no different electrically than what they are doing with 3G and 4G. The radio waves are the same. The propagation is a little bit better. There are things they do on the back end to make it faster to bring better speeds. From an electrical penetration perspective, there is materially no difference between 5G and 4G. Richard Augustine, owner of the property came before the board to state that if there was a concern for safety, they would not agree to the construction of the tower on their property. He noted that after the strong winds from December 15, 2021, they drove around to check the wireless communication towers in and outside of Hays. Safety- wise they feel like it is good, and Nex-Tech is always positive for us. Jesse Rohr added more information stating that if this special use permit were approved and ultimately the height variance is approved, there is still another step in the process of an application for the building permit to be granted from the Planning and Development office. Before the building permit can be issued, any of the FAA submittals and any other required submittals required by the Unified Development Code such as fall zone submittals are to be submitted along with the building permit application and be reviewed by that office prior to a permit being issued. He wanted everyone to know there is another step beyond what happens here today. Lou Caplan closed the public hearing. Brian Garrett asked, per the above discussion, that the height was not as important as the capacity. The code calls for a 65-foot tower, he asked why the request for a 120-foot tower. 6 Nathan Sutter answered that typically the tower height is 100 feet or over to get above the buildings and above the tree line. The reason they go for additional height is to allow for other carriers to co-locate. Lou Caplan entertained a motion. Motion: Brian Garrett moved, Russell Koenigsman seconded the motion to approve a Wireless Telecommunication Facility (WTF), or cell tower, to be in a C-2 Commercial General Zoning District at 1803 General Custer Road. Vote: AYES: Lou Caplan, Russell Koenigsman & Brian Garrett. B. Public Hearing for Nex-Tech Wireless to increase the height of a Wireless Telecommunications Facility (WTF) from the allowable 65 feet to 120 feet on the property at 1803 General Custer Road, Hays, KS. Curtis Deines provided a PowerPoint presentation of the applicant’s request for a height variance for a wireless telecommunication tower from the allowable 65 feet to 120 feet on the property at 1803 General Custer Road, Hays, KS. The maximum allowable building height in a C-2 Zoning District within the Unified Development Code for a cellular tower is 65 feet. There are more than 10 other telecommunication towers within the City Limits of Hays and the extraterritorial jurisdiction. All the towers that are installed are at or above 120 feet in height. He explained the five statutory requirements that are to be satisfied for approval and how they are associated with this property. History: In the late 1990’s and early 2000’s is when the last cell towers were installed in city limits. Ten or more have been installed at 120 feet or taller. Some are near residential areas as well. He provided the recommended action. Brian Garrett stated that he understood that the code was under review to increase the allowable height. Curtis Deines answered that the height regulations within the C-2 Commercial General District are tied to building height. It cannot be 20 feet taller than the maximum building height. Staff is bringing forward the consideration for the change in the maximum building height within the code that in turn would affect the allowed height of this tower. Lou Caplan opened the public hearing. There were no comments from the audience. 7  Lou Caplan closed the public hearing. There were no more comments from the Board. Motion: Russell Koenigsman moved; Brian Garrett seconded the motion to grant the variance to increase the height of the Wireless Telecommunication Tower from the allowable 65 feet to 120 feet on the property of 1803 General Custer Road that is in the C-2 Commercial General Zoning District based on the consideration it meets the five statutory requirements. Vote: AYES: Lou Caplan, Russell Koenigsman & Brian Garrett 4. NON-PUBLIC HEARING ITEMS: Note: This case was held to last item. A. Request for a Public Hearing by Justin MacDonald for a variance to allow a six- foot fence in the front property setback within the NC.2 (Neighborhood Conservation District) on the property at lots 1-2, Block A, Tallgrass Addition, generally known as 1303 Tallgrass Drive, Hays, KS. Curtis Deines provided a PowerPoint presentation of the applicant’s request to replace the 42-inch (3.5 feet) high fence with a 72-inch (6 feet) high fence in the front yard setback of the property at 1303 Tallgrass Drive. The property owner had hired a contractor to replace the fence, and they directed them to the City to see if this could be done. The owner owns two parcels at 1301 and 1303 Tallgrass Dr. The previous owners had purchased the two parcels and built a 42-inch fence in the front setback that was within the fence regulations. The owner would like to replace the 42-inch fence and increase the height to a 72-inch fence. The home was built in 2008. Current regulation allows a maximum of a 42-inch tall fence in residential districts within the front setback. The owner has the option to build a 6-foot fence at the front setback keeping it in line with the house; it would move it back approximately 10 or 12 feet from the previous 42-inch-tall fence. No variances have been approved for front yard fence height since adoption of the UDC in 2016. He explained the five statutory requirements that are to be satisfied for approval and how they are associated with this property. History: No History for this type of case. 8 Staff Analysis: The granting of the variance for the proposed 6 foot fence would oppose the general spirit and intent of the regulations. Just because the owner has an extra lot, it does not mean they have justification for a taller fence closer to the street. No action at this meeting. There will be a public hearing on February 9, 2022. He asked for questions. Brian Garrett asked if the original owner had purchased both lots. He also asked if the owner could sell 1301 Tallgrass as a separate lot and build a house on it? Curtis Deines answered that they built on 1303 Tallgrass and saved the other lot for themselves. The vacant lot can be sold off and a house can be built on the lot. Lou Caplan asked about the concrete wall next to the area and if it is now owned by the property owner. Brian Garrett asked who would maintain the wall. Curtis Deines answered that the developer put in the six-foot-tall concrete wall. Jesse Rohr stated that he recalls that the developer put in the concrete wall as an afterthought. The wall would belong to the properties it is constructed on, and those owners would maintain it. He did not believe there is an active Homeowner’s Association associated with the wall. Jesse Rohr and Curtis Deines stated that when the application was submitted, it was explained and suggested that the owner has the option to build a six-foot fence at the front setback, keeping it in line with the house. Jesse Rohr stated that there was not consideration of that because they had already hired a contractor that put in the stem wall and posts. The contractor asked the owners to contact the City if that was allowed; thus the reason for the variance request. B. Request for a Public Hearing for an eleven-foot variance to reduce the platted front yard building setback from the required 25 feet to 14 feet to construct a detached garage at Lot 2, Block 7, Northridge Third Addition, generally known as 3000 Northridge Court. Curtis Deines provided a PowerPoint presentation of the applicant’s request for an eleven-foot variance to reduce the north side yard building setback of a residential property in the NC.2 Residential Zoning District from the platted 25 feet to 14 feet to construct a detached garage at 3000 Northridge Court. Current regulations allow a minimum 14-foot setback although the current plat is more restrictive and requires the side yard building setback to be 25 feet from the side yard property line. This reduces the amount of buildable area on the lot. The plat was approved in 1960, and today it would not be recommended for setbacks on a plat to be more restrictive than the current regulations. Without replatting, a variance is the only relief of the more restrictive regulation. The applicant plans to have the doors facing south so it is easier to have access for backing trailers into the garage. 9  He explained the five statutory requirements that are to be satisfied for approval and how they are associated with this property. History: Two cases of similar nature were recently approved for platted versus Unified Development Code setbacks. This is becoming a common situation particularly for corner lots. Staff is reviewing this type of situation to determine if there is an alternative way to deal with an older plat that is more restrictive than today’s regulations. No action at this meeting. There will be a public hearing on February 9, 2022. He asked for questions. Brian Garrett asked if the garage on the east west line, lined up with the house. He also asked if the fence would be reconfigured. Curtis explained in detail that the garage would line up to the house. The fence would need to be reconfigured to allow access. Scott Hess, the applicant, explained how he would reconfigure the fence. 5. OFF AGENDA ITEMS/COMMUNICATIONS: A. None. ADJOURNMENT Lou Caplan adjourned the meeting at 9:08 a.m. Submitted by Linda K Bixenman, Administrative Assistant 10 THIS PAGE INTENTIONALLY LEFT BLANK  City of Hays Planning & Development Division Board of Zoning Appeals Action Report AGENDA ITEM: Setback Variance Application 01-22 ADDRESS: 1303 Tallgrass OWNER: Justin MacDonald TYPE OF REVIEW: Fence Height Variance PRESENTED BY: Curtis W. Deines, Planning & Development Superintendent DATE PREPARED: January 12, 2022 AGENDA DATE: February 9, 2022 Summary The applicant is requesting a variance to increase the fence height from an allowable 42 inches (3.5 ft.) up to 72 inches (6 ft.) in the front setback of the property located at 1303 Tallgrass Dr. Recently, the owner hired a contractor to build a new fence in the same location as the previous fence, which was 42 inches in height or less. The applicant requests to have a 6 ft. fence in this location. Staff is not in favor of this request as it goes against the intent of the UDC regulations for fence height in the front setback. Background The applicant owns two parcels at 1303 Tallgrass Drive. Previous owners purchased the 1301 Tallgrass parcel and built a fence in the front setback at 42 inches in height. The residence was built in 2008. Recently, the owner hired a contractor to build a new fence in the same location as the previous fence. The applicant now desires to have a 6 ft. fence in this location. Current regulation allows a maximum 3.5 ft. tall fence in residential districts within the front setback. The new property owner is replacing the fence and would like it to be 6 ft. tall. The owner has the option of building a 6 ft. fence at the front setback of the house keeping it in line with the house.  Standards of Evaluation (Per State Statute 12-759 and City Unified Development Code) • The BZA has the authority to grant a variance if a literal enforcement of the provisions of the adopted regulations, will, in an individual case, result in unnecessary hardship, provided: o The spirit of the regulations shall be observed o Public safety and welfare secured o Substantial justice shall be done • The applicant must show that the property was acquired in good faith and that the variance is needed due to extraordinary or exceptional circumstances of the property such as exceptional narrowness, shallowness, or shape of the lot • Before granting a variance on the basis of unusual difficulty or unreasonable hardship, there must be finding by the Board that all of the following conditions exist: a. Uniqueness of the property not ordinarily found in the same zone or district and not created by willful action of the owner. Staff Analysis: This property has no unique characteristics. It is two lots combined together. On the back side of the fence (west) the lot does slope to have the affect of a 6 ft. fence on the interior of the yard. b. The granting of the variance will not adversely affect the rights of adjacent property owners. Staff Analysis: The proposed request may adversely affect the rights of adjacent property owners by obstructing views not normally obstructed for fences complying with regulation. c. The strict application of the code will constitute unnecessary hardship upon the property owner. Staff Analysis: This is a self-imposed hardship. The property owner can have a 6 ft. fence, but it would have to move back approximately 12 ft. d. The variance will not adversely affect the public health, safety, morals, order, convenience, propriety, or general welfare. Staff Analysis: It is possible that if granted as proposed, this variance would adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. e. The granting of the variance desired will not oppose the general spirit and intent of the regulations.  Page 2  Staff Analysis: The granting of the variance for the proposed 6 ft. fence would oppose the general spirit and intent of the regulations. The regulation was changed to not allow 6 ft. fences at the front setback line. The intent of the regulation is to be consistent with fences not being 6 ft. tall in front of the front setback line or at the front property line. Just because the property owner has an extra lot doesn’t mean they have justification for a taller fence closer to the street. Options • Disapprove variance as submitted • Approve variance with conditions • Approve variance request as submitted Recommended Action Motion to deny the variance request for fence height from 42 inches (3.5 ft.) up to 72 inches (6 ft.) in the front setback of the property located at 1303 Tallgrass Dr. Supporting Documentation Images/Maps/Photos Variance application Variance justification and site drawing(s) from owner  Page 3 1303 1301 View with previous fence Current View Natural drop off on west side of fence  01-2022 12-21-2022 Same Same N/A N/A Owner Justin MacDonald December 21, 2021 50.00 Linda Bixenman, Administrative Assistant Published on the City of Hays, Kansas Web Page - January 12, 2022 through January 20, 2022 BEFORE THE HAYS AREA BOARD OF ZONING APPEALS THE CITY OF HAYS, KANSAS NOTICE TO: Justin MacDonald The Hays Area Board of Zoning Appeals The City of Hays, Kansas, and all other persons concerned, You are hereby notified that pursuant to the provisions of K.S.A. 12-759 through K.S.A. 12- 760 et seq. as amended, and Ordinance 4004 of the Code of Ordinances of the City of Hays, and Resolution 2021-20 of the Board of County Commissioners of Ellis County, Kansas, that a hearing will be had before said Board upon the appeal filed by Justin MacDonald. The subject of the hearing shall be a request by Justin MacDonald for a variance to allow a six foot fence within the front setback on the property of Lots 1-2, Block A, Tallgrass Addition, generally known as 1303 Tallgrass Drive, Hays, Kansas You are hereby notified that a hearing will be had upon said appeal on the 9th day of February 2022 at 8:15 a.m., in the City Commission Chambers of City Hall at 1507 Main, in the City of Hays, Kansas, at which time said appeal will be determined. Lou Caplan, Chairperson Hays Area Board of Zoning Appeals THIS PAGE INTENTIONALLY LEFT BLANK  City of Hays Planning & Development Division Board of Zoning Appeals Action Report AGENDA ITEM: Side Yard Variance Application #02-22 ADDRESS: 3000 Northridge Court OWNER: Scott Hess TYPE OF REVIEW: Street Side Yard Setback Variance PRESENTED BY: Curtis W. Deines, Planning & Development Superintendent DATE PREPARED: January 12, 2022 MEETING DATE: February 9, 2022 Summary The applicant is requesting a variance to reduce the south side yard building setback of a residential property from the required 25 ft. to 14 ft., a variance of 11 ft., to construct a detached garage. Although current regulation allows a minimum 14 ft. setback, the current plat for the property requires the side yard building setback to be 25 ft. from the side property line. Staff is in support of this request since the proposed setback will still be within the UDC regulations. Background The applicant is requesting a street side yard variance: • Street Side Yard – 25 ft. to 14 ft. Setback Required Setback Application by Plat Required by NC. Proposed 2 District Front Yard 25 ft 25 ft N/A Side Yard (South) 25 ft 14 ft 14 ft Rear Yard N/A N/A N/A Other Structures N/A N/A N/A • The applicant wishes to construct a new detached garage in the rear yard of the property within the NC.2 Residential Zoning District to provide shelter for vehicles.  • The applicant plans to have the doors facing south so it is easier to have access and the ease of backing trailers into the garage. STANDARDS OF EVALUATION: (Per State Statute 12-759 and City Unified Development Code) • The BZA has the authority to grant a variance if a literal enforcement of the provisions of the adopted regulations, will, in an individual case, result in unnecessary hardship, provided: o The spirit of the regulations shall be observed o Public safety and welfare secured o Substantial justice shall be done • The applicant must show that the property was acquired in good faith and that the variance is needed due to extraordinary or exceptional circumstances of the property such as exceptional narrowness, shallowness, or shape of the lot. • Before granting a variance on the basis of unusual difficulty or unreasonable hardship, there must be finding by the Board that all of the following conditions exist: a. Uniqueness of the property not ordinarily found in the same zone or district and not created by willful action of the owner. Staff Analysis: This lot is not specifically unique compared to other lots in the area. The lot is a typical lot for the block and is a standard shape and size. The zoning district of NC.2 allows a setback of 14 ft. for the Street Side. In this case the plat is more restrictive requiring a 25 ft. setback, which makes the variance request unique. b. The granting of the variance will not adversely affect the rights of adjacent property owners. Staff Analysis: This request should not have an adverse effect on the adjacent properties. The 11-foot variance will not affect adjacent properties as the location of the reduced setback is adjacent to Northridge Dr. c. The strict application of the code will constitute unnecessary hardship upon the property owner. Staff Analysis: The plat is more restrictive than the zoning district setbacks. This reduces the amount of buildable area on the lot. The plat was approved in 1960, and we would not recommend the plat to be more restrictive than our regulations if platted today. The City’s intent is to allow more flexibility for structures to be built on private property. Without replatting, a variance is the only relief of the more restrictive regulation.  Page 2  d. The variance will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. Staff Analysis: If granted as proposed, this variance should not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. e. The granting of the variance desired will not be opposed to the general spirit and intent of the regulations. Staff Analysis: The granting of a variance for a reduced side yard setback does not oppose the general spirit and intent of the zoning regulations. Current UDC regulation would allow a 14 ft. setback from the street side. Options • Approve variance request as submitted • Approve variance with conditions • Disapprove variance as submitted Recommended Action Motion to approve a variance to reduce the south side yard building setback of a residential property from the required 25 ft. to 14 ft., a variance of 11 ft. located at 3000 Northridge Ct. Supporting Documentation Images/Maps/Photos Variance application Variance justification and site drawing(s) from owner  Page 3 North Central Hays 3000 Northridge Ct Proposed Garage 14 ft  Property Line 5’ sidewalk Proposed 14’ Setback 5 ft 02-2022 12-29-2021 12/20/21 Scott Hess Statement of Justification Court A. Uniqueness: The situation at hand is unique due to the fact that Northridge -----Drive runs at an angle. This results in the current 25 ft setback to extend further into my backyard. The current regulation for the district is now only 14 ft. Building the garage 15 ft off my property line will let me build in line with the house not only making it more aesthetic but also leaving some leftover backyard space. B. Adjacent Property: The granting of the permit for the variance will not adversely affect the rights of the adjacent property owners or residents. The garage will still be far enough from the street that it will not affect anyone. C. Hardship: Without shifting the garage closer to the street, the driveway and building will take up most if not all of the backyard and resulting in additional concrete cost for the driveway. If I turned the garage so it would face the alley, it would be impossible to back a boat or trailer into it. D. Public Interest: The variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. E. Spirit and Intent of the Zoning Regulations: The granting of the variance desired will not be opposed to the general spirit and intent of the Zoning Regulations. The plat layouts in the 60s and 70s required larger setbacks. Today's regulations allow building closer to the property line. The garage will still be built with plenty of clearance on all sides. Placing the garage where I am planning it, will still allow for the intended setbacks. Published on the City of Hays, Kansas Web Page - January 12, 2022 through January 20, 2022 BEFORE THE HAYS AREA BOARD OF ZONING APPEALS THE CITY OF HAYS, KANSAS NOTICE TO: Scott & Lora Hess The Hays Area Board of Zoning Appeals The City of Hays, Kansas, and all other persons concerned, You are hereby notified that pursuant to the provisions of K.S.A. 12-759 through K.S.A. 12- 760 et seq. as amended, and Ordinance 4004 of the Code of Ordinances of the City of Hays, and Resolution 2021-20 of the Board of County Commissioners of Ellis County, Kansas, that a hearing will be had before said Board upon the appeal filed by Scott & Lora Hess. The subject of the hearing shall be a request by Scott & Lora Hess for an eleven foot (11’) variance to reduce the street side yard setback of a residential property from the platted twenty-five feet (25’) to fourteen feet (14’) to construct a detached garage at Lot 2, Block 7, Northridge 3rd Addition, Ellis County, Kansas generally known as 3000 Northridge Ct Hays, KS. You are hereby notified that a hearing will be had upon said appeal on the 9th day of February 2022 at 8:15 a.m., in the City Commission Chambers of City Hall at 1507 Main, in the City of Hays, Kansas, at which time said appeal will be determined. Lou Caplan, Chairperson Hays Area Board of Zoning Appeals THIS PAGE INTENTIONALLY LEFT BLANK  City of Hays Planning & Development Division Board of Zoning Appeals Action Report AGENDA ITEM: Side Yard Variance Application #03-22 ADDRESS: 3103 Tam O’Shanter Drive OWNER: Blaine & Kimberly Gabel TYPE OF REVIEW: Interior Side Yard Setback Variance PRESENTED BY: Curtis W. Deines, Planning & Development Superintendent DATE PREPARED: January 27, 2022 MEETING DATE: February 9, 2022 Summary The applicant is requesting a variance to reduce the south interior side yard building setback of a residential property from the required 5 ft. to 3 ft., a variance of 2 ft., to construct an addition to the existing detached garage. Due to this request not meeting the five statutory requirements, especially the spirit and intent of the zoning regulations, staff is not in support of this request. Background The applicant is requesting an interior side yard variance: • Interior Side Yard – 5 ft. to 3 ft. Setback Required Setback Application by Plat Required by NC. Proposed 2 District Front Yard N/A N/A N/A Side Yard (South) N/A 5 ft 3 ft Rear Yard N/A N/A N/A Other Structures N/A N/A N/A • The applicant wishes to construct an addition to the existing detached garage closer to the south side yard property line. • In 2014, under previous regulation, the detached garage was built and was required to be 10% of the width of the lot or a max of 15 ft. from the side  property line. For this reason, the detached garage has a basement to allow for more room since the building could not be placed any closer to the property line or the primary dwelling. If built to today’s regulation, the garage would be 5 ft. from the side property line. STANDARDS OF EVALUATION: (Per State Statute 12-759 and City Unified Development Code) • The BZA has the authority to grant a variance if a literal enforcement of the provisions of the adopted regulations, will, in an individual case, result in unnecessary hardship, provided: o The spirit of the regulations shall be observed o Public safety and welfare secured o Substantial justice shall be done • The applicant must show that the property was acquired in good faith and that the variance is needed due to extraordinary or exceptional circumstances of the property such as exceptional narrowness, shallowness, or shape of the lot. • Before granting a variance on the basis of unusual difficulty or unreasonable hardship, there must be finding by the Board that all of the following conditions exist: a. Uniqueness of the property not ordinarily found in the same zone or district and not created by willful action of the owner. Staff Analysis: This lot is larger than a majority of the other lots near this property (170’ x 146’). Unfortunately, when the home was built in 1975, it was not constructed in such a manner to allow for a large, detached structure on the lot. However, this does not make the lot unique in the context of a variance. b. The granting of the variance will not adversely affect the rights of adjacent property owners. Staff Analysis: This request will have minimal impact on the adjacent property. The structure will be built with a shorter overhang and not allow any water to escape from the roof onto the neighboring property. c. The strict application of the code will constitute unnecessary hardship upon the property owner. Staff Analysis: The detached structure built in 2014 is located 15 ft from the side yard, allowing for a 10 ft addition without a variance. The proposed addition is a self-imposed hardship, and construction of the addition is at the desire of the property owner. The owner desires to keep the existing exterior  Page 2  wall, therefore keeping the existing garage intact, while adding a 12 ft addition for a separate bay. d. The variance will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. Staff Analysis: If granted as proposed, this variance should not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. e. The granting of the variance desired will not be opposed to the general spirit and intent of the regulations. Staff Analysis: Since the UDC regulations were changed to allow for a five foot minimum side yard setback for detached structures, the granting of a variance for a reduced side yard setback in this case does oppose the general spirit and intent of the zoning regulations. Recommended Action None at this time – Public Hearing for consideration of approval will occur on March 9, 2022. Supporting Documentation Images/Maps/Photos Variance application Variance justification and site drawing(s) from owner  Page 3 3103 Tam O'Shanter  Addition location 3 ft Property line is on the south side of the fence  03-2022 01-21-2022 January 21, 2022 50.00 City of Hays, LB