Board of Zoning Appeals

HAYS AREA BOARD OF ZONING APPEALS MEETING AGENDA CITY COMMISSION CHAMBERS 1507 MAIN, HAYS, KS RESCHEDULED TO WEDNESDAY, MARCH 16, 2022 8:15 A.M. 1. CALL TO ORDER BY CHAIRMAN. 2. CONSENT AGENDA. A. Minutes of the regular meeting of February 9, 2022. Action: Consider approving the minutes of the February 9, 2022, regular meeting. 3. PUBLIC HEARING ITEMS. A. Public Hearing for Blaine and Kimberly Gabel for a request of a 2-foot variance to reduce the interior south side-yard setback from 5 feet to 3 feet to construct an addition to a detached garage at 3103 Tam O’Shanter Drive, Hays, Kansas. Action: Consider approving the variance on the south interior side yard setback to construct an addition to a detached garage at 3103 Tam O’Shanter Drive, Hays, Kansas. 4. NON-PUBLIC HEARING ITEMS. A. None 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, Inspection and Enforcement office (785-628-7310) 48 hours prior to the scheduled meeting.  DRAFT HAYS AREA BOARD OF ZONING APPEALS COMMISSION CHAMBERS IN CITY HALL FEBRUARY 9, 2022 1. CALL TO ORDER: The Hays Area Board of Zoning Appeals met for the regularly scheduled meeting on Wednesday, February 9, 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: Collin Bielser, Assistant City Manager, Jesse Rohr, Director of Public Works, Curtis Deines, Superintendent of Planning and Development, and Linda Bixenman, Administrative Assistant. 2. CONSENT AGENDA: A. MINUTES: Russell Koenigsman moved; Brian Garrett seconded the motion to approve the minutes as submitted from the January 12, 2022, meeting. Vote: AYES: Lou Caplan, Russell Koenigsman & Brian Garrett. 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, 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 42-inch-high fence up to 72 inches (6 ft) in the front setback of 1303 Tallgrass Drive. The applicant owns two parcels at 1303 Tallgrass Drive. The previous owner purchased the 1301 and 1303 Tallgrass parcels and built a compliant fence of 42 inches in height. Current regulation allows a maximum of a 42-inch-tall fence in residential districts at the front property line. The owner has the option to build a 6-foot fence at the front setback keeping it in line with the house. He showed the pictures of the site and proposed area for the fence. He explained the five statutory requirements that are to be satisfied for approval and how they are associated with this property. 1 Staff Analysis: The granting of the variance for the proposed 6-foot fence would oppose the general spirit and intent of the regulations. This is a self-imposed hardship. History No history for this type of case. He presented the options to the Board, and the recommended action. Lou Caplan explained that in accordance with the Kansas Open Meetings Act, the first part of the meeting will be a public hearing and then it will be closed for the Board members to discuss the case and make a motion. Lou Caplan opened the public hearing. Justin MacDonald, applicant, came before the Board to present his request for the fence height variance. He is asking for about 50 or 60 feet for a six-foot fence height within the front of the property. It is less than 15% of the property. There is a six-foot fence around the rest of the property, including the concrete wall greater than six feet in many different spots on the south side of the property. He presented two handouts to the Board: 1. A site with proposed fence and a picture of the appearance of the street view of the home. 2. Signatures from neighbors of their support of the fence height variance request. He stated that even before they knew about the code, they considered moving the fence back. They had talked to their landscaper and due to a few reasons, it would be a lot more expensive. The landscaper estimated that it would cost an extra $8,000. There would be some sprinkler heads and hoses they would have to fix. They would have to level out the yard. They decided against it and decided on the six-foot proposed fence. He stated that to be frank with the Board, they cannot afford the extra cost to set it back. It is not an option for them at this point. Given that, he stated that their concern with the three-foot fence, is for the safety of their girls. There were a couple stray dogs in the neighborhood, and one jumped the fence while one of the girls was in the yard. They chased it back over the fence. They also hope to get a dog someday to keep in the yard. They must consider the safety of being adjacent to 13th Street. It would not block sight lines of the neighbors. Also, there is a minor issue to consider for privacy of the south window of their home. Every time someone turns in to the Tallgrass neighborhood, the lights shine in their bedroom. To Curtis’s point, he noted a couple of things. He stated that this is truly a unique situation. He has driven around town trying to find a situation like this and there is nothing in town like it. 2 As to the spirit and intent, he strongly disagrees. There are places where fences were built right up to the road. Of course, you would not want to block sight lines from neighbors. He understands from that point that you would not want more than 40 inches. There would not be any sight lines blocked with his situation. The concrete wall is six feet and higher in some places. Per his interpretation, he did not see how it violates the spirit and intent in any way. He reiterated that it was only 50 or 60 feet of fence out of several 100 feet of fence. As per the answer to whom the concrete wall belongs, he believes it belongs to him since it is more than 50 feet from the center of the road. Justin MacDonald referred to the sheet he handed out with the neighbor’s signatures of support. He entertained any questions from the Board. Brian Garrett asked if he could explain about the $8,000 cost difference to move the fence back. Justin MacDonald answered that in talking with the landscaper to get a six-foot fence, they would have to raise/fill in the ground about two feet. Some concrete would need to be torn out and poles set again. There would be a few sprinkler heads to fix as well. Brian Garrett asked if he would have to replace the poles? Mr. MacDonald answered that he would have to weld an extra two feet to the pipes. He was told it would be an extra $500. Brian Garrett noted that as a contractor, he pointed out it would cost more than $500 to add to the pipes. If he has bought the pickets, they could be cut in half for the shorter fence. Lou Caplan asked for other comments. There were no more comments from the audience. Lou Caplan closed the public hearing for the board to discuss this case. Brian Garrett asked a question of Curtis Deines stating that it was mentioned that there are not any other lots like this in town; although there are some double lots in town and several places the fence is at the house across to the neighbor’s house. Curtis Deines answered that the difference is that the proposed fence is in front of the house further than the front setback. It is between the property line and the setback line. Brian Garrett asked if a double lot with a fence in the front would have to be tapered down. Curtis Deines answered that was correct. There are some decorative fences also. Russell Koenigsman pointed out the concrete fence corner portion that angles out to the front yard further than the house and asked if that is against the regulations. Curtis Deines answered that technically it would be. That was built in 2009 or 2010. 3 Lou Caplan stated, that except for public health, it does not meet the five statutory requirements, particularly that it is a self-imposed hardship. He did not want to set precedent. Brian Garrett concurred. This would open requests for the taller fences in the front yard. Motion: Brian Garrett moved; Russell Koenigsman seconded the motion to deny the variance request for fence height from 42 inches up to 72 inches (6 ft) in the front setback of the property located at 1303 Tallgrass Drive due to the consideration it does not meet the five statutory requirements. Vote: AYES: Lou Caplan, Russell Koenigsman & Brian Garrett. Lou Caplan informed the applicants they may appeal the action of this case to the Ellis County District Court within 30 days. B. Public Hearing for an eleven-foot variance to reduce the south side yard platted building setback from the required 25 feet to 14 feet to construct a detached garage in the backyard at 3000 Northridge Court, Hays, KS. Curtis Deines provided a PowerPoint presentation of the applicant’s request for an 11-foot variance to reduce the south 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. The applicant plans to have the doors facing south for easier access. 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 replating, a variance is the only relief of the more restrictive regulation. He showed the pictures of the site and proposed garage. 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. He provided the recommended action and asked for questions. Lou Caplan explained the Kansas Open Meetings Act procedure and opened the public hearing. 4  Scott Hess, applicant, came before the Board to answer any questions. Brian Garrett asked if the plan is to move the fence back. Scott Hess answered that they would move the fence back next to the house adjacent to the garage. Brian Garrett noted that would improve the sight lines on the lot. Lou Caplan closed the public hearing for the Board to discuss this case. Brian Garrett stated that he had nothing further. Lou Caplan stated that since this variance request does not violate any of the zoning laws, he did not see any reason to force someone to replat the land in order to build the detached garage. Russell Koenigsman concurred. Lou Caplan entertained a motion. Motion: Russell Koenigsman moved; Brian Garrett seconded the motion to approve the eleven-foot (11’) variance to reduce the south side-yard building setback of a residential property from the platted twenty-five feet (25’) to fourteen feet (14’) to construct a detached garage at 3000 Northridge Court based on the consideration that it does meet the five statutory requirements. Vote: AYES: Lou Caplan, Russell Koenigsman & Brian Garrett. 4. NON-PUBLIC HEARING ITEMS: A. Request for a Public Hearing by Blaine and Kimberly Gabel for a two-foot variance to reduce the interior south side-yard building setback from the required five feet to three feet, for an addition to a detached garage at 3103 Tam O’Shanter Drive, Hays, KS. Curtis Deines provided a PowerPoint presentation of the applicant’s request for a two-foot variance to reduce the south interior side-yard building setback from the required five feet (5’) to three feet (3’) to construct an addition to the existing detached garage at 3103 Tam O’Shanter Drive, Hays, KS. The detached garage was built in 2014 to the required setback of 15 ft. under the previous regulations. If built to today’s regulations, the garage could be five feet from the side property line. He showed the pictures of the site and proposed garage. He explained the five statutory requirements that are to be satisfied for approval and how they are associated with this property. 5  Staff Analysis: The granting of the variance would oppose the general spirit and intent of the regulations. Since the regulations were changed to lessen the setbacks to five feet for an accessory structure, the request for a lesser setback does oppose the general spirit and intent. History: Since 2016 there have been five variance cases approved for a reduction of side-yard setback of an accessory structure. No action at this meeting. There will be a public hearing on March 9, 2022. There will be a publication notice and notification to the abutting property owners of the public hearing. There were no questions. 5. OFF AGENDA ITEMS/COMMUNICATIONS: A. None. ADJOURNMENT Lou Caplan adjourned the meeting at 8:43 a.m. Submitted by Linda K Bixenman, Administrative Assistant 6 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: February 23, 2022 MEETING DATE: March 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, particularly 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.  • The detached garage was built in 2014 to the required setback of 15 ft. under the previous regulations. If built to today’s regulations, the garage could be five feet 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 most of the other lots near this property 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 would 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 wall, therefore keeping the existing garage intact, while adding a 12 ft. addition for a separate bay.  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: 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. Options • Do not approve the variance as submitted • Approve variance with conditions • Approve variance request as submitted Recommended Action Motion to not approve the variance request due to not meeting the hardship or spirit and intent statutory requirements for a variance. 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 Linda Bixenman, Administrative Assistant Published on the City of Hays Web Page – February 14, 2022 to February 28, 2022 BEFORE THE HAYS AREA BOARD OF ZONING APPEALS THE CITY OF HAYS, KANSAS NOTICE TO: Blaine M & Kimberly H Gabel 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 Blaine M & Kimberly H Gabel. The subject of the hearing shall be a request by Blaine M & Kimberly H Gabel for a two foot (2’) variance to reduce the south interior side yard setback of a residential property from the required five feet (5’) to three feet (3’) to construct a detached garage at Lot 14 & S 70 feet of Lot 15, Block 1, Country Club Estates 2nd Addition, Ellis County, Kansas generally known as 3103 Tam O’Shanter Dr., Hays, KS. You are hereby notified that a hearing will be had upon said appeal on the 9th day of March 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