Board of Zoning Appeals (BZA)

MINUTES OF THE BOARD OF ZONING APPEALS April 28, 2021 The Board of Zoning Appeals (“BZA”) of the City of Mission Hills, Kansas, convened for a meeting on April 28, 2021 at 8:30 a.m. by telephone and video conference. PRESIDING: Casey Halsey (via phone) PRESENT: Mark Eisemann, Tom Roszak (alternate), Judy Moore (all via phone) ABSENT: Robert Spake, Mary Jane Barnes ALSO PRESENT: Jill Clifton, City Planner; Todd Ault, City Architect (via phone); Jennifer Lee, City Administrator; Justin Carroll, Assistant City Administrator; Barbara Nelson, City Council Liaison (via phone); Anna Krstulic, City Attorney (via phone); Pete Heaven, BZA Legal Counsel; Anna Italiano, Recording Secretary (via phone) VISITORS: John Wolfe, 2312 Tomahawk Road; Michael Foster, 6552 Overbrook Road; Bethany Reintjes, 6438 Sagamore Road; Jeff White and Michael Stacks, Indian Hills Country Club (“IHCC”); Mike Jackson, President of IHCC Board; Scott Bethune, Legal Counsel, IHCC; Robert Owens, Vice President of IHCC Board; Brian Luger, 3508 W. 69th Street (for IHCC); Chad Lucas, 3316 W. 69th Street (for IHCC); Canaan Zeigler, Scovell Remodeling (for Reintjes); Gary Matthews, 5623 Suwanee Road, Fairway, KS (for IHCC); Kelly Martucci, 3216 W. 69th Street (for IHCC); Lyman Ott, 6821 Tomahawk Road (for IHCC) Ms. Clifton introduced the members of the BZA and City staff. She stated that the meeting will be recorded, and the recording will be deleted after the draft minutes are submitted. She noted that Councilperson Nelson is attending the meeting as City Council Liaison. She explained that City Council Liaisons observe board meetings and report back to the Council but do not participate in any discussion or decision-making. Mr. Halsey called the meeting to order at 8:43 a.m. APPROVAL OF THE MINUTES Ms. Moore moved to approve the minutes of the February 24, 2021 meeting. Mr. Roszak seconded. Approved 4-0. 1 DB02/0739369.0006_0283/10241770.1 APPROVAL OF RESOLUTIONS Mr. Eisemann moved to approve the resolution granting Thomas and Tiffany Ruzicka a variance. Mr. Roszak seconded. Approved 4-0. APPLICATION FOR VARIANCE John Wolfe Variance for side yard setback. 2312 Tomahawk Road A variance of 2 feet is required. Mr. Ault indicated that Mr. Wolfe proposes a new addition to the front/side of his home. The project is in violation of Code Section 5-120.A.1(b) that requires the total width of the two side yards combined for LS-3 lots to be at least 30% of the lot width, which is 42.7 feet for this lot. With the proposed addition, the total width of the combined side yards is 40.7 feet and a variance of 2 feet is required. Mr. Ault noted that Mr. Wolfe's property is adjacent to Willow Lake and the neighboring property is on the other side of Willow Lake. Mr. Casey asked for historical information about the property and setbacks. Mr. Ault replied that the property line was in the middle of the lake until Willow Lake was deeded to the City, at which point the property line became the shore line. He said that the combined side yard requirement was previously 25% but changed to 30% for LS-3 lots within the past few years. Mr. Wolfe said that the house has a much larger front yard. Mr. Eisemann commented that the variance is relatively insignificant. Mr. Roszak said that he is typically not in favor of variances for side yard setbacks but he does not see an issue given the small size of the variance and the position of the house adjacent to the lake. Ms. Moore agreed. Mr. Halsey stated that there are five conditions that must be met for the BZA to grant the 2-foot variance, and any BZA member who votes no on any of the conditions must vote no on any motion to grant the variance. Mr. Halsey read the first condition that the variance requested arises from such condition which is unique to the property in question, and which is not ordinarily found in the same zone or district and is not created by an action or actions of the property owner or the applicant. He noted that this property is unique based on its location next to Willow Lake. The BZA agreed that the first condition had been met, 4-0. Mr. Halsey read the second condition that the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents. Mr. Halsey asked if any neighbors were opposed. Ms. Clifton answered no. Mr. Halsey noted that there is no adjacent property owner because of the lake and City staff have not heard from the neighbor across the lake. The BZA agreed that the second condition had been met, 4-0. Mr. Halsey read the third condition that the strict application of the provisions of the Zoning Regulations of which variance is requested will constitute unnecessary hardship upon the 2 DB02/0739369.0006_0283/10241770.1 property owner represented in the application. The BZA agreed that the third condition had been met, 4-0. Mr. Halsey read the fourth condition that the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. The BZA agreed that the fourth condition had been met, 4-0. Mr. Halsey read the fifth condition that granting the variance desired will not be opposed to the general spirit and intent of the Zoning Regulations. The BZA agreed that the fifth condition had been met, 4-0. Mr. Eisemann moved to approve the 2-foot variance. Mr. Roszak seconded. Approved 4-0. Melissa Foster Variance for fence in platted setback. 6552 Overbrook Road A variance of 16.8 feet is required. Mr. Ault indicated that the Fosters propose a wood fence on the Overbrook Road side of their home. The fence will be painted white and have pickets to match the existing fence. The legal front yard is on Overbrook Road, but the house faces 67th Street. The Fosters want to fence in what rear/side yard they have for their children. Because 67th Street is technically their side yard, the Code allows them to place a wood fence 12 feet to the south of the front of their house which is the visual front yard. City staff doubts that anyone is aware that the front yard is technically on Overbrook Road, but fences are prohibited in the front yard. There is also a 45- foot platted setback on Overbrook Road. Code Section 5-103.139 gives the City Administrator authority to determine the front yard based on the “manner in which the principal building is located on the lot”. The City Administrator is willing to declare the front yard as 67th Street for as long as the house faces 67th Street, if the BZA is willing to grant the variance. By changing the legal front yard to 67th Street, the Fosters can place a wood fence 16.8 feet to the east of their house without violating the side yard setback but they will still need a variance for violating the platted setback. The east side of the house on Overbrook Road sits on the platted setback line. The project is in violation of Code Sections 5-132.B.1 and 5-138.C which state that if a property has a platted setback line then that setback shall apply. A 16.8-foot variance is required for the proposed fence. Mr. Halsey asked if the house has always been in this orientation. Mr. Ault answered yes. He noted that the homeowners did not want a fence in the middle of the visual front yard on 67th Street and the legal front yard does not change the platted setbacks. The proposed fence location would meet the Code if the property was not platted since it is the proper distance for a reverse corner lot. Mr. Halsey asked if the homes on both sides along 67th Street have fences in the same configuration as the proposed fence that the BZA is being asked to approve today. Ms. Clifton replied that one of the homes does not face 67th Street. Mr. Halsey asked for clarification on the fence conundrum. Mr. Ault replied that there is a platted setback, and the Fosters' existing fence sits on that setback line but they have a very small back yard. He noted that this is not the first 3 DB02/0739369.0006_0283/10241770.1 time the BZA has considered a variance for strict platted setbacks. Mr. Roszak said that there is not a lot of space on this size of lot with the platted setback. He said that the platted setback is so wide that it seems unreasonable. Mr. Halsey noted that the house sits tight up against the back lot line at 9.4 feet. Mr. Roszak asked if the house is in conformance with the new setback requirements. Mr. Ault answered that it does not, no matter which way the house faces. Mr. Roszak noted that the house has been there for a while and the Fosters did not create the issue. Mr. Halsey asked if the fence line proposed on the east side of the lot is in accordance with the typical one-third distance for corner lots. Mr. Ault answered yes. Mr. Halsey noted that the proposed fence line will stick out into the neighbor’s front yard view and asked if they commented. Ms. Clifton replied that the neighbor came to City Hall to review the plans and did not have a problem with them. She said that there is a large tree that will hide the fence where it meets the side property line so the neighbor does not think it will impact his view. Mr. Halsey asked about the proposed fence material. Mr. Foster replied that the fence will be similar to the existing white picket fence. Ms. Clifton noted that Ms. Foster talked about doing a board-on-board or board-and-batten fence and painting it white to match the current fence. Mr. Roszak stated that he does not have a problem with a white picket fence, but he does not want to see a board-on-board fence that will create a big white wall on a this corner spot in the City. Mr. Eisemann agreed and said that if the fence is similar to the existing 4-foot picket fence, it will be much nicer than the one on the other side of the driveway. Mr. Halsey confirmed that the BZA is requesting the fence to be a 4-foot white picket fence. The BZA answered yes. Mr. Roszak said that given the position of the house, a white picket fence would be the most attractive option. He noted that board-on-board solid fences along roadways create an unpleasant view and a white picket fence would be a nice added feature to the house. Mr. Halsey asked the homeowner if a white picket fence is acceptable. Ms. Foster answered yes. Mr. Halsey stated that the BZA will proceed on the presumption that their ruling will be based upon a variance for a 4- foot white picket fence with a finial style and double rail. Mr. Roszak added that the approval will also be contingent upon the house remaining in the same orientation that it is currently in. Mr. Foster asked if their address will change with a new front yard. Ms. Clifton answered no. Mr. Halsey stated that there are five conditions that must be met for the BZA to grant the 16.8- foot variance, and any BZA member who votes no on any of the conditions must vote no on any motion to grant the variance. Mr. Halsey read the first condition that the variance requested arises from such condition which is unique to the property in question, and which is not ordinarily found in the same zone or district and is not created by an action or actions of the property owner or the applicant. He noted that the property is unique because of the orientation of the house. The BZA agreed that the first condition had been met, 4-0. Mr. Halsey read the second condition that the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents. He noted that the adjacent property owner has no complaints. The BZA agreed that the second condition had been met, 4-0. 4 DB02/0739369.0006_0283/10241770.1 Mr. Halsey read the third condition that the strict application of the provisions of the Zoning Regulations of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application. The BZA agreed that the third condition had been met, 4-0. Mr. Halsey read the fourth condition that the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. The BZA agreed that the fourth condition had been met, 4-0. Mr. Halsey read the fifth condition that granting the variance desired will not be opposed to the general spirit and intent of the Zoning Regulations. The BZA agreed that the fifth condition had been met, 4-0. Mr. Eisemann moved to approve the 16.8-foot variance. Mr. Roszak seconded. Approved 4-0. Bethany & Stephen Reintjes Variance for rear yard setback. 6438 Sagamore Road A variance of 7.1 feet is required. Mr. Ault indicated that Mr. and Mrs. Reintjes propose to replace an existing storage area attached to their garage. The storage area will be replaced in the same footprint and become part of the garage space. There will be two new garage doors in the renovated façade. Code Section 5-128.C.2 allows for alterations to a nonconforming structure without requiring a variance provided that the alteration does not increase the building footprint or height of the nonconforming portion of the structure. Since the roof height will increase to become part of the garage area, the proposed project does not meet this requirement and requires a variance. The project is in violation of Code Section 5-121.A.1(a) which requires the rear yard to have a minimum depth of 20% of the lot depth at any given point. At its closest point, the existing house is 19.3 feet from the rear property line and 26.4 feet is required. A variance of 7.1 feet is required for the project. Mr. Ault noted that the gable over the garage will be replaced with an eyebrow roof that will be raised to turn the corner and go along the new face of the garage. Mr. Halsey asked if the neighbors’ garage backs up to the property. Ms. Reintjes answered yes. Mr. Halsey asked if the garage is on the Reintjes property. Mr. Ault answered no, the neighbor’s garage goes right up to the easement. Mr. Halsey said that the BZA will take notice of the fact that the Sagamore area is full of nonconforming lots where homes were shoehorned in. He said that the BZA has an interest in allowing homes in the Sagamore area to be modernized and asked about the purpose for changing the configuration of the garage. Ms. Reintjes replied that the current garage is a very narrow two-car garage with a haphazardly located storage space which makes it difficult to park or get bicycles and strollers in and out. The interior of the addition is also dilapidated plywood. The goal is to improve the function and storage of the home, while also improving the aesthetics by cleaning up the roof line. The project will be an improvement for them and anyone who has to look at that space. 5 DB02/0739369.0006_0283/10241770.1 Mr. Halsey asked if there were comments from any neighbors. Ms. Clifton replied that the rear neighbors submitted a letter expressing concerns about the side windows and the fact that the storage area will be a few feet taller. She stated that the letter was presented to the Architectural Review Board (“ARB”). Ms. Reintjes said that they have letters from the neighbors on either side of their property and they are in favor of the project. Mr. Halsey requested that those letters of approval be submitted to the City. Ms. Reintjes agreed. Mr. Eisemann said that this neighborhood has difficult lot situations, and the BZA has had similar requests in the past where there have been sheds on the side and the garage needed to be expanded. He said that he would be in favor of granting this variance. Mr. Roszak said that the overall footprint is not going to change, and the project will add to the overall appearance. He noted that the shed looks out of place and he sees no problem with the request for a variance. Mr. Halsey stated that there are five conditions that must be met for the BZA to grant the 7.1- foot variance, and any BZA member who votes no on any of the conditions must vote no on any motion to grant the variance. Mr. Halsey read the first condition that the variance requested arises from such condition which is unique to the property in question, and which is not ordinarily found in the same zone or district and is not created by an action or actions of the property owner or the applicant. He noted that the Sagamore district is replete with homes that are tucked irregularly into property lines which is not a result of actions by the homeowners. The BZA agreed that the first condition had been met, 4-0. Mr. Halsey read the second condition that the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents. He noted that the change in height is minimal and the footprint remains the same. The BZA agreed that the second condition had been met, 4-0. Mr. Halsey read the third condition that the strict application of the provisions of the Zoning Regulations of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application. He noted that there is a need to modernize homes in the Sagamore area. The BZA agreed that the third condition had been met, 4-0. Mr. Halsey read the fourth condition that the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. The BZA agreed that the fourth condition had been met, 4-0. Mr. Halsey read the fifth condition that granting the variance desired will not be opposed to the general spirit and intent of the Zoning Regulations. The BZA agreed that the fifth condition had been met, 4-0. Mr. Eisemann moved to approve the 7.1-foot variance. Mr. Roszak seconded. Approved 4-0. 6 DB02/0739369.0006_0283/10241770.1 Indian Hills Country Club Appeal of ARB decision to deny project. 6847 Tomahawk Road Ms. Krstulic stated that the IHCC is appealing the decision of the ARB to deny their request for a protective net or fence along the 69th Street driving range. She said that the ARB considered the proposal in two separate meetings and those minutes are included in the BZA packet. The ARB denied the permit application on March 2, 2021 because in their review of the findings they did not believe that the project met the first finding required for ARB approval. The first finding states that that the structure to be erected or altered does, or will, meet the customary architectural requirements in appearance and design for a structure of the type proposed, and that the proposed structure is, or will be, in general conformity with the style and design of surrounding structures. Ms. Krstulic said that the ARB found that the proposal failed to meet this finding because a net of the proposed size is not in general conformity with the style and design of surrounding structures. Mr. Halsey stated that the role of the BZA is to review the existing evidence in the record and will hear no new testimony or evidence. He said that the standard for the BZA's review is reasonableness, so the only question before them is whether or not the ARB’s decision was reasonable based on the information that they received and reviewed and the regulations. He requested the IHCC to present their case. Mr. Bethune stated that they submitted a letter to the BZA that sets forth what IHCC thought should be the reasons for reversing the ARB’s decision. He said that in that letter, they went through the five criteria based on what was in the record at the ARB level and that letter is the basis for their appeal. Essentially, this project is something that IHCC wanted to do to improve safety along 69th Street in preventing the risk of harm or danger to adjacent properties as well as pedestrians or vehicular traffic. Mr. Halsey asked if there are any other points from the letter that the IHCC would like to summarize. Mr. Bethune replied that the safety measures that the IHCC has taken over the years have been exhausted as far as all feasible measures to reduce or eliminate errant golf balls. He said that the net was the recommended safety measure and IHCC relied on experts that erect such structures. Mr. Halsey asked how the ARB decision was unreasonable. Mr. Bethune replied that IHCC believes that the variance requested is unique to the property because it is the only driving range in the City that is adjacent to a public street. He said that the IHCC feels that the adjacent property owners' rights will not be affected because the structure will prevent golf balls from going into their yards, as well as protect those on 69th Street. This is a commitment to public safety and the wellbeing of the entire neighborhood. Mr. Halsey requested that Ms. Krstulic address these comments. Ms. Krstulic replied that this is not a variance but an appeal of an ARB decision and the standard of review is whether the ARB’s decision was reasonable based on the information that they received. She stated that the ARB considered this matter in two separate meetings and heard testimony from various individuals on behalf of IHCC as well as the neighbors. Upon review of the findings, the ARB ultimately decided that the matter failed to meet the first finding because a net of the proposed size is not in general conformity with the size 7 DB02/0739369.0006_0283/10241770.1 and style of the surrounding structures. Mr. Halsey noted that there is a high hill to climb with the standard of reasonableness. He asked if the IHCC has any other comments as to why the ARB was unreasonable in trying to preserve the aesthetics and the Design Guidelines in the City. Mr. Bethune replied that the IHCC submitted various options and colors of netting with various pole sizes. He noted that everything else should be contained in the record as it pertains to the IHCC’s position. Mr. Halsey asked the members of the BZA if they heard anything that would cause them to question the reasonableness of the ARB’s decision. Mr. Eisemann replied that it is clear why the IHCC is looking for a solution to this issue, and although the BZA did not listen to all of the evidence and concerns of the neighbors, this situation has been there for a long time and ultimately the role of the BZA is to look at whether or not the ARB considered everything and was reasonable in their decision. He said that he finds that the ARB’s decision was reasonable and suggested that the IHCC look for other alternatives to address the concerns they are trying to solve. Mr. Roszak noted that while he understands the concern, the driving range is in a bad location and he does not like the idea of netting along 69th Street. He stated that he has not heard or seen anything that would cause him to believe that the ARB was not reasonable in their decision. Ms. Moore agreed. Mr. Heaven stated that based on the discussion of the BZA, the motion should be to deny the appeal on the basis that the decision of the ARB was reasonable. Mr. Eisemann moved to deny the IHCC's appeal because the ARB came to a reasonable conclusion based on the facts. Mr. Roszak seconded. Approved 4-0. Meeting adjourned at 9:36 a.m. /s/Anna Italiano Recording Secretary 8 DB02/0739369.0006_0283/10241770.1