Board of Zoning Appeals (BZA)

MINUTES OF THE BOARD OF ZONING APPEALS May 26, 2021 The Board of Zoning Appeals (“BZA”) of the City of Mission Hills, Kansas, convened for a meeting on May 26, 2021 at 8:30 a.m. by telephone and video conference. PRESIDING: Casey Halsey (via phone) PRESENT: Mark Eisemann, Mary Jane Barnes, Judy Moore, Russell Weltner (alternate) (all via phone) ABSENT: Robert Spake ALSO PRESENT: Jill Clifton, City Planner; Todd Ault, City Architect (via phone); Barbara Nelson, City Council Liaison (via phone); Anna Krstulic, City Attorney (via phone); Anna Italiano, Recording Secretary (via phone) VISITORS: Casey Krager, New Leaf Landscape, LLC (for Nottberg); Eric Nystrom, 3007 W. 67th Street (for Nottberg); Leigh Nottberg, 3002 W. 67th Terrace 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 8:32 a.m. APPROVAL OF THE MINUTES Mr. Eisemann moved to approve the minutes of the April 28, 2021 meeting. Ms. Moore seconded. Approved 5-0. APPROVAL OF RESOLUTIONS Mr. Eisemann moved to approve the resolution granting John Wolfe a variance. Mr. Weltner seconded. Approved 5-0. Mr. Eisemann moved to approve the resolution granting Melissa Foster a variance. Ms. Moore seconded. Approved 5-0. Mr. Eisemann moved to approve the resolution granting Bethany and Stephen Reinjtes a variance. Ms. Moore seconded. Approved 5-0. 1 DB02/0739369.0006_0283/10245895.1 Mr. Eisemann moved to approve the resolution denying the appeal of Indian Hills Country Club. Ms. Moore seconded. Approved 5-0. APPLICATION FOR VARIANCE David & Diane Zimmer Variance for fence. 5924 High Drive A variance of 14 inches is required. Mr. Eisemann moved to continue the project to the June 30, 2021 meeting. Ms. Moore seconded. Continued 5-0. Leigh & Tyer Nottberg Variance for patio in platted setback. 3002 W. 67th Terrace A variance of 10 feet is required. Mr. Ault indicated that the Nottbergs propose to replace and expand their existing patio and add a pergola, expand their existing outdoor kitchen, and add a new outdoor fireplace. Part of the new patio and a grill station are located 10 feet from the property line which is closer than allowed by the Zoning Regulations. The project is in violation of Code Section 5-121.D which requires a minimum 20-foot setback from the side and rear property lines for patios on LS-2 lots. A setback of 10 feet has been provided at the rear and a variance of 10 feet is required. Mr. Ault noted that the black-shaded area on the site plans represents the existing hardscape and the blue-shaded area represents the proposed addition. He said that a small portion of the proposed patio addition is in violation of the setback. Mr. Halsey asked for clarification on the blue hatched area by the outdoor kitchen. Mr. Ault confirmed that the area is part of the outdoor kitchen and the owners propose to expand the existing grill station to extend the countertop and create a patio section to allow for barstools. Mr. Halsey asked if the countertop is part of the violation. Mr. Ault replied that he does not believe so, but it might be a tiny bit. Mr. Halsey clarified that the owners can rebuild the existing nonconforming patio but cannot expand if the variance is denied. Mr. Ault answered yes. Ms. Barnes asked for clarification of the exact area that needs a variance. Mr. Ault outlined the area on the site plan. Mr. Halsey stated that the BZA has identified the area in violation, and it appears to include the pad for barstools up against a new bar that would be built on the existing nonconforming patio. He noted that the proposed pad is north of the 20-foot setback and the BZA is inclined not to approve. Ms. Nottberg said that she understands but they are trying to be as creative as possible. She said that they have a great lot, but the home was built far back, which is unique because it leaves a small area for the backyard. She said that she understands they are asking for something against the rules, but their goal is to create a more functional space. She said that they would love to have the barstools if possible. Mr. Halsey stated that all City residents want full use of their backyards, but the BZA is concerned with following the rules established by the City to make sure that the occupancy of one neighbor does not infringe on another neighbor and adding a bar 10 feet back from the fence creates an opportunity for noise. He said that there are limitations on all properties in the City 2 DB02/0739369.0006_0283/10245895.1 and the house was purchased with a narrow backyard. Mr. Halsey said that the BZA tries to take unique circumstances into consideration, such as unique geography or neighborhoods that are more constrained like the Sagamore area, but he is having a hard time finding something unique about this property. Ms. Nottberg said that she understands that the house was originally approved to have a small backyard, but they will be using the patio space either way. She noted that sitting at a table on the existing patio is the same distance from the neighbors as the proposed barstools. She said that she spoke with her neighbors to the right rear to make sure they are ok with the proposal, and the only issue they identified was to make sure the fireplace will not be wood-burning because of the smoke. Ms. Nottberg said that they are very lucky to have lovely neighbors, and she is very conscious of keeping them happy. She stated that they can be flexible, but she wants a little extra space outside. Mr. Halsey said that he understands but if the patio was not already there, it would not be allowed. The existing nonconforming patio is allowed to remain, but this does not allow for expansion. Mr. Eisemann asked if the 10-foot setback was required when the house was built. Ms. Clifton replied that the setback requirements for patios changed two years ago from 10 feet to 20 feet. Mr. Eisemann asked if the homeowners have figured out how to achieve 330 square feet of additional greenspace required by the Architectural Review Board ("ARB"). Ms. Nottberg replied that they have a few ideas, but changing the driveway is not an option. She said that they will try to create a smaller patio addition, but they have not solidified anything yet. Mr. Eisemann suggested postponing the variance until the new design for hardscape and greenspace is provided. Mr. Krager said that if the variance is not approved today, they will eliminate the area in question. Mr. Weltner noted that this is a really small area in the backyard adjacent to a patio that has already been grandfathered in and he does not think adding an area for barstools will make that much of a difference. Mr. Halsey asked the homeowner if she would like to have more time to redesign before requesting a variance. Ms. Nottberg replied that she is fine with a decision either way, but it would be helpful to know the stance of the BZA before making changes. Mr. Nystrom said that he is a rear yard neighbor and he is more concerned about drainage than noise. He stated that his property gets a lot of water runoff because they are at a lower elevation, and they especially have a problem on the western side. He said that he is not sure which way water drains off of the existing patio, but he wants to make sure more water will not drain into his yard with the expanded patio. Mr. Halsey asked if the BZA has any further comments. Mr. Eisemann replied that he understands what Ms. Nottberg is saying, and he is prepared to move forward with the process or the homeowner can come back at a later date. Ms. Barnes agreed. Mr. Halsey stated that the homeowner believes a BZA decision will be instructive so they will move forward with considering the criteria for granting a variance. He stated that there are five conditions that must be met for the BZA to grant the 10-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 3 DB02/0739369.0006_0283/10245895.1 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. Ms. Barnes, Mr. Halsey, and Mr. Eisemann voted no. Mr. Weltner and Ms. Moore voted yes. The first condition has not been met, 3-2. 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 said that one of the reasons the City created setbacks and guidelines was to address water runoff problems. Ms. Barnes, Mr. Halsey, Mr. Eisemann and Ms. Moore voted no. Mr. Weltner voted yes. The second condition has not been met, 4-1. 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. Ms. Barnes, Mr. Halsey, Mr. Eisemann and Ms. Moore voted no. Mr. Weltner voted yes. The third condition has not been met, 4-1. 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. Ms. Barnes, Mr. Halsey, Mr. Eisemann and Ms. Moore voted no. Mr. Weltner voted yes. The fourth condition has not been met, 4-1. 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. Ms. Barnes, Mr. Halsey, Mr. Eisemann and Ms. Moore voted no. Mr. Weltner voted yes. The fifth condition has not been met, 4-1. Ms. Krstulic stated that all of the required findings have failed so the motion would be to deny the variance. Mr. Eisemann moved to deny the variance. Ms. Moore seconded. Denied 4-1. Mr. Weltner voted against denying the variance. Mr. Halsey stated that the BZA tries to be neighborly, but they cannot approve the variance. Mr. Eisemann asked if the water issue is handled by the ARB. Mr. Halsey replied that it should be and there may be a requirement for a drainage study. Ms. Clifton said that now that the City has heard Mr. Nystrom’s comments about water runoff, they will make sure that drainage is part of the next ARB discussion. She said that the City was not aware of any existing water issues. Ms. Nottberg noted that her property is above the Nystroms but is not the only property that causes runoff. She said that she does not want to take credit for all of the water draining from the neighbors who just recently added landscaping. Mr. Ault said that Ms. Nottberg will be required to do a drainage study because they are at the maximum lot coverage and within 3% of the minimum greenspace recommended by the Design Guidelines. He said that the point of the study is to compare water runoff before and after the proposed project, whether or not that includes water from the Nottbergs' neighbors. He confirmed that the Nottbergs do not have to solve the neighbors' water problems, but they cannot make them worse. Ms. Nottberg said that she was not 4 DB02/0739369.0006_0283/10245895.1 informed by the City that she had to do a drainage study. Mr. Ault said that the City does not normally require drainage studies ahead of time in case the ARB or BZA changes or rejects a project because drainage studies are costly. He said that it is easier and less expensive to the property owner to complete a drainage study after the plan is final because there is an additional cost to revise drainage studies. Meeting adjourned at 9:08 a.m. /s/Anna Italiano Recording Secretary 5 DB02/0739369.0006_0283/10245895.1