Board of Zoning Appeals (BZA)

BOARD OF ZONING APPEALS MINUTES November 30, 2022 9:00 a.m. PRESIDING: Casey Halsey PRESENT: Judy Moore, Gabe Beam, Kent Barnow ALSO PRESENT: Jill Clifton, City Planner; Todd Ault, City Architect; Anna Krstulic, City Attorney; Jennifer Lee, City Administrator; Jennifer Winfrey, Deputy City Clerk; Bryce Morgan, Planner; Barbara Nelson, City Council Liaison (via Zoom) VISITORS: Prentice Hanes, 6300 Belinder Ave. Approval of Minutes – October 26, 2022 Ms. Beam moved to approve the minutes. Mr. Barnow seconded. Approved 4-0 Application for variance Fence in violation of a platted setback. Prentice and Lyndse Hanes 6300 Belinder Ave. 16' 5" variance Ms. Beam moved to deny the variance. Mr. Barnow seconded. Denied 4-0 10' variance Ms. Beam moved to approve the variance, provided that the fence must be moved by April 1, 2023. Ms. Moore seconded. Approved 4-0 Mr. Ault explained that the Architectural Review Board (ARB) approved the fence on the condition that it be moved to be 10 ft. into the platted setback, requiring a 10 ft. variance. The Hanes are asking the BZA for a 16.5 variance which would allow the fence to remain in its current location. Mr. Halsey stated that the BZA had reviewed its historical decisions re: fences in platted side yard setbacks on corner lots. The BZA also reviewed the platted setbacks in the area and the planned nature of the setbacks, especially along Belinder Avenue corridor. The BZA reviewed the City Arborist’s evaluation of the planting along the Hanes’ fence. Ms. Krstulic noted that if any BZA member voted that any of the five conditions had not been met, that member would need to vote against any motion to approve the variance request. Mr. Halsey stated that the BZA would go through the five conditions in response to the request for a 16.5 ft. variance. 1. 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. Mr. Halsey stated that the platted setbacks have existed in the City for many years and the property across Belinder Avenue also has a 50 ft. platted setback along 63rd Street. The lot it not unique in that it is relatively flat, has no stream or severe grade change, and is not an oddly shaped lot. Mr. Barnow said that the platted setbacks on the south side of 63rd Street between Belinder Avenue and Norwood Road intentionally steps down with 6300 Belinder Avenue having a 50 ft. platted setback because it is the entrance to Belinder Avenue which is a key street in the City. The BZA agreed that this condition had not been met, 4-0. 2. That the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents. Mr. Halsey mentioned that in recent years, the BZA had not approved more than a 10 ft. variance for a platted side yard setback except in one unique situation. The BZA agreed that this condition had not been met, 4-0. 3. That the strict application of the provisions of the zoning ordinance of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application. Mr. Ault stated that the Hanes argued in their application that moving the fence would cause them to move a tree and a bush, cut a custom fence, and result in shrubs being killed. Mr. Halsey stated that the Hanes placed the fence in a location that was not approved by the ARB and then planted vegetation close to the fence. Mr. Barnow commented that the Hanes’ actions created their hardship. The BZA agreed that this condition had not been met, 4-0. Mr. Hanes asked about the process for changing his platted setback. Ms. Krstulic indicated that the City could provide the section of the Zoning Regulations that list the procedure for replatting a property. Mr. Hanes stated that his 50 ft. platted setback is more than the two properties to the west and hinders the use of their yard. Mr. Halsey stated that these setbacks were platted years ago and Mr. Hanes should have known about the setback when he purchased the property. 4. That the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. The BZA agreed that this condition had been met, 4-0. 5. That granting the variance desired will not be opposed to the general spirit and intent of the zoning ordinance. The BZA agreed that this condition had not been met, 4-0. Ms. Beam moved to deny the request for a 16.5 ft. variance. Mr. Barnow seconded. 16.5-foot Variance Denied 4-0. Mr. Halsey stated that the BZA would go through the findings for the 10 ft. variance which is the location that the ARB approved. Ms. Clifton reviewed the list of recent variances that had been granted for fences in platted side yard setbacks. 1. 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. Mr. Halsey indicated that the BZA had granted 10 ft. variances for fences in platted side yard setbacks in the past. The BZA agreed that this condition had been met, 4-0. 2. That the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents. The BZA agreed that this condition had been met, 4-0. 3. That the strict application of the provisions of the zoning ordinance of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application. The BZA agreed that the first condition had been met, 4-0. 4. That the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare. The BZA agreed that this condition had been met, 4-0. 5. That granting the variance desired will not be opposed to the general spirit and intent of the zoning ordinance. The BZA agreed that this condition had been met, 4-0. Ms. Beam made a motion to grant a 10 ft. variance for the fence. Ms. Moore seconded. 10-foot Variance Approved 4-0. Mr. Halsey indicated that the BZA is requiring the fence be moved to comply with the 10 ft. variance by April 1, 2023. Ms. Beam agreed to revise her motion to include the deadline. Ms. Moore seconded the revised motion. 10-foot Variance Approved with Conditions 4-0. Mr. Halsey commented to Mr. Hanes that no one in recent memory had requested their platted setback be moved. Mr. Hanes asked what would happen if he could not have his replat acted on before April 1st. Mr. Halsey answered that Mr. Hanes would need to come back to the BZA and ask for an extension. Ms. Clifton said that Mr. Hanes should be able to complete the replat process by April 1st. Mr. Ault noted that if the replat is approved, he would need to apply for a new variance if one is required for the current fence location.