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12-11-1986 ',; o o o . BOARD OF ADJUSTMENTS December 11, 1986 7:00 p.m. Conference Room MINUTES CALL TO ORDER/ROLL CALL The Chairman, Mr. Garthwaite, called the meeting to order at 7:00 p.m. in the Conference Room of City Hall. Members present were: Robert Garthwaite, Chairman, Jimmie Newell, Louise Martin, Alice Murphy, Ray Savini, Robert Wolfe. Richard Moran was absent. Also present were: Mr. and Mrs. Lipscomb, Mr. and Mrs. Tingle, Mr. Dan Nolan, Mr. Geoffrey Bray, Mrs. Helen Hann, Mr. John Scherz, and several interested citizens. Reporters Beth Weilenman and Ted Carter were also present. APPROVAL OF MINUTES Mr. Newell moved the minutes of the meeting of November 10, 1986 be approved, seconded by Mr. Savini. Motion CARRIED 6-0. Mr. Garthwaite then asked the Board to turn to the first item on the agenda: LIPSCOMB, MILDRED - Variance of 170' above 30% allowable Lot Coverage at 111 East Park Avenue. Mr. Newell then swore in Mrs. Lipscomb and Mrs. Lipscomb went on to explain to the Board what has happened to date, involving the buildings on her lot of carport and garage-work- shop. Mrs. Murphy questioned the overage of coverage. Mr. Garthwaite stated the lot is non-conforming, the situation of the houses is non-conforming, and she is now asking for an additional non-conformance. Mr. Garthwaite then stated we must turn to the overage of the coverage, and the Board has to get back to whether it was the fault of the owner. Mr. Garthwaite then asked Mrs. Lipscomb if she had a survey before the building went up and Mrs. Lipscomb answered "Yes". Mrs. Lipscomb also stated nothing was said to her by the Building Department that she and her husband were wrong and that through no fault of her own, no building permit was obtained, of which she was unaware. Mr. Garthwaite replied it may be the owner's responsibility to be sure there is a building permit. Mrs. Lipscomb then stated the builder said he had a copy of the permit in his drawer, which he really did not, in her opinion. Mr. Garthwaite then said this Board has to make tough decisions. It can take a lenient or harsh attitude. Mr. Newell then said the Board has to tighten up on these errors as it leaves us to decide these issues. Mrs. Murphy asked why they didn't bring in the surveyor before the workshop was done. Mrs. Lipscomb answered the measurements she took were from the appraiser,that the difference between the appraiser and Mr. Corey's is where the problem is. Mr. Garthwaite said the appraiser's is not exact and Mr. Corey's measurements are correct. Mrs. Murphy then asked what can be done to correct this situation and Mrs. Lipscomb said they could take the carport down or one-half of the carport. Mr. Wolfe asked the penalty against a builder who does not get a permit and Mr. Garthwaite stated he believes they are charged double the regular fee. The Board then turned to the five criteria. Mr. Garthwaite stated he was not aware of any over coverage in any of the districts, at least during his four years on the Board. Mr. Savini stated that under the criteria "this did not result from the actions of the applicant" was kind of touchy, as the Board doesn't know whether it was the applicant or the contractor, and Mr. Garthwaite answered it depended on which way you look at it; if the owner has the re- sponsibility to make sure everything is up to snuff or if the contractor should have been aware of it, in his opinion. '\ o o ..... ." Mr. Garthwaite then stated the Board has discussed this with Mr. and Mrs. Lipscomb; have discussed it among themselves; and he believes the Board is now ready for a motion. Mr. Newell then said he would like to move that we grant this, but somewhere down the way we have to have lines drawn for cases like this that have already been built and being finished before they come to us for a variance; that if we have to draw the line.then ~e have to draw it. He also stated we shouldn't be put in this position and Mrs. Martin stated we shouldn't have to clean up operations by other departments. Mr. Wolfe seconded the motion. Mr. Garthwaite said what the Board members are saying is partly true, but the Board canlt possibly cover everything in the book, and Mr. Newell stated if Mrs. Lipscomb tears down half of the carport, it is going to look worse with half than with the whole, that is his personal opinion. Mr. Garthwaite then stated that as far as doing anything to help this Board, we should possibly send a letter to Council asking that we do something with the contractors, making sure they understand what they are doing before getting these permits. Mr. Garthwaite then announced it has been moved and seconded to grant this motion, and Mr. Wolfe asked to add a condition that the Building Official be notified that nothing can be built or expanded on this lot, to which condition the Board agreed. Upon roll call, however, _the variance was not granted due to a 3-3 vote, Mr..._ Garthwai te _ then eX2J-aineq to Mrs. Lipscomb it requires a "4 II vote to be granted by this Board, or a majority vote of all members whether they are here or not, and that a 3-3 tie is a "no" vote. Mr. Garthwaite then informed Mrs. Lipscomb that this will be passed on to the Building Official and he will get in touch with her. Mrs. Murphy asked if Mrs. Lipscomb could go to the Courts, and Mr. Garthwaite stated of course, she could go to the Circuit Court and sue the City and the Board of Adjustment. Mrs. Lipscomb then stated she would see to that tomorrow, with Mrs. Murphy adding that is the only appeal they have. NOLAN, DANIEL, Variance of 4.5 feet to front setback at 1014 River- side Drive. Mr. Newell swore in Mr. Noland and Mr. Garthwaite read the request of Mr. Nolan to the Board and asked Mr. Nolan if the patio was 9 foot and Mr. Nolan replied no, it was 8 foot. Mr. Garthwaite said he had looked at the property and homes on both sides are set back the required amount and that Mr. Nolan comes forward about 4~ feet, but Mr. Nolan stated actually he is just 2~ feet from the neighbor to the North side of his house, and that the house portion of his house is actually two feet further back than the required set back. Mrs. Murphy asked Mr. Nolan to please explain the events leading up to this action and Mr. Nolan stated that first of all, he is a new construction company; this is his very first house; that when the plans were drawn, the porch was on the plans for the permit and due to an oversight by his concrete man, the foundation of the house was laid out and formed and at that time it was 42~ feet back from the set backs, not taking into account the front porch. He also stated they failed to realize this until quite some time into construction and it was brought to his attention by a neighbor. He explained the Northeast corner of the house, from the porch, remains 4~ feet too close to the easement, not to the street, as there is a 10 foot easement from the paved portion of the road that is required by the City for utility; and after the porch was put on and the trusses set - Mr. Garthwaite interrupted to ask just where this would be and Mr. Nolan explained the easement from the diagram of the plans, saying actually, they are 52 some feet from the front porch to the street, but from the survey stakes, they had just made an error in judgment and that is why he is here; that it was strictly an oversight and he takes full responsibility, being the contractor. Mrs. Martin asked why he has 65 feet in the backyard when 30 feet is sufficient. Mr. Nolan explained that is how \ much property is there. Mrs. Martin then stated he could have set the house back further, and Mr. Nolan said he could have, very easily, -2- Board of Adjusment Minutes Meeting of December 11, 1986 o o ~_. that there was no reason to bring it forward and the design would have been better if it had been back further. Mr. Wolfe then asked Mr. Nolan if he owned that part that says "part of Lots now in right of way", and Mr. Nolan said yes, he does. Mr. Wolfe then asked Mr. Nolan if he had ever vacated it or dedicated it to the City, for if the Board took into consideration that he owned all that land, he would have no set back problem. Mr. Nolan stated that at the closing, it had been indicated to him that he owned that piece of land, that there are many owners on Riverside Drive who actually own into the street. Mrs. Murphy then asked Mr. Nolan why he continued with consturction once he knew there were questions, and Mr. Nolan said he had gotten so far on the construction; that the way the trusses are designed, he would have lost the roof. he also stated he asked the Building Official's advice and asked if he had to issue a "stop work" order and the Official did not think so. Further discussion followed, with Mr. Nolan stating he takes full responsibility; that the cost to eliminate the porch would put him out of business; that there are other houses along Riverside Drive that are not back forty feet. He also said that wanting to do it right, he decided to come before the Board for a variance. There was quite a discussion as to whether Mr. Nolan could use his' ten foot set back, and he stated he did not believe he could, with Mr. Wolfe disagreeing and saying if Mr. Nolan owns it, and has not dedicated it to the City, it is still Mr. Nolans' property. Mr. Wolfe also said if Mr. Nolan would look on his tax bill he would see he owned Lot 11 and so many feet of Lot 12, Block B, and that is what he will be charged for. Mrs. Martin then asked if, at the time the porch was being built, no one detected the error, and Mr. Nolan said no, not until it was finished, that is how close it was. Mrs. Martin and Mr. Newell agreed this is another case coming before this Board after the work has been done. Mr. Nolan explained the porch had to be poured first according to law and the original plan does show the porch, but he did not catch the mistake at that time. He stated he is just 2~ feet from the property on the one side, and that his neighbor to the North has not replied yes or no, but there is a letter from Mr. Lawrence Lucht. Mr. Newell asked that this letter from Mr. Lucht be read into the record, which the secretary proceeded to do. A further discussion ensued as to Mr. Nolan's survey showing he owns the easement; that he has to landscape to the road, so he must own it. Mr. Nolan stated he believes the question is whether he owns from the stakes or not, that 2~ feet is not a hardship to the City. Mr. Garthwaite stated if Mr. Nolan doesn't need a variance, he wants one to protect himself. Mrs. Murphy asked if we could send this back to the Building Official and ask if a variance is really needed. Mr. Wolfe suggested if he owns that land, he definitely does not need a variance. The Board then turned to the five criteria. Mr. Garthwaite stated if we grant this variance without considering that land, we will have a problem. Mr. Savini then moved we vote on this matter this evening by just considering what Mr. Nolan wants, the 4~ feet from the porch. Motion was seconded by Mr. Newell, withfue added condition that nothing else be added to this porch, no enclosure, no additions. The motion resulted in a 3-3 vote, denying the variance. The Board then discussed with Mr. Nolan the steps he could take. Mr. Noland stated he just could not afford to go to Court. The secretary was then instructed to send a memo to the Building Official, informing him the Board believes there are circumstances and conditions that cause the Board to have serious doubts that a variance is needed and asked the Building Official to consult with the City Attorney as to where the property should be measured, from the stakes or from the house down to the road, where Mr. Nolan is the owner. The Board also asked the Building Official to take no action against Mr. Nolan at this time regarding a "stop work" order; carbon copies to go to the City Attorney, the Planner and City Clerk. -3- Board of Adjustment Minutes Meeting of December 11, 1986 o o ~ GEOFFREY BRAY - Variance, from 8 required parking spaces to 5 spaces for Retail Office use at 108 East Park Avenue. Mr. Bray was sworn in by Mr. Newell and Mr. Savini then asked Mr. Bray just where the driveway is located and Mr. Bray said it is shared with Dr. Christensen, and that parking is in the rear of the building, with two places in the front, but that it is not supposed to be allowed. Mr. Garthwaite stated Mr. Bray has 1600 square feet and he should have eight parking spaces, one for every 200 feet. Mr. Bray stated he has tried to sell it as a beauty salon without success and it is useless because of the parking spaces for any other type of business, and that someone is interested in putting a bookstore in there. The Board discussed the fact that they must know what kind of business would be going in there before they can give a variance, that it could be almost any type. Mr. Bray stated no one has ever tried to change the use, as it has been a beauty shop for seventeen years and has formerly been the Edgewater Post Office. Mr. Bray added he had tried to buy from Dr. Christensen, but it is not negotiable, and therefore the property is now useless. The Board then turned to the five criteria with Mr. Newell moving the variance be granted, seconded by Mrs. Martin, and Mr. Newell adding a condition be added that the shed in the rear be removed, and Mr. Garthwaite adding a condition that parking in the rear be marked with some type of curbstone. Motion CARRIED 6-0. CARPORT REQUEST - 1013 Egret Court, Pelican Cove West Phase I, Mrs. Hann. Mr. Garthwaite announced we have had this case since last August and that he has a ton.' and a half of information but nothing specific. Mr. Newell then swore in Mr. John Scherz, who would speak for Mrs. Hann. Mr. Garthwaite told the Board he had asked for more information from Mrs. Martinez as to set backs applying to the side, and Mrs. Martinez answered they applied only to the rear; she also stated she could not write a memo on this subject as the request is from Council and not the individual. Mr. Garthwaite said the Board would have to act on setbacks of the property - 4 feet on a side set back only. Mrs. Murphy then asked if an 8 foot carport could be built without violating the code and Mr. Garthwaite said yes, but that would be much too tight. A discussion then followed as to the width of the carport being reduced. Mr. Scherz explained this is half of a duplex, with the other half already having a carport and this would balance out the building. Mr.Garthwaite then reiter- ated to the Board the actions already taken in this case, commencing with the granting last summer, coming back and being denied, and the Council sending it back to the Board for reconsideration. Mr. Garthwaite said there is one more person in the Plan with this same problem and he has already applied to this Board for the same variance. The Board discussed the question of widths of various cars, coming to the conclusion that the carport should be at least 10 foot wide. Mr. Wolfe then moved we grant a variance of 2 feet, cutting the carport to a 10x30, seconded by Mr. Savini, with the condition that the utility shed be built on the Northeast corner of the building. Motion CARRIED 6-0. Mr. Garthwaite then asked the secretary to send a memo to the City Planner to consult with the Planning and Zoning Board and Council requesting the City to have the Building Official require replatting after the stem wall or slab is paved, excluding string lines and forms, then send back to the Building Official for his review and approval of the new plat. Mr. Garthwaite added to the memo that the Board would also like to be informed if fireplace chimneys are part of the set back encroachment. There being no further business, Mr. Savini moved the meeting adjourn, seconded by Mr. Newell. Motion CARRIED 6-0 and the meeting adjourned at 9:52. Minutes submitted by Dorothy C. Garrity Board of Adjustment Minutes Meeting of December 11, 1986 -4-