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10-12-1977 ~ ~ I~ ~ , BOARD OF ADJUSTMENTS REGULAR MEETING October 12, 1977 Chairman Millard called the meeting to order at on October 12, 1977 in the Mayor's Office Roll Call Kenneth Millard Neil Asting Lewis Lupinek Jim Poland Jerry Fenske Present Present Present Excused Present The Board read the minutes of the Public Hearing on September 14, 1977. Chairman Millard asked for any corrections or additions. Mr. Lupinek mentioned the question of building a slab up to the property line. Chairman Millard replied that he did not know if this was allowed and he felt that Mr. Loeffler of the Building Inspector's Office should come to one of their meetings to answer this question. The minutes were approved as read. Chairman Millard mentioned the Public Hearing for Mr. Schwartz at which time a point was raised concerning whether or not you measure from the building to the lot line or do you measure from the overhang to the lot line. The Board approved it with the provision that the overhang be included in the measurement. He has since checked with Mr. Murphy, Building Inspector and found out that although there is no special provision or reference to this question in the building code that the Building Inspectors use, it is a common practice to allow overhang of up to two feet. Mr. Murphy suggested that the Board of Adjustments make a resolution or motion to the Council that they include a proper rule in the building permits. Chairman Millard continued by reminding the Board that he had strongly supported the view that the overhang should be included in the amount of the distance. He also brought up a point made by Mr. Poland that a person might build and then cantilever out an overhang of over 10 ft. There has to be some rule of reason on this question. Mr. Lupinek said he did not believe the building inspectors would allow an overhang of more than 2 ft. Mr. Asting said when a garrison house is constructed you have the first floor up and then the overhang could extend 2 ft. on each side and you still have living space above. If that were permitted and a garrison house was constructed it would defeat the purpose of the ordinance. Mr. Millard said that if you maintained zero ground level measurements does it matter about the aerial measurements? Mr. Lupinek asked if they could get a change or a ruling that the Board could go by. Mr. Millard suggested that they get Mr.LQeffler and Mr. Murphy anp possibly Mr. Woods to discuss this question. He also added that there might be a question as to whether this was proper Board of Adjustment business. (.) - 2 o # ...... . ' .. Mr. Asting said that the information should be made available to the Board. Mr. Millard said that it would probably be best if the Building Inspectors made the request to the Council that a change or clarification of this question of overhang be made in the ordinance. Mr. Millard brought up the question of what the Board of Adjustments should do if they discover that a witness has perjured himself before the Board at a Public Hearing. A letter was sent by the Board to the City Attorney concerning this matter. Mr. Woods was supposed to be at this meeting but was unable to attend. Mr. Woods said that he would try to make the next meeting. Mr. Woods did tell Mr. Millard that the matter of perjury should be referred to the State Attorney. Mr. Asting brought up the fact that this was a serious matter because the testimony of people who appear before the Board influences their decision. The Board could make a wrong decision if they received false information. Mr. Millard then brought up the subject of 904 which says that you must make a ruling on this criteria and you must find that they all apply. Before the ordinance was written Dr. Bartley, recognized State's expert.on all zoning and adjustment work, had stated that these were the criteria that the Board should make conclusions about; then in the ordinance which picked up from Dr. Bartley's recommendations somebody changed the word. "should" to "must". Mr. Millard has read that ordinance and that part carefully and it is his opinion that it would be possible to turn down any request for a variance based on that ruling. There is no request for a variance that comes before the Board that could possibly pass the criteria in 904. The criteria should be a guide for the Board to help them make a judgement. Mr. Asting .read from Ordinance 904 (page 127) 904.01 - Criteria for Granting a Variance: Before any variance is granted the Board of Adjustments must find all the following criteria are met. Following is a list of the criteria to be met. ' Mr. Millard said there was probably one or two of the criteria that contradicted each other. Tape IB Mr. Asting said that this Ordinance should be amended. Mr. Millard said that if the Board takes a literal reading of this section of the Ordinance, nobody has a chance to have a variance granted. There is a provision in the case law that is over and beyond this that would have had reference to the fact that regardless of what regulations are in an ordinance a property owner is entitled to reasonable use of his property. If the Board of Adjustments is to be valid in their rulings they must have a substantial ordinance behind them that is reasonable and rational and logical. The Board needs some leeway to be understanding with guidance that maintains the community standards. Mr. Millard said that he feels it should be a joint effort of the Board to suggest changes in this ordinance. Mr. Millard continued that he would take Dr. Bartley's criteria and compare it with the various references to the Board of Adjustment and try to bring our wording more in tune with his since he is the State expert. Mr. Millard adjourned the meeting.