August 20, 2003

City Hall - 1st Floor

7:00 P.M.

A) CALL TO ORDER

The meeting was called to order by Acting Chairman Nuttle at 7:00 P.M.

B) ROLL CALL

Members Present: Nuttle, Anderson, Cross and Horton,

Members Excused: Withrow, Witthoeft and Miller

C) DESIGNATION OF ALTERNATES

Mr. Horton was designated as voting members of the Board.

D) APPROVAL OF MINUTES

The minutes of June 18, 2003 were approved as submitted.

E) APPROVAL OF AGENDA

The Agenda was approved as presented

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

There were no potential conflicts of interest

G) PUBLIC HEARINGS

1. Case #03-18ZBA - 101 Auld -Roby - Request to table

Mr. Dan Barron was present as the representative for Mr. Roby. He stated that the Applicant is proposing to move the "Apple Tree" building to parcel "B".

He stated that parcel "B" is a legal lot of record. The width of the "Apple Tree" building is approximately 34' and the width of parcel "B" is approximately 36'. There are extenuating circumstances involved with this lot such as the location of the alley and cedar trees.

Preserving the "Apple Tree" building would be a benefit to the community. A revised site plan proposal will be presented for the necessary variances. For this reason, the Applicant is requesting that his original request be tabled.

Mrs. Baldwin, resident, stated this new proposal is ludicrous based on the size of the lot.

Motion by Cross

Supported by Horton

to table Case #03-18ZBA to revise the original proposal.

Ayes: Nuttle, Cross, Horton and Anderson

Nays: None

Motion Carried

2. Case #03-22ZBA - 215 Park Avenue - Nelson

Acting Chairman Nuttle called the case. Mr. Nuttle and Mrs. Cross indicated that they have visited the site. Ms. Jodie Lyon

stated that the Nelson's own this parcel and the parcel on the hill behind this residence.

The Applicant wanted to remodel this house, but it is not structurally feasible since past remodeling has been attempted. To remove the existing structure, the house must meet the required height measurements. The Applicant would also like to build a garage without using any more green space on the property. There is an existing drive that would access the underground garage.

Mr. Nuttle suggested that it may be rather tight to enter and exit the proposed garage. Ms. Lyons stated the garage will be set back for ingress and egress.

Mr. Nelson, Applicant stated he will review the plans with his neighbor. He also presented a petition of support (see attached) from his neighbors.

Mr. Harsch stated that the part of the ordinance that the Applicant cannot comply with is Section 5.7(7) of the definition section of the zoning ordinance which states: ..."Intrusion below finished grade about the building for stair or window wells, court or yards, designed in basements or cellars, to accommodate the minimum glazing area requirements of the BOCA/National Building Code shall not be considered when calculating building height."

The glazing area mentioned applies to the occupancy of that area for human use and not for garage space. Upon review, Staff determined that this a "use variance" and not a "dimensional variance".

Mr. Harsch explained that this is nonconforming due to the access right-of-way to the rear house. The 25' width is not necessary since the requirements of the ordinance state the easement must be 18'. This would allow for the Applicant to build a house on this parcel and meet the setback requirements of the ordinance.

Mr. Harsch reviewed, with the Board, the following suggested findings:

SITUATION FINDINGS OF FACT (staff draft)

1.

The Board finds that the property at 217 Park Avenue is currently zoned R-2, Single Family Residence and is owned by Stan & Jane Nelson.

2.

The Board finds that Exhibits C & G show that this is a nonconforming lot with the dimensions of 54.04'' x 140.04', or

7,567.76 sq.ft.

3. The Board finds that the property contains steep topography, as shown in Exhibits D & E and F.

4. The Board finds that there is no garage on this property.

5. The Board finds that Section 5.7(7 ) HEIGHT OF BUILDING, as cited above, allows ..."Intrusion below finished grade about the building for stair or window wells, courts or yards, designed in basements or cellars, to accommodate the minimum glazing area

requirements of the BOCA/National Building Code shall not be considered when calculating building height."

6.

The Board finds that the Applicant desires a use variance from the above cited section of the ordinance to allow for the construction of a two car garage space intrusion below grade.

SECTION 5.256(4) FINDINGS OF FACT (staff report)

The Board makes the following findings of fact as required by Section 5.256(4) of the zoning ordinance for each of the following standards listed in that section:

(4) VARIANCE GENERAL STANDARDS

(a)

The need for the requested variance is due to unique circumstances or physical conditions of the property involved, such as narrowness, shallowness, shape, water, or topography and is not due to the applicant's personal or economic situation.

1. The Board finds that the requested variance is due to the physical conditions of the property which involves steep topography at the rear of the lot. (Exhibit D, E and F)

2. Therefore, the Board finds that this standard is met.

(b)

The need for the requested variance is not the result of action taken by the property owner or previous property owners that was in violation of zoning regulations in effect at the time the action was taken (self-created).

1. The Board finds that the steep topography of the lot

has existed before the current ordinance. There is

no record that the establishment of this parcel was

in violation of the zoning ordinance, at that time.

2. The Board finds that this standard is met.

(c)

The requested variance is the minimum variance necessary to grant substantial relief to the applicant while at the same time minimizing any adverse impacts to other property owners in the general neighborhood or zoning district.

1.

The Board finds that other intrusions such as for living space, would be allowed by Section 5.7(7)the ordinance and therefore, a garage intrusion would have no more impact than other allowable intrusions by the ordinance.

2. The Board finds that the impact to adjacent neighbors would be reduced since the Applicant's vehicles would be stored inside and out of site.

3. The only other feasible option for a garage would

require the addition of a driveway on the western side of the house, which with an above ground garage would consume most of the rear yard

SECTION 5.256(5)(b) (staff draft)

The Board makes the following findings of fact as required by Section 5.256(5)(b) of the zoning ordinance for each of the following standards listed in that section:

(5)

SPECIAL FINDINGS

(b) Use Variances. To obtain a variance from the use regulations

of this Ordinance, the applicant must establish both of the following:

1. The building, structure, or land cannot be reasonably used for any of the uses permitted by right or by special use permit in the zoning district in which it is located.

2. The proposed use will not alter the essential character

of the neighborhood.

The Board finds that by placing the two car garage below grade, the essential character of this neighborhood will not be altered.

Mr. Harsch pointed out that while there is space on the west side of the property, it would be a more intrusive location than the existing proposal.

Mr. Nelson presented a letter from Howard & Lili Sandler of 213 Park Avenue which is in support of this proposal. (See attached)

The Board agreed with the above suggested findings.

Motion by Horton






Supported by Cross

to grant a variance for Case #03-22ZBA to Section 5.7(7) of the definition section of the zoning ordinance to allow for the construction of a below ground garage. This variance is granted on the basis that all the standards of the ordinance have been met.

Ayes: Cross, Horton, Anderson and Nuttle

Nays: None

Motion Carried

H)OLD BUSINESS

The Decision and Order for Case #03-11ZBA - Gaffney - 104 Auld was approved as presented.

I)OTHER COMMUNICATIONS

1. Interpretation of Section 5.96 of the Zoning Ordinance

Action Chairman Nuttle explained that City Council has requested that the Zoning Board of Appeals interpret Section 5.96 of the zoning ordinance. This section states: "Uses developed in the CBD having their front entrance on Bridge Street shall be used strictly for retail purposes. This shall apply to first floor use only and does not extend to second floor uses or to other uses sharing the same building."

Mr. Turner, Attorney for Zager & Rutter, stated that the proposed building contains a first floor retail space, with an entrance off of Bridge Street. There are also second and third floor apartment entrances from Bridge Park Drive. He pointed out that the entrance in question is also allows access to the second and third floor apartments.

The reason for this section of the ordinance was to maintain a retail character along Bridge Street.

He pointed out that there are other recessed entrances off of Bridge Street. This entrance will be in the proposed location since it will be used for the second and third floor apartments.

This entrance will not detract from the retail uses along Bridge Street. There is nothing about this plan that would detract from the intent of the Ordinance.

Mr. Nuttle stated this plan appears to be a vestibule entrance for the second and third floors of the building.

Mrs. Cross asked the square footage of the retail space. The total square footage would be approximately 964 sq. ft. The current retail space is a little less.

Jim Malowitz, Performance Engineers, reviewed the site plan with the Board. He stated that Chief Ivan, Fire Chief stated that it would be better to have the Bridge Street entrance for the first floor apartment. This would allow egress during a fire. The door would be recessed about eight 8' from the edge of the building.

Mr. Anderson pointed out that the proposed doorway will be at its present location regardless of whether it serves the first floor apartment, or not.

Mr. Harsch explained that City Council asked the ZBA to interpret the following: If the language in the ordinance would prohibit the Bridge Street residential use from having an access and would that access be construed to be on or off Bridge Street.

Mr. Anderson stated the entrance to the first floor apartment is off the hallway and not Bridge Street. The ordinance is not clear where the door should be. This door will still be there to serve the second and third floor apartments.

Mr. Nuttle pointed out that the subject of Section 5.96 is "uses", not entrances. This vestibule entrance allows for access to the second and third floor apartments. The question is whether a doorway in the vestibule can serve the first floor apartment use. Mr. Nuttle stated the City wanted Bridge Street to maintain a retail character while still allowing other uses on the second and third floors.

Motion by Anderson

Supported by Horton

The first floor entrance door is permissible under "other uses shared in the same building", as referenced in Section 5.96 of the Zoning Ordinance.

Ayes: Cross, Anderson, Nuttle and Horton

Nays: None

Motion Carried

J)NEW BUSINESS

None

K)PUBLIC INPUT, NOT RELATED TO OTHER AGENDA ITEMS

Mrs. Manore explained that Mr. Jeakle applied for a zoning permit to build a porch on the side of his house that will be less than the required distance of ten (10') feet. There are three detached accessory buildings on the parcel. The permit has not been issued. There is a regulation in the ordinance that requires ten (10') feet between structures, which the Applicant cannot meet. Section 5.176(1) of the Ordinance allows for accessory structures to be connected to the principal building by a roofed porch, patio, breezeway or similar structure.

The issued is that Mr. Jeakle has built a walkway that is not a patio or allowable connection. The Staff packet includes the definition of "patio" and "sidewalk".

The Board agreed that if the walkway was expanded, it could qualify as a patio.

Mr. Jeakle stated he removed the porch and has to rebuid it. Mr. Anderson stated it is one thing to remove a grandfathered porch, but it is another thing to replace it with a larger structure.

Mr. Jeakle presented photographs of the walkway and explained that Staff stated the structures could be connected with brick pavers. The Board reviewed the photographs.

Staff pointed out that the dimensions submitted with the application constituted a walkway and not a patio. It was determined that the permit application did not include the necessary measurements to determine if the area of the brick pavers qualified as a "patio".

Based on the new photographs, the Board determined that the pavers would qualify as a "patio" connector.

L)ADJOURNMENT

The meeting was adjourned at 8:00 P.M.