November 20, 2002
City Hall - 1st Floor

7:00 P.M.

A) CALL TO ORDER

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

B) ROLL CALL

Members Present: Withrow, Cross, Horton and Nuttle
Members Excused: Witthoeft, and Ostling
Staff Present: Harsch and Manore

C) DESIGNATION OF ALTERNATES

Mr. Horton was designated as the alternate member.

D) APPROVAL OF MINUTES

The Minutes of October 16, 2002 were approved as presented.

E) APPROVAL OF AGENDA

The Agenda was amended to add items to: I) Other Business

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

None

G) PUBLIC HEARINGS

Chairman Withrow announced that Mr. Gene Ostling passed away on November 19, 2002. He called for a moment of silence to remember Gene and his service to the Board. Mr. Withrow commended Mr. Ostling on his insight and input to this Board.
G) PUBLIC HEARING

ITEM #1 Case # 02-24ZBA - Mailloux - 510 Division

Chairman Withrow introduced the case. The applicant stated that the reason he wants to build this garage is the need for storage due to a minimal amount of closet space in the house. He would use this garage for storage only. He stated that they have four children who have a lot of stuff to store.

He pointed out that this will be a garage only and not living space. He needs storage for his large boat. He pointed out that even with the second story, he would meet the 16' height requirement.

The Board reviewed Section 5. 32(8) of the ordinance: 5.32 (8) - "One (1) detached accessory building not more than sixteen (16) feet or one (1) story in height. A detached accessory building shall not be less than ten (10) feet from the principal building and shall not be closer to the side lot lines than the distance allowed for the principal building or the existing building line. An accessory building shall not be allowed in the front yard. The detached accessory building shall be not closer than six (6) feet to the rear lot line."

Mr. Nuttle discussed the height with the applicant. Staff stated the height measurement is determined by the measurement from the lowest finished grade to the mid-point of the roof.

Mr. Mailloux stated there is 22' to the peak of the proposed roof. When he measures to the mid-point of the roof, it is less than 16'.

Mr. Harsch stated that he would still need a variance for the proposed second story.

Chairman Withrow questioned Staff's interpretation of Section 5.32(8). He pointed out that the first sentence contains the word "or" and not the word "and", which means that one or the other requirement applies, but not both. He pointed out that Staff is applying both requirements.

Mr. Nuttle asked if the Applicant has any elevations. Mr. Mailloux stated the store will not supply elevations until he pays for the material.

The Board and the Applicant discussed the method of measuring height. Staff pointed out that the garage will be set on three rows of concrete blocks.

Mr. Nuttle and Mrs. Cross agreed that the Applicant needs to submit accurate elevations of the garage.

Mr. Withrow stated that if the Applicant can meet the 16' measurement to the mid-point of the roof, he does not need a variance. Mr. Harsch stated that depends on how the Board reads Section 5.32(8) of the ordinance.

June Cross stated that when the Planning Commission addressed this section of the ordinance, the understanding was that it was to be one story which was not to exceed 16' in height.

Mr. Harsch stated that the height refers to both one story and 16'. Historically, this is how Staff has interpreted this section of the ordinance. This is why Staff has continued to bring these types of cases to the Board.

Mr. Nuttle stated the problem is the word "or". Mr. Withrow stated the problem is the configuration of the proposed garage. Normally, a two story building would have a higher roof. Mr. Harsch stated he does not disagree on the height. Staff has always concluded that having more than one story is unacceptable.

Chairman Withrow asked if the Applicant really has a second story. Mr. Harsch stated that by definition, he would have another story. Chairman Withrow suggested a legal interpretation from the City attorney would be appropriate. He pointed out that there is one letter of opposition to this request.

Mr. Withrow stated that if the Applicant does not need a variance, all he needs to get is a zoning and building permit.

Motion by Nuttle Supported by Horton

That if the legal opinion determines the Applicant does not need a variance, the City will refund the Applicant's money.

Ayes: Nuttle, Withrow, Cross and Horton
Nays: None
Motion Carried

Motion by Cross Supported by Horton

to table Case #02-24ZBA to December 18, 2002 to allow the City Attorney time to present a legal opinion as to whether Section 5.32(8) of the ordinance requires both a height of 16' and one story.

Ayes: Withrow, Cross, Horton and Nuttle
Nays: None
Motion Carried

Mr. Nuttle stated that it is obvious that this structure is a two story structure, even with the mansard roof.

The Board stated that if the Applicant needs to come back to the Board, elevations should be submitted. Mr. Withrow stated since the Board has received a letter of opposition from a neighbor, approval of this request would be difficult, but not impossible Mr. Withrow stated that based on the evidence presented, he would not be highly encouraged. Mrs. Cross pointed out that there does not appear to be a hardship. Storing the boat in the garage is not a hardship.

Mr. Nuttle pointed out that this interpretation is monumental and would have far reaching impacts. The Board requested that Section 5.32(8) be brought before the Planning Commission based on the interpretation by the City Attorney. The Board requested that the legal interpretation be forthcoming within one weeks time.

H) OLD BUSINESS

The following Decisions & Orders were approved by voice vote.

1. Decision & Order for Case #02-20ZBA - Terrill

2. Decision & Order for Case #02-21ZBA - Sutherland

3. Decision & Order for Case #02-22ZBA - Irwin/Duffy

I) OTHER COMMUNICATIONS

None

J) NEW BUSINESS

Mr. Harsch referred to the handouts supplied to the Board for Section 5.256(3-5) and (6-8). He explained these are the standards the Board applies when they make their determination to grant or deny a variance.

The matter of amending these standards came up as an issue due to the case at Park and Grant. That case went into litigation. The City Attorney reviewed these standards and felt they needed changing. The Board reviewed the memo from Mr. Graham dated November 7, 2002 which explains the reasons for this proposed change. He states that the changes would be closer to State law and easier to apply.

This document has gone to the Planning Commission and has been set for public hearing before the City Council on December 16, 2002. The Board reviewed the proposed changes. Mr. Harsch pointed out that the Board has not heard any cases relating to a "use variance". If Council approves these changes, it would become law 30 days after the 16th.

Mr. Harsch assured the Board that Staff will continue to supply a list of past variances. Chairman Withrow requested that Staff continue to include their belief in what the ordinance says. Mr. Nuttle stated Staff's format is wonderful.

Mr. Harsch addressed Section 5.12(7) YARD PROJECTIONS AND ENCROACHMENTS. Mr. Harsch stated this language will be removed from the definition section of the ordinance and be added to the regulatory section of the ordinance. This proposed language is scheduled to be presented to the Planning Commission. The following language would be added: "Eaves may project into a front, side or rear yard for a distance of 24 inches."

Mr. Nuttle asked if the eaves would still count as lot coverage. Mr. Harsch stated the eaves would not count when looking at setbacks only. If an overhang exceeds 24", it is subject to the required setbacks.

Mr. Harsch stated that the final language addresses a proposed amendment to the Board of Appeals By-Laws. When a use is granted a variance, this language directs Staff to attach notice to the land use permit that the Applicant has six months to start the project. The following language has been added: "...unless an extension has been appropriately granted." There has also been an approved amendment to the zoning ordinance outlining the number and method of getting extensions.

Motion by Withrow Supported by Nuttle

to amend the Zoning Board of Appeals By-Laws to read as follows:

Section 4.0 Conduct of Meetings, 4.7 Decision of the Board should

be modified to read:

(C) Written Notice of six months limitation: Each decision of the Zoning Board of Appeals permitting the erection or alteration of a building or other use of land shall include the NOTICE that the Land Use Permit and Building permit must be actually applied for, used, and construction or alteration actually started, unless an extension has been appropriately granted, within SIX MONTHS of the date the decision was dated. Any permits issued by the City shall be issued with such limitation stated clearly thereon.

Ayes: Cross, Horton, Nuttle and Withrow

Nays: None

Motion CARRIED

Mayor Campbell requested that he attend the special meeting on December 18, 2002.

K). PUBLIC INPUT, NOT RELATED TO OTHER AGENDA ITEMS

None

L). ADJOURNMENT

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