City of Englewood, Colorado Board of Adjustment and Appeals, 14 Oct 2021

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From YouTube: Board of Adjustment and Appeals Meeting October 14, 2021

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Agenda HTML: https://englewoodgov.civicweb.net/filepro/documents/124196?handle=03FEC054F2AE46BDB0C246439C2AA523
Agenda PDF: https://englewoodgov.civicweb.net/filepro/documents/124195?handle=45D8D15B219E4FCDAFE8FE0D6F5681B8

1. Chair Finn approved the agenda

2. Call to Order

3. Approval of Minutes

4. Approval of Findings of Fact

5. Public Hearing:

Case VAR2021-011 Applicant: Brenda Hubka Property: 3639 S. Fox St. Request: A variance for an accessory dwelling unit to be located outside of the rear thirty-five percent (35%) lot placement requirem...

Due to COVID-19, the public hearing will be held virtually. Anyone interested in speaking in favor or against the variance, please call 303.762.2342 or email commdev@englewoodco.gov 24 hours prior to ...

7. Staff's Choice

8. Attorney's Choice

9. Board Member's Choice

10. Adjourn

Agenda HTML: https://englewoodgov.civicweb.net/filepro/documents/124196?handle=03FEC054F2AE46BDB0C246439C2AA523
Agenda PDF: https://englewoodgov.civicweb.net/filepro/documents/124195?handle=45D8D15B219E4FCDAFE8FE0D6F5681B8

A

B

And information on the.

A

Project but engaged.

C

C

Andy, do you want to talk to me for a minute and let me adjust my volume on my speakers.

D

I can help out with that yeah.

C

Cool yeah: how are you tonight.

D

I'm doing all right, that's the easiest thing anyone's asked of me all day.

C

We need to have more people talking to you, mr fan, good, to see you.

E

Hey guys hi randy, I made it. You.

C

Did I like that, I haven't run a meeting in two years.

E

I uh I need to send you uh anyway, the new new thing, the.

C

I think that would be great just in case yeah.

E

C

Doing my time memory here so.

E

I'm trying to operate under the when I get hit by a bus theory from now on, so uh nothing will miss a beat.

C

Yeah, if you could just email that to me that'd, be really cool yep.

E

I will do that: hi kristin, hi, kristin.

D

Hi, gentlemen, how are you.

C

Doing well yourself.

D

Yeah hanging in there I agree with andy that that that would have been a a great task for the easiest one of the day. So I'm disappointed I didn't get that.

E

um One two three, four five.

E

um So I think uh shelley are we still waiting on someone.

D

I've got tanya over here, but she's. Oh here she is.

E

All right, there's tonya.

E

So that so we have uh six members present.

E

Is that what we're expecting, since the slacker tom finn showed up.

D

E

So since we have six present and we're at 701, I will call the board of adjustments and appeals meeting to order miss work. If you could, please take the role.

D

Mr rieger miss schmitz.

D

Mr friesen president, mr thompson, president, mr taylor, president, miss hoffman president, miss spencer.

D

Present chair finn.

E

And I am also here.

D

It looks like we've angela as well all right well hold on just a moment. Here. We've got.

D

Looks like we've, angela and aaron as well.

E

D

And we have more than a quorum.

E

Nice, I believe we have eight members present.

E

um Okay, I'm here hi angela hi.

D

A little trouble with the link from the email- I don't know why.

E

No worries um so if we have eight presents um how many votes are required, we.

D

Only need seven for a quorum.

E

D

So? If because miss spencer is an alternate.

E

Oh okay, so miss spencer will be an alternate tonight. Yes, okay, thank you for that clarification.

E

It is very rare that we actually have an alternate. um Usually we have all the members uh participating okay, um so uh approval of minutes.

C

Tom, do you need to have the rest of the roll call, then.

E

Yep yep: let's go ahead and um miss work. uh If we can just notes that ms schmitz, mr.

D

Rieger yep.

E

And mr rieger joined commission.

D

Emma schmitz, I'm here, okay.

E

All right, it's perfect, um so we will uh approval of minutes from august 11th uh 2021 the draft minutes.

E

um I need a motion and a second.

E

All right, uh we will just do a voice vote, uh all in favor, say aye all right, any opposed, no one opposed um and then a approval of finding of uh the findings of fact from case var 2021-009, which was 2400 west union avenue.

E

Again, I need a motion and a second.

C

I'll move again.

E

And a second I'll.

D

Second, that one.

E

Thank you um all right, uh vos voice vote again, um all in favor say aye uh any any opposed, no opposed, um perfect.

E

So uh there are seven members present. Therefore, five affirmative votes are required to grant a variance or appeal. The board is authorized to grant or deny variance by part 3 section 60 of the englewood city charter. Anyone agree by a decision rendered by this board may appeal that decision to a court of record. However, such appeal must be made within 30 days of the board's decision.

E

Any approved variance is effective at the end of the appeal period. Building permits for construction associated with an approved variance will not be issued until the appeal period is ended. Building permits must be obtained and construction begun within 180 days of the variance's effective date procedure. For the meeting is that the case will be introduced. An overview will give be given by staff. Applicant will present their case and request and state their reasons. Variants should be granted.

E

Proponents will be given an opportunity to speak. Opponents will address the board of present and, if needed, staff will again address the board. The public hearing for case var 2021-011.

E

Brenda hubka the property is at 3639 south fox street. The request is for a variance for an accessory dwelling unit to be located outside of the rear. 35 percent lot placement requirement for accessory dwelling structures in the mur 3 b zone district.

E

That case is now open.

E

I have the verification of publication and posting for the subject property that everyone should have received, that via email staff, if you could give us an overview.

B

D

Do you swear or affirm under the penalties of perjury, that you will tell the truth in this proceeding before the board of adjustment and appeals.

B

D

Please state your name.

B

Eric sampson planner, two with city of england, community development department, so I'm going to try to share my screen here.

B

B

Can everybody see this okay.

D

B

All right, thank you, okay, so uh this is for variance case 2021-011 um and the up can sprenda hudka and the address is 3639 south fox street, um and so the request is a variance for an accessory dwelling unit or adu to be located outside of the rear. 35 percent of the lot placement requirement for the rear property in the mu 3 b zone district.

B

The structure will be located in the rear, 42 percent of the property 8.4 feet. So here's a overview of the subject: property and the structure that has kind of light green circle around. It is the structure in question, so miss hubka had begun the accessory dwelling unit process with a with a development review team meeting, and it was during that meeting. We noticed that the existing garage structure was located outside of the rear, 35 percent lot, which is a requirement in the adu code.

B

B

Staff referred the variance application to building engineering, fire parks and rec and utilities, and all departments aside from building, make it a recommendation of conditional approval. The building division stated that the concrete slab that the garage is situated on will need to be brought up to current residential code prior to the adu being approved for conversion.

B

So for the analysis.

B

Okay, so here's some pictures of the existing structure and so for the first criteria that the board looks at is uh that unique physical conditions exist such as such size, shape, location, topography or surroundings which are peculiar to the land or structure involved, so for any new adu construction. The code regulations require that the structure again located on the rear, thirty five percent of the property.

B

So the average angle wood lot is 50 by 50 feet by 125 feet and so that rear 35 would uh calculate into uh 43.75 feet um of the rear of the property. So the existing structure of this structure is largely in that 35 requirement percentage wise. The converted garage was extended outside the 35 requirement by 6.7 percent or 8.4 feet, since the structure to be utilized as an is already existing.

B

The code creates a unique challenge here to the property owner and complying with the safety regulation without a complete demolition and relocation and reconstruction of the structure.

B

uh Another unique characteristic about this is the mur-3b zone district uh in which the parsons located the zone allows for multi-family development with more relaxed development standards compared to other inglewood residential zone districts. These mu r3b zoning allows for the development of two units on the parcel, with relatively few placement restrictions aside from zoning setbacks.

B

So technically, ms hubka could remodel the garage into a second living unit and be in compliance with the zoning code, while keeping the structure in its original location.

B

However, since this structure is being defined as an adu, that 35 requirement is applied per code, the second criteria here this is kind of us- you can kind of see the proposed site plan for the adu.

B

The second criterion is that the variance is consistent with the intent of the zone district regulations to secure public health safety and welfare, so the intent of the 35 rear lot requirement is to guide new adu development in a manner consistent with many other communities that have implemented adu regulations.

B

In addition, the intent of the 35 rear lot requirement was to ensure that any new adu structures would be constructed behind the primary residence and also be a subordinate structure to the primary residence.

B

The conversion of the garage into an adu would still meet the intent of the regulation as a major as again, the majority of the structure would be located in that 35, 30 or 35 percent of the lot, uh and then staff found that there would be no adverse impacts to the intent of the zone district, nor to the health, safety and welfare of the community if the variance would be approved.

B

The third criteria is that the variance will not currently impair the use or development of adjacent conforming properties or alter the essential character of the neighborhood and again, staff found that granting this variance would not impair the use of the json properties, nor adversely impact adjacent properties.

B

Finally, the fourth criterion is that the variance is not a self-imposed difficulty or hardship, and so the various requests we're not considering this to be a self-imposed hardship, as the applicant is proposing to create an adu in a zone district which grants it as a use by right.

B

The location of the garage is not something that was originally uh established or determined by ms hopka. In addition, the cost to the property owner of removing the existing garage and foundation slab to relocate the structure 8.4 feet closer to the rear property line could be considered an undue hardship for a structure that meets all the intents and purposes of the adu code requirements.

B

So, considering all these items, the community development department recommends that the variance request be approved.

E

Thank you, uh questions for staff.

E

And I'll I'll I'll start off. um So why are we here? Because it seems to me like she doesn't need a variance um for the reason you stated of the zoning. So I'm curious why, when this wasn't caught earlier, we went down the path of the variance and we just didn't uh go the other path.

B

Oh so, since it's since it's considered an adu technically and not a secondary residential structure, then that then that 35 adu requirement kicks in, and so since this is an add, we take a look at that regulation in the in that situation.

C

I guess the question that would echo tom is that: why isn't it just considered a second residence? What precludes it from being that.

B

um So a second residence would be would have a little bit more leniency in the size allowed um adu requirements only. uh They basically restrict the maximum size.

D

B

Square feet and among other different requirements for adus, so it's technically an adu and not a second living residence because it's going to need to comply with those other 80 requirements.

C

But if she did a separate unit, it wouldn't have to be a large unit. Right I mean, could it just be called a second unit and build it.

B

Yeah, that's correct, um for our intents and purposes, um on the planning side we just like to if it's an adu, we like to refer to it as an adu, just to avoid confusion.

D

So, procedurally, if if the adu application was withdrawn- and um she just got building permits for a second dwelling, is there any obstacle to that.

B

No, you just have to go through the development review process.

C

Would you not have to go through the development review process with an adu? Is that the point.

B

No, you still have to go through the development process for you for either.

E

Okay, so I'm explain this to me, like I'm, not the smartest tool in the turnip truck. um There is no difference virtually for in this case that this structure is either an adu or a second residence there's. No, she doesn't have to comply with any regulations differently, other than that the 35 percent and the size, but there's nothing extra that she would have to do for a second residence that she.

B

There was so the adu would actually that requires a primary residency requirement as well that she would need to be a primary resident on the property while she's either renting the edu or while someone else is living in the structure. Okay, so the second residence.

E

Would not right? Okay,.

D

So I'm thinking, maybe we hear from the applicant about what, if there's a reason for going down the adu path. um I don't know.

E

Yep now I think that yeah she can answer some of this. I think I just wanted to get a clarification if there was any huge difference from these cities. The staff's point of view.

D

Right, I mean: are there different? Would a second dwelling require more parking or anything like that?.

B

uh No, not necessarily it's just largely that the the adu kind of fits into its own little box of regulations here, okay,.

E

Okay, any other questions for staff.

D

Yeah I was, I was a little confused by the building department's comment, what's involved in bringing a slab up to code, and is that going to involve demolition anyway,.

B

um I will refer to the applicant to that question because I know she knows a little bit more about that.

E

A

E

uh No, no not yet hold on um any other questions for uh staff.

E

All right so uh another questions for staff. At this time, however, we might uh recall you if the applicant could come forward to testify in the case and miss hubback. If you could, please state your name and address to the secretary, who will administer the oath and swear you in.

A

South fox street inglewood, colorado, 80110.

D

Do you swear or affirm another penalties of perjury that you will tell the truth in this proceeding before the vote of adjustment and appeals.

A

D

E

Welcome miss hubka um hi, so we we got a couple of questions um and if you want to address- uh and we got everything that you submitted with your packet, um so we got that delivered to us. So um we understand uh all the arguments and uh the issues that you pointed out in uh everything you submitted to the city.

E

um I was just curious, uh so we had mr taylor who asked so if you could speak to uh you're, welcome to speak to anything, but if you could also speak to specifically to uh the slab improvements and what would be required for that.

A

Yes, the slab. Now this is the garage that was built way after the house was built in about nine in the mid-1990s.

A

We have looked at the footing and the footing does meet uh energy efficiency is that the footings are 36 inches deep.

A

We have not looked at the inner side, uh inner slab, but we do have plans to excavate and make that energy efficient, also growing at least 24 inches according to code, but at least the surround is 36 inches and we already have um an entrance into the sewer. It's as if the person, the homeowners that built this garage kind of planned for this to be a second residence.

A

I didn't know that that was an option being a second residence and I'll. Tell you how this came to fruition uh or what came to my mind, is my dad moved in during his last year of life here, and I took care of him in this two-bedroom house, and then I worked. I made an office in that garage and I froze my butt off.

A

Oh, oh really, the thought was uh just to make that a room and then well, if we're gonna make a room, make it uh convert the whole garage and if we're going to convert the whole garage and my uncle can't use it right now for anybody else, then let's go ahead and rent it out in order to run it out. I would need to make this an adu, so I'm asking um to allow the variance to make this an adu today.

E

um But you could also rent it out if it's just a second residence.

A

I I I would hope so I I'm not yeah. Well, I'm a little confused. I thought there had to be an adu, so um I I hope that you know.

D

A

Because of all the remodeling- and I mean all the teardowns and scripts- that's happening around me that I can use this as a vacation realm, um apparently there's more of a return on your investment that way and that doesn't have to be permanent, it's easier to turn a vacation rental into a permanent rental. If you decide oh, that's too much or there's too many complaints, the neighbors don't like it, um you can make it a permanent rental, but either way I really thought that you had to have an adu application before the city.

E

Okay, um uh any questions.

C

Yeah, I think, go back to staff on that same question, because the way I understand the code there's no real difference in this zoning that wouldn't allow you to do that as a second unit. You can still rent it out, but theoretically I guess you could even sell it off at some point in the future. What you can't do as an adu.

E

Right and- and I the other point I think that's a valid point is if, in the future, she doesn't have to live in the house and she could rent out both both properties, both both units on that property, where, with an adu, she has to live in the primary house. Yes,.

C

Well, you have to live in one of the units. I can live an easy one.

D

A

E

E

Well and I'll and I'll ask you point blank: um would that seem like the path that you would rather go down, because it opens up additional options to you.

A

Yes, um but how would the city feel if I made this a vacation rental as a second residential unit? Would I get in trouble.

E

We can, we can go back to staff and ask that.

B

Yeah, so short-term rentals are actually not allowed in adu structures. um What you could do is live in in the adu and then rent out the primary residence as a short-term rental, um but yeah. If with an 80, you would only be allowed long-term, rentals or 30.

E

B

E

Yep, so real quick, so I don't want to get out of order here, but um we just jumped back to staff, but is that acceptable shelley that we we we jump back to staff at this point and talk to staff, and then we jump back to uh miss hubka yeah.

D

E

Fine, okay, so, uh mr sampson, so uh if it's an adu, it cannot be a short-term rental, a vacation rental.

D

E

But if it's a second residence can it be a vacation rental.

B

No, um that would need again there's like a primary residency requirement for the short-term rentals and that primary residency requirement basically limits this structure to the primary residence. If.

E

That makes sense that does not make sense.

B

Okay, so uh just similar to the renting your adu out as a short-term rental, it's not allowed by code, okay, same situation in the short-term riddles, since you have a primary residence and you happen to have two uh houses on your lot.

B

The the house, that is your primary residence is the only one that's eligible to be a short-term rental right, so renters. If you're, renting a property in englewood, you are not allowed to uh rent it out as a short-term rental, you need to be the primary president of the structure.

E

Okay, so both uh that that would be both for the adu and the second um house that would be on this lot. That is um that she can do because of the zone yep. Okay. uh So while we're at staff, does the board have any other questions for staff? At this point.

E

All right, so we will uh staff we're done with you again for the moment and we will jump back to miss hupka.

E

So we got a little bit clarification for short-term rentals.

E

Do either so I so here I I I can tell you, I think and and the board can um chime in that I think part of our issue might be when we discuss this is that if we open pandora's box for an adu, we might get a lot more people talking, because once suddenly we give someone eight feet, someone will say: I want 10 feet, someone want 12 feet. Your case is a little bit different in the fact that you don't have to go the adu route at all.

E

So in essence, we could deny your variance and you could still get what you're asking for, which is, I think, using this second unit as a second residential unit on the property.

E

Is that so virtually are we getting to to?

E

Are you going to use it for anything specific that you would want to have this purely as an adu.

A

I don't understand the difference I mean when I looked up in code. I thought that just building a second residential unit was an adu. I didn't think there was two things.

E

A

Now I'm really confused right. Why didn't? I just do this to begin with right. Do we skip the planning committee and we go straight to just building permits is. Is that what we do.

E

I I think you would still have to go. I I think all the steps from a uh standpoint of of getting each one approved would be exactly the same. It's just you wouldn't have had to go through a variance hearing.

A

For heaven's sakes, I'm.

E

Sorry to break I'm sorry to be the one to break that news to you.

A

Yeah, no, that's it's it's a little bit silly. um Is there a different fruit? I guess I guess I want to know um yeah. What are my next steps? If you deny this variance, am I going to end up in this same meeting uh for a second residential unit.

E

A

You won't, you won't.

E

You won't, you won't end up in a meeting with us again um so.

A

Not that I don't love meeting you.

E

We appreciate that.

A

I would have liked to started this project a month ago. You know and not buy 60 signs and put all this out there if it wasn't necessary.

A

I really assume that this central unit, second second residential unit, is the same as an adu. So maybe um you all can help me um or eric. uh Send me this. Yes, yeah.

D

A

D

Something that, instead of miss hopkins, having to make the choice on the spot of whether to go through our vote um right. You know right now that we could potentially continue this and if there's an alternative, that's good alternatives. You can, you know, say we don't need to do that continued meeting.

D

What do y'all? Think of that? I think I.

E

Would have a great.

D

Idea, I was thinking the exact same thing.

E

D

Would agree with ms schmitz there's no doubt yeah it's going to save.

C

Us, I think my my only comment on that would be. Is it has the potential of setting this up back another month.

E

If, if there is not a path forward right with a second residential unit,.

C

I mean we're kind of into our conversations here again may we need to get back to yeah yeah.

E

So, let's uh so does anyone else have uh because we can. We can address this in discussion. uh Anyone else have uh questions for miss hepka. At this point.

E

All right, um I'd.

C

Like to go back to staff.

E

Yep, ms hopkin, I think we're through with you for the time being uh we're gonna go back to staff. Mr sampson.

A

All right, thank you very much for your time. Everyone.

E

Thank you randy. You want to go ahead with.

C

E

C

Yeah eric, so are we missing something here on the.

B

C

D

Not that I'm aware.

B

Of um I was, I was basically or you know. Staff was basically under the impression that it was an adu is an adu and that's what it is. um You know when we were looking at the mur, 3b zoning, we're doing the staff report and we realized. Well, you know she could do a second residence. I mean there's limitations, either way on what you could do.

B

For example, if you do a second residence, you wouldn't be able to subdivide the property and sell off that second residence, and it also does open the door for let's say if.

B

If ms hubka were to sell off the property say in five years, then somebody could come in and run out both uh structures. As you know, long-term rentals and so from staff's perspective and considering the surrounding neighborhood.

B

We kind of looked at this property as more of an r1c zone district, which is it's not, but it's more of a fit to the neighborhood than mixed use. Residential.

D

So I have another question: that's that's for you eric um would. Would she be able to is the only advantage of doing this as an adu is that she could still convert the primary structure into a duplex at some point or take that down and build a duplex and still have a a third unit? Essentially on that lot, no.

B

So if you have a duplex on a property, then you're kind of prohibited from from building an adu. In addition to.

C

But if it's a second unit I mean, can you have three units on that property? I guess is, is andy's question.

B

uh No because you would actually need to meet the square footage requirement per unit, and I do believe that's three thousand square feet per unit uh and the property is uh 62.50.

B

So two would be the max number of units you would be able to get on the property, and unless the duplexes were built side by side, you would not be able to subdivide and sell them off, because you need like 25 foot of frontage for each unit.

E

So is there any downside to instead of calling this an adu to go the route of a second residential unit.

B

I just I only think the I you know it depends on your take on it as well, but it's you know opens the door to having two rentals on one property in the future.

E

B

E

But that's the choice: the land owner.

D

That's correct on their own.

E

Right all right, um any other questions for staff. At this point.

E

Okay, um are there any shelley? Do we have any uh people, any other people uh who was to speak in favor of this request or an opposition.

D

E

Okay, um all right any other questions for staff before we close all right. The public hearing is now closed. Do I have a motion and a second for a board discussion.

D

I move that we continue a vote on this matter until uh our next meeting uh to allow the applicant to explore alternative approval paths.

D

E

All right, we have a motion in a second. I think that sounds like an awesome idea. um I think y'all are uh once again. You show how smart you are, which is fantastic. um Anyone have any um randy. I understand like uh kind of you're you're angst about some of this, but I think that um miss hopkins has a a choice before her that.

C

Yeah, I think I think this is a good good option, because I think she can go through and try to get that whole process started if it really doesn't work for some reason right from staffing point of view, then she can come back and get with the variants from us ask for it shouldn't be a long meeting. At that point, perfect.

E

um Any other discussion, or should we just vote.

E

All right uh miss work. If uh you could um uh we're gonna vote.

D

Mr rieger, I vote yes, miss schmitz, hello, yes, mr freezing.

C

D

Mr thompson, I vote yes, mr taylor, I vote yes, miss hoffman, yes, turf in yes, motion passes.

E

All right so oh go ahead.

D

No to move the meeting or to post owner.

E

The vote yep so okay, awesome, perfect. I like this. I think we we made a lot of progress in a very.

D

Can we do this with all of our cases.

E

um This is, this: is great um uh staff? um Do you have anything else other than us just adding work more work to your plate? No.

B

No, I don't have anything.

D

Else perfect, I was going to say I think all we did was continue it on the zoning's plate. Yeah.

E

B

We'll we'll sit down with with brenda and the building department and everybody we need to talk to and see if there's any obstacles for making it a second residence as opposed to an adu. So.

E

Perfect yeah and I I think uh then she can have all the information and um we can. She.

A

E

Awesome um all right, uh dugan uh missed all the fun tonight, so I'm assuming that uh he had uh nothing for us.

D

um We will have a different person representing the city attorney's office. Dugan is no longer with the city.

E

Hopefully it was his choice and he retired and he's living a happy life um all right, so we'll have a new attorney joining us um board's choice um at some point, we'll actually see each other again and uh perhaps um cheers so um I think that's it for tonight.

E

um We'll uh we'll see you guys, um perhaps next month with uh miss, hepka or or maybe not perfect. Thanks guys. Thank.

D