HomeMy WebLinkAboutWA-92-20The CJty of
~lheat ADMINISTRATIVE PROCESS APPLICATION
GD 1,! a Department of Planning and Development
1~ lLg 7500 West 29th Ave., Wheat Ridge, CO 80033
Phone (303) 237-6944
Applicant~
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Owner ~ G { ^ ~`~ ~ ~ ~~FC~aC ,~
' 11 Address ~{`~ `j~~~ ~k--C'~ Phon ~G ~ L~-(c~
Location of request
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Type of action requested (check one or more of the actions listed below
which pertain to your request.)
Change of zone or zone conditions
Site development plan approval
Special use permit
Conditional use permit
Temporary use/building permit
Minor subdivision
Subdivision
8 Preliminary
Final
** See attached procedural guide
for specific requirements.
Description of request
Variance/Waiver
Nonconforming use change
Flood plain special exception
Interpretation of code
Zone line modification
Public Improvement Exception
Street vacation
Miscellaneous plat
Solid waste landfill/
mineral extraction permit
^ Other
List all persons and companies who hold an interest in the described real
property, as owner, mortgagee, lessee, optionee, etc.
I certify that the information and exhibits herewith submitted are true and
correct to the best of my knowledge and that in fil-ing this application, I
am acting with the knowledge and consent of those persons listed above,
without whose consent the requested action cannot lawfully be accomplished.
Applicants other than owners must submit power-of-attorney from the owner
which approved of this action on his behalf.
Signature of Applicant--'~ ~ I10 Ste! =
Subscribed and sworn to me this ~ day of OGrQ, EOG 19 %2
Enr ;a~4v a. ~a r;y _-
ell CcT ri ~rn s, h `~t" !':'.Sea ~yf%
-__Y _ -, fY.r_.r 31,'.c95 ~t.e.~ ~"~ fT„~J72/
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CITY Or WHEAT RIDGE
7~GG W 25TH AVE., F', O. BOX 638
WFIEAT RIDIiE, COLORADO 8GG3tl.
DATE F'AID: OC:T 2S, 19'3:
P,ECEIVED FF,'OM: JOSEPH J. Sl-iEARN
., _,
I) i~R P ION: VARIANCES
AMOUNT CHECI:: ~SG.GG i:'NECF: NCI: 1~~26
CASH: ~G.GG
CHARGE: $G.GO
MONEY ORDER: ~G.GG
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AMOUNT RECEIVED: ~SG,GG
- OPR ID: AMW RECEIPT IVO: vi 166
- ---TT , - - --~
Tha Cfty o/
Wheat ADMINISTRATIVE PROCESS APPLICATION
Rid a Department of Planning and Development
g 7500 West 29th Ave., Wheat Ridge, CO 80033
Phone (303) 237-6944
Appiicant_ {' u ~,L Y,rJ ,,;~ r°rT Address / ,~0 7 w'. 7s~~D,~ Phone -
Owner _7.z 3 c ~.~ 3 ?_,fl n,.~ _ .Cf o~..~.,-.--~.
Location of request7,~3S Lam, _? ~~.,/ A.rcd S OF/-~n% GJ~ r ~
Type of action requested (check one or more of the actions listed below
which pertain to your request.)
^ Change of zone or zone conditions
Site development plan approval
Special use permit
Conditional use permit
Temporary use/building permit
Minor subdivision
Subdivision
8 Preliminary
Final
^ ** See attached procedural guide
for specific requirements.
o~ request
f
Variance/Waiver
Nonconforming use change
Flood plain special exception
Interpretation of code
Zone line modification
Pudic Improvement Exception
Street vacation
Miscellaneous plat
Solid waste landfill/
mineral extraction permit
^ Other
y ........_ ~.
List all persons and companies who old an interest in the described real
property, as owner, mortgagee, lessee, optionee, etc.
.cJ
ADDRESS
PHONE
I certify that the information and exhibits herewith submitted are true and
correct to the best of my knowledge and that in filing this application, I
am acting with the knowledge and consent of those persons listed above,
without whose consent the requested action cannot lawfully be accomplished.
Applicants other than owners must submit power-of-attorney from the owner
which approved of this action~n his behalf.
Signature rf Applicant
Subscxibed aryd'sworn
SEAL
My commission expires ~-d~_9S
Date Received Receipt No. Case No.
Icnprc~ment I.peation Certi[ ~icate
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W---- ~ E
CARLSON ENOINEERINO AND APPRAISAL CO. ~r.~
200 S. Sheridan Blvd.
Denver, Colo. 80228 g
Phone: 934-2148 - '
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Legal Description: Lot 45,
33RD AND UANCE SUBDIUISION,
County of Jefferson,
Stat• of Colorado
Docktar (Banco Mto Co) ,
t hereby certify that this improvement location certificate was prepared for
the improvement location being Weed on boundary evidend and that it is not to W plied upon for the establishment of fence,
building, or other futun improvement lines. I further artily that the improvements on the abgw tNseribd parcel on this ~_ day
of Ju1Y 1978 except utility conrnalons, are entirely within the boundarbs of the parcel, except as shown, that
there are no encroachments upon the tkscribed premises by improvements on any adjoining prembes, except as Indicated, and that
there is no evidence or sign of any easement crosting or burdening any part of veld parcel, except as noted.
,t,~• (,lfF, OWNER: Docktar (Banco Mtg. Co)
ADDRESS: 7235 West 33rd Ave.
i „ ~T~ . ~. & ..
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July 10, 1978 ~;
~AtE:
TITLE CO: Security Title Ins. Cc.
61811
CASE NO:
CERTIFICATE FEE: (40.00
41504
CERTIFICATE N0: -
r
r- .
DEED O F TRUST This form is used in connection
STATE OF COLORADO with deeds of trust insured under
the one- to [our-Iamily provisions
of the National Housing Act.
TEAS INDF.NTUP.E, made this 10TH day of 3 n t o[f o r Lord one
$~fETT b• ~ 1LSAgL. DOCRTER,
thousand nine hundred and ®eventy eight ,between a us an an 1 e,
RICAARD D. WEST S BVELTN L. WlST, Husband and Wife ,whose address is 7235 HEST 33RD AVENUE,
WHEATRIDGE, COLORADO 80033 ,County of JHFFARSON ,State of Colorado, hereinafter re-
ferred to as the grantor, and the Public Trustee oC the
County of JEPFERSON State of Colorado, hereinafter referred to as the trustee, Witnesseth:
THAT, WHFRF.AS, the grantor has executed his certain promissory note, bearing even date herewith, payable
to the order of BAtICO tARTGAGE COl'SPAtTY
$40 WEST YOURTH STREET
WATP,RI.OO, IOKA 50704
hereinafter referred to as the beneficiary, in --.Ypollars
for the principal sum of PORTY FOOR eTAOU SA?IDIrTWOt AoUN4R~ AEND~NO/ONIQBO~P -----" per centum
(S 44, 200.00 ).
( -9-1/2- %,) per annum until paid, and payable as follows, namely: In monthly installments )f
--Dollars ~ 371.72
TARES HUNDRED SEVENTY ONE AND 72/144- (
commencing on the first day of S1iPTEtUSER 19 78 ,and on the first day of each month thereafter
until the principal and interest are fully paid, except tA1tUa~$T final payment of pri~c0~al andSaid principal sum, for
paid; shall be due and payable on the iirst day oC
gather with interest thereon, and other payments provided to be made under the terms of this indenture, are herein-
after referred to as the indebtedness;
ANI) li'kIEREAS, the grantor is desirous not only of securing the prompt payment of the indebtedness, but also
of effectually securing and indemtrifying the beneficiary for and/or on account of any assignment, endorsement, or
guarantee of the indebtedness;
NOW, TF1EIfEF()R F., the grantor, in consider:+tion of the premises, and for the purposes aforesaid, has granted,
bargained, sold, and conveyed, and does hereby grant, bargain, sell, and convey unto the trustee, in trustEoreverr
all those certain prem~~ises and property situate in the
County of JEllrFSRSON ,and State of Colorado, known and described as follows, to wit:
Lot Forty-fire (45), We certify fftat this document is
33RD APD VAACE SUBDIVISION, ~ itue end rorn;;!~f°. c;~py o{the
Cormty of Jefferson, ori~innl,
State of Colozado. _
anco A-1a e Co.
THIS IS A FURCBASE NDNEY t10RTGAGE. ,- ~,a ~ GZ(~[;~!~
TA7C STATElfEBTS !OR THE REAL FROFRRTY DESCRIDED IP THIS INSTRUNBNT SHO
BANCO lADRTGAGB COMPAN7
840 WEST FOURTH STREET
P.O. Boa Tao
WATERLOO, IOWA 50704
TO }PAVE AND "f0 HOLD the same, together with all and singular the privileges and appurtenances thereunto
belonging: In Trust Nevertheless, That in case of default in the payment of the indebtedness, or any part thereof,
as the same shall become due, or in the payment of any prior encumbrance, principal or incovenants or aoreements
default shall be made in, or in case of violation or breach of any of the terms, conditions, g
herein contained, then upon notice and demand in writing filed with the trustee as provided by law, it shall and
may be lawful Eor the trustee to foreclose this deed of trust, and to sell and dispose of said premises en masse or
in separate paccels (as the trustee may think best) and all the right, title, and interest of the grantor, Counrty of
~blic gifction at the front door of the Courthouse, in the
FFSRSON ,State of Colorado, or on said prerises, or any part thereof, as may
be specified in the notice of such sale, for the highest and best price the same will bring in cash, four weeks' pub-
lic notice having been previously given of the time and place of such sale, by advertisement, weekly, in some
newspaper of general circulation then published in the county aforesaid or by such other notice as may then be re-
quired by law and to issue, execute and deliver his certificate of purchase, Trustee's Deed and/or certificate of
redemption al( as then may be provided by law; and the trustee shall, out of the proceeds or avails of such sale,
after first paying and retaining all fees, charges, the casts of making said sate and advertising said premises,
and attorney's fees es herein provided, pay to the beneficiary hereunder, or the legal holder of the indebtedness,
the amount of such indebtedness, and all moneys advanced by the beneficiary or legal holder oFthe indebtedness
Eor insurance, repairs, and taxes and assessments, with interest thereon at the rate set forth in the note secured
hereby, rendering the overplus, if any, unto the grantor; which sale or sales and said deed or deeds so made shall
be a perpetual bar, both in law and equity, against the grantor and all other persons claiming the premises aforo~
said, or any part t}tereof by, from, through or under the grantor. The legal holder of the indebtedness may purchase
torseertoethe applicationtofrthe~purchase moneyt blEoalrelease deedtiserequiredethe grant rshereby agreesct spay
all the expenses thereof.
And the grantor covenants and agrees to and with the trustee, that at the time of the ensealing of and delivery
of these presents he is well seized of the said premises in fee simple, and has good right, full power and lawful
authority to grant, bargain, sell and convey the same in manner and form aforesaid; hereby fully and absolutely
FHA FORM NO. 2105M (June 1977)
waiving and releasing all rights and claims he may have in or to said premises as a homestead exemption, under
and by virtue of any act of the General Assembly of the State of Colorado now existing or which may hereafter be
assed in relation thereto; and that the same are Free and clear of all liens and encumbrances whatever, and the
P
above bargained premises in the quiet and peaceable possession of the trustee, against all and every person or
persons lawfully claiming or to claim the whole or any part thereof, the grantor shall and will Warrant and Forever
Defend.
And the grantor, in order more fully to protect the security o[ this Deed of Trust, does hereby covenant and
agree as follows:
1. That he will promptly pay the principal of and interest on the indebtedness evidenced by the said note, at
the times and in the manner therein provided. Privilege is reserved to pay the debt in w}role, or in an amounE equal
to one or more monthly payments on the principal that are next due on the note, on the first day of any month prior
to maturity; provided, however, that written notice of an intention to exercise such privilege is given at least thirty
(30) days prior to prepayment.
2. That, together with and in addition to the monthly payments of principal and interest payable under the
terms of the note secured hereby, he will pay to the beneficiary, on the first day of each month until the said note
is fully paid, the following sums:
(a) An amount sufficient to provide the holder hereof with funds to pay the next mortgage insurance premium if
this instrument and the note secured hereby ere insured, or a monthly charge (in lieu of a mortgage insur-
ance premium) if they are held by the Secretary of Housing and Urban Development as follows:
(I) IC end so long as said note of even date end this instrument are insured or are reinsured under the provisions of
the National Housing Act, an amount sufficient to accumulate in the hands of the holder one (1) month prior to its
due date the annual mortgage insurance premium, in order to provide such holder with [ands to pay such premium
to the Secretary of Housing and Urban Development pursuant to [he National Housing Acl, as emended, and ap-
plicable Regulations thereunder; or
(II) If and so long es said note of even date and this instrument are held by the Secretary of Housing and Urban De-
velopment, a monthly charge (in lieu of a mortgage insurance premium) which shall be in en amount equal to one-
twelfth (1/12) of one-hell (~/~) per centum of the average outstanding balance due on the note computed without
taking into account delinquencies or prepayments;
(b1 A sum equal to the ground rents, if any, next due, plus the premiums that will next become due and payable
on policies of fire and other hazard insurance on the premises covered hereby, plus taxes end assessments
next due on these premises (all as estimated by the beneficiary)]ess all sums already paid therefor divided
by the number of months to elapse before one month prior to the date when such ground rents, premiums,
taxes, and assessments will become delinquent, such sums to be held by the beneficiary in trust to pay
said ground rents, premiums, taxes, and special assessments; and
(c1 All payments mentioned in the two preceding subsections of this paragraph and all payments to be made
under the note secured hereby shall be added together and the aggregate amount thereof shell be paid by
the grantor each month in a single payment to be applied by the beneficiary to the following items in the
order set forth:
(I) premium charges under the contract of insurance with the Secretary of Housing and Urban Development, or monthly
charge (in lieu of mortgage insurance premium), as the case may 6e; .~
(H) taxes, special assessments, fire and other hazard in surence premiums;
(IH) interest on the note secured hereby; and
(IV) emortlzatIon of the principal o[ said note.
Any deficiency in the amount o[ such aggregate monthly payment shall, unless made good by the grantor
prior to the due date of the next such payment, constitute an event of default under this Deed of Tmct.
The grantee may collect a "late charge" not to exceed four cents (4¢1 Eor each dollar (~l) of each pay-
ment more thanfiEteen(15)daysin arrears to cover the extra expenseinvolvedinhandlingdelinquentpayments.
3. That if the total of the payments made by the grantor under(6Jparagraph 2 preceding shall exceed the amount of
payments actually made by the beneficiary for taxes or assessments or insurance premiums, as the case may be, such
excess, if the loan is current, at the option of the grantorshall be credited by the beneficiary on subsequent payments to
be made by the grantor, or refunded to the grantor. If, however the monthty payments made by the grantor under(b)of
paragraph2 preceding shalt not besufficient to pay taxes and assessments and insurance premiums as the case may be,
when the same shall become due and payable, then the grantor shall pay to the beneficiary any amount necessary to
make up the deficiency, on or before the date when payment of such taxes, assessments, or insurance premiums shall
be due. If at any time the grantor shall tender to the beneficiary, in accordance with the provisions of the note se-
cured hereby, full payment of the entire indebtedness represented thereby, the beneficiary shall, in computing the
amount of such indebtedness, credit to the account of the grantor all payments made under the provisions of (a) of
paragraph 2 hereof, which the holder of said note has not become obligated to pay to the Secretary of Housing end
Urban Development, and any balance remaining in the funds accumulated under the provisions of (61 of paragraph 2
hereof. If there shall be a default under any of the provisions of this Deed of Trust resulting in a public sale by the
tnlstee or trustees of the premises covered hereby, or if the beneficiary acquires the property otherwise after default,
the beneficiary shall apply, et the time of the commencement of such proceedings, or at the time the property is other-
wise acgvired,the balance then remaining in the funds accumulated under (b)oE paragraph 2 preceding, as a credit
against the amount of principal then remaining unpaid under said note, and shall properly adjust any payments which
shall have been made under (a) of paragraph 2.
4. That he wilt pay all taxes, assessments, water rates, and other governmental or municipal charges, fines,
or impositions, for which provision has not been made hereinbefore, and in default thereof the beneficiary may pay
the same; and that he will promptly deliver the official receipts therefor to the beneficiary.
S. That he will keep the improvements now existing or hereafter erected on the said premises, insured as mnr
be required from time to time by the beneficiary against loss by fire and other hazards, casualties, and r~~r~i-
gencies in such amounts end for such periods as may be required by the beneficiary and will pay prompti~
due, any premiums on such insurance provisions for payment of which Iras not been made hereinbefore. A!
once shall be carried in companies approved by the beneficiary and the policies and renewals thereof shat? '
by the beneficiary and have attached thereto loss payable clauses in favor of and in form acceptable to 1'
ficiary. In event of loss the grantor will give immediate notice by mail to the beneficiary, who may make proof of
loss if not made promptly by the grantor, and each insurance company concerned is hereby authorized and directed
to make payment for such loss directly to the beneficiary instead of to the grantor and the beneficiary jointly, and
the insurance proceeds, or any part thereof, may be applied by the beneficiary at its option either to the reduction
of the indebtedness hereby secured or to the restoration or repair of the property damaged. In event of foreclosure
of this Deed of Trust or other transfer of title to the said premises in extinguishment of the indebtedness secured
hereby, all right, title, and interest of the grantor in and to any insurance policies then in force shall pass to the
purchaser or grantee.
6. That he will keep the said premises in as good order and condition as they are now and will not commit or
permit any waste of the said premises, reasonable wear and tear excepted.
7. That if the premises, or any part thereof. be condemned under any power of eminent domain, or acquired
fora public use, the damages, proceeds, and the consideration for such acquisition, to the extent of the full
amount of indebtedness upon this Deed of Trust, and the note secured hereby remaining unpaid, are hereby
assigned by the grantor to the beneficiary and shall be paid forthwith the beneficiary to be applied by it on
account of the indebtedness secured hereby, whether due or not.
8. The grantor further agrees that should this Deed of.Trust and the note secured hereby not be eligible for
insurance under the National Housing Act within five months from the date hereof (written statement of
any officer of the Department of ESousing and Urban Development or authorized agent of the Secretary of Housing
and Urban Development dated subsequent to the five raonthn time from the date of this Deed of Trust,
declining to insure said note and this Deed o[ Trust, being deemed conclusive proof of such ineligibility), the
beneficiary orthe holder of the note may, at its option, declare all sums secured herebyimmediatelydue and payable.
9. That in the event of default in the payment of the indebtedness or any part thereof, or of a breach or violation
of any of the covenants or agreements herein, then, and in that event, the whole of the indebtedness and the in-
terest thereon to the time of sale, may at once, at the option of the beneficiary or the legal holder of the indebted-
ness, be declared due and payable, and the said premises to be sold in the manner and with the same effect as if
the indebtedness had mat~red and that iE foreclosure is made by the trustee, the grantor agrees to pay the sum of
1?NH HUNDRED AND NO 10(5---------~--------_---_-~--------Dollars ($ 500.00 ), as attor-
ney's fees for. services in connection with said foreclosure proceedings, and said attorney's fee shall be allowed
and added by the trustee to the cost of foreclosure; and if foreclosure be made through the courts, a reasonable
attorney's fee shall be taxed by the court as a part of the cost of such foreclosure proceedings, and any and all
such attorney's fees shall be and become a part of the indebtedness secured hereby.
I0. That in case of default, whereby the right of foreclosure occurs hereunder, the beneficiary or the holder of
the indebtedness or certificate of sale shall at once become entitled to the possession, use and enjoyment o[ the
property aforesaid, and to the rents, issues and profits thereof, from the accruing of such right and during the pend-
ency of foreclosure proceedings and the period of redemption, if any there be; and such possession, use, enjoyment.
rents, issues and profits shall at once be delivered to the beneficiary or the holdec of the indebtedness or certifi-
cate of sale on request, and on refusal, the delivery of such possession may be enforced by the beneficiary or the
holder of the indebtedness or certificate of purchase shall be entitled to a Receiver for said property, and of the
rents, issues and profits thereof, after any such default, including the lime covered by foreclosure proceedings and
the period of redemption, if any there be, and shall 6e entitled thereto as a matter of right without regard to the
solvency or insolvency of the grantor or of the then owner of said property and without regard to the value of the
property, and such Receiver may be appointed by any court of competent jurisdiction upon ex pane application, and
without notice, notice being hereby expressly waived, and the appointment of any such Receiver, on any svchap-
plication without notice, being hereby consented to by the grantor for and otr his own behalf of his heirs, assigns
and legal representatives, and all persons claiming by, through or under him, and alt rents, issues and profits,
income and revenue of said property shall be applied by such Receiver according to law and the orders and direc-
tions of the court. -'
Notice of the exercise of any option granted herein, or in the note secured hereby, to the beneficiary is not
required to be given, the grantor hereby waiving any such notice.
The covenants herein contained shall bind, and the benefits and advantages shall inure to, the respective
heirs, executors, administrators, successors and assigns of the parties hereto. lUhenever used, the singular num-
ber shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders.
IN W[TNESS WEiEREOF, the grantor has hereunto set his hand and seal on the day and year first hereinbe-
fore written.
Signed, sealed and delivered in the presence of
We certify that this dorufnent is
a true and complete a;~py of the
original.
^~jancfii P~lor age Lo.
[SEAL]
[SEAL]
[SEAL]
[SEAL]
STATE OF COLORADO
JEFFERSON ss:
COUNTY OF lOTR JULY
19 7~'hehf~rsg~j~g i9str~t~~(rE~sl~Nlln4LE~Fd..~'A Ief DOCICTERr Hvabant~ytind Wife AND
WETNESS my hand and off'c' I eat1. RICHARD D. WP.ST A}lTE F.ORLYN L. WBST, HusbRttd and iiife
My commission expires lrlEl~il~. 6. 1982
I SGA[.] Notary Fublic
STATE OF COLORADO
ss.
COUNTY OF
I hereby certify tbat this inst ntment w'as filed for record in my office at o'clock M.,
19 ,and is duly recorded in book page
Clerk and Recorder
Fees, $
BY
~~ U, 5. C00: 19)] NI H3 RfGION NO, 8
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P.O. BOX 638 TELEPHONE: 303/237-6944 The City Of
6 y500 WEST 29TH AVENUE • WHEAT RIDGE. COLORADO 80034 ~1~'1PA f
Ridge
January I2, 1993
This is to inform you that Case No. wA-92-20 _ which is a
request for approval of variances to lot width and area as regulated b
Section 26-15(F) to allow a duplex in a Residential-Two zone district.
for property located at
33rd Avenue
will.be heard by the Wheat Ridge BOARD OF ADJUSTMENT in the
Council Chambers of the Municipal Complex, 7500 West 29th Avenue
gt 7,:30 p.m. on January 28, 1993
All owners and/or their legal counsel of the parcel, under
consideration must be present at this hearing before the BOARD OF
ADJUSTMENT.
As an area resident or interested party, you have the right to
attend this Public Hearing and/or submit written comments.
It shall be the applicant's responsibility to notify any other
persons whose presence is desired at this meeting.
If you have any questions or desire to review any plans, please
contact the Planning Division. Thank you.
PLANNING DIVISION
"The Carnation City"
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CITY OF WHEAT RIDGE PLANNING DIVISION
,STAFF REPORT
TO: BOARD OF ADJUSTMENT Date Prepared: January 8, 1993
Date of Meeting: January 28, 1993 Case Manager: Robert Gaspar
Case No. & Name: WA-92-20/SHEARN
Action Requested: Variance to minimum lot frontage and area
required for a duplex in a Residential-Two zone district.
Location of Request: 7235 West 33rd Avenue
Name & Address of Applicant(s): Theresa L. Shearn
977 Red Oak Circle
Newport News, VA 23602
Name & Address of Owner(s): Theresa L. Shearn Evelyn Bibb
977 Red Oak Circle 6207 W. 75th
Newport News, VA 23602 Arvada, CO
-----------------------------------------------------------------
Approximate Area: 9375 square feet
Present Zoning: Residential-Two
Present, Land Use: Duplex
Surrounding Zoning: N, ~, S, & ~: Residential-Two
Surrounding Land Use: N: Multiple-family, S, E & W: Duplex
Date Published: January 14, 1993
Date to be Posted: January 14, 1993
Date Legal Notices Sent: January 14, 1992
Agency Check List ( ) Attached (XX) Not Required
Related Correspondence ( ) Attached (XX) None
ENTER INTO RECORD: _ _
( ) Comprehensive Plan (XX) Case File & Packet. Materials
(XX) Zoning Ordinance (XX) Slides
( ) Subdivision Regulations (XX) Exhibits
( ) Other
-----------------------------------------------------------------
JURISDICTION
The property is within the City of Wheat Ridge, and all
notification and posting requirements have been met, therefore
there is jurisdiction to hear this case..
CITY OF WHEAT RIDGE PLANNING DIVISION
STAFF REPORT
I. REQUEST
The applicant is requesting approval of a twenty five (25') foot
variance to the required one hundred (100') foot minimum lot
frontage, and approval of a 3125 square foot allowance to the
required 12,500 square foot minimum lot size to allow a duplex in
a R-2 Zone District.
II. SITE
The subject site was originally built as a single family
residence. At the time of construction, there was free access to
all areas of residence and was occupied by a single family.
The property was susequently converted to a two family rental.
The residence conversion was completed without the knowledge or
permission of the City of Wheat Ridge. The property again sold
in 1978 to the current owner.
III. FINDINGS OF FACT
1. Can the property in question yield a reasonable return in
use, service or income if permitted to be used only under
the conditions allowed by the regulations for the district
in which it is located?
The property was originally built_as a single family
residence and therefore would yield a reasonable return in
use, service or income under the conditions of the Code; and
2. Is the plight of the owner due to unique circumstances?
This property is under the same constraints as other all
properties in the R-2 District and is therefore not due to
unique circumstances; and
3. If the variation were granted, would it alter the essential
character of the locality?
It will probably not alter the essential character of the
neighborhood as there are legally existing duplexes adjacent
to the property and in the neighborhood. However, the
allowance of the variation may effect street parking,
traffic, utility usage and added density; and
4. Are there any particular physical surroundings, shape or
topographical conditions of the property involved that would
result in a particular hardship?
No; and
5. Are the conditions upon which the petition for a variation
is based applicable, generally, to the other property within
the same zoning classification?
Yes. However, the variation would not be precedent setting
as similar variations have occurred in the past; and
6. Is the purpose of the variation based exclusively upon a
desire to make more money out of the property?
The property is currently marketed as a rental and is not
owner occupied, therefore, the appearance of a profit factor
is evident; and
7. Has the alleged difficulty or hardship been created by any
person presently having an interest in the property?
The current owner apparently purchased the property as a
two-family rental. Although the owner did not originally
create the difficulty, it was continued by the owner and
therefore may be said to have been created by the owner; and
8. Will the granting of the variation be detrimental to the
public welfare or injurious to other property or
improvements in the neighborhood in which the property is
located?
The granting of this variance will increase the number of
duplexes in the neighborhood. However, the use of the
property as a duplex has existed for many years; and
9. Will the proposed variation impair the adequate supply of
light and air to adjacent property or substantially increase
the congestion in the public streets or increase the danger
of'fire or endanger the public safety and substantially.
diminish or impair property values within the neighborhood?
The granting of this variance will not impair the air or
light supply to adjacent properties or substantially
increase. congestion, fire danger or endanger public safety
or impair property values.
IV. CONCLUSIONS AND RECOMMENDATIONS
A conclusion or recommendation will not be made by staff on this
application so as not to predicate any prejudice for possible
future court hearings.
~ 7497^
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( y .
P.O. BOX 638 TELEPHONE: 303/237-6944 The Clfy Of
7500 WEST 29TH AVENUE WHEAT RIDGE, COLORA00 80033 cWheat
Ridge
January 20, 1993
This is to inform you that Case No. WA-92-20 which is a request
for approval of variances to lot width and area as regulated by Section
26-15(F) to allow a duplex in a Residential-Two zone district.
for property located at ' -~T _
- u~niie
. _
will be heard by the Wheat Ridge BOARD OF ADJUSTMENT in the
Council Chambers of the Municipal Complex, 7500 West 29th Avenue
at 7:30 P.M. on - ruaYy ~.
All. .owners and/or their- legal counsel of the parcel under
consideration must be present at this hearing before the BOARD OF
ADJUSTMENT.
As an area resident or interested party, you have the right to
attend this Public .Hearing and/or submit written comments.
It shall be the applicant's responsibility to notify any other
persons whose presence is desired at this meeting.
If you have any questions or desire to review any plans, please
contact the Planning Division. Thank you.
PLANNING DIVISION
"Tlz~ Carnation City"
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CITY OF WHEAT RIDGE
~ ~~~~~
FEB d 91993
t~a'~J~
City o£ vd'aoat Ridge +~~~ ~ ~PIV~Vt'f
Atttn: Code ~.forcement ~J'ficer, Robert Gaspar
P, o. Box 638
?+Theat Ridge, CO 80034^0638
To those concerned:
Thin letter is in protest of the variance notices Hosted at
the vicinity of W. 33rd AvAnue at Teller Stree~ indicated
as case No. YtA 920 and WA 92 23 which reveals that applications
have been made for setting aside the code for the limitations
ascribed to single family dwellings,
There seems to be a profilat3.on ~f violations of the code
and it is quite visiih$e that there are multiple families that
ors residing in thPSe durellinga, This situation has been refered
to in Robert Gaspar~s let+er to Bob Middaugh as of September 11,E 1992
Six proj~erties are refered to»
This situation has come upon us quite inii.diously and became known
®nly recently as we have ®bserved a significant increase in adult
trafii.a around these houses and an increase in the number ®f
auto vehicles» This is over-population of our community,~d a crowding
®f vehicles into the limited spaceb`~ of these small lots» A general
deterioration is taking place of what-was once a well kept neigh-
borhood, This overloading, moreover has resulted in abrasive
behavior of some residents of these dwellings» (As police files
will probably reveal)
The residential codes were designed many years ago to reasonably
pretestt over population of people and vehicles.
if it is in fact true that sellers of properties are leading
bu;;ers of these properties to believe that they are buying
income property in which the ground floor, and the basements
are rented as duplex apartments, this practice is unfair
and a misrepresentation„ Such practice is a deliberate scoffing
at the code,»
Having lived in our home for 39 years we resent what is happening
to our neighborhood.. The deterioration that accompamies violations
®f the codes is a main factor tkiat contributes to depreciation of
property values., We depend on the department of Code T~.foreement
to proieet our neighborhood communities. Property ®wners should
conform to the coda that has made this an ideal community in
which to live„ n
a
.uu ruo»~rv• +•
W. 32nd Place
February 6,
P.O. BOX 63s TELEPHONE: 3031237-6944 The City of
k
756J WEST 29TH AVENUE .WHEAT RIDGE. COLORADO 80034 cwheat
Ridge
February 10, 1993
This is to inform you that Case No. WA-92-20 which is a
request for aPProval of variances to lot width and area as regulated by
Section 26-15(F) to allow a duplex in a Residential-Two zone district.
for property located at 7235 W. 33rd Avenue
will be heard by the Wheat Ridge BOARD OF ADJUSTMENT in the
Council Chambers of the Municipal Complex, 7500 West 29th Avenue
at 7:30 p.m. on February 25, 1993
All owners and/or their legal counsel of the parcel under
consideration must be present at this hearing before the BOARD OF
ADJUSTMENT.
As an area resident or interested party, you have the right to
attend this Public Hearing and/or submit written comments.
It shall be the applicant's responsibility to notify any other
persons whose presence is desired at this meeting.
If you have any questions or desire to review any plans, please
contact the Planning Division. Thank you.
PLANNING DIVISION
"The Carnation City"
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i WB TRIDGE JEFFERSON COUNTY ASSESSOR/TREASURER SYSTEM WSRM153
!E` 02-25-93 20:34:07 MASTER ATSI002
Next Screen:
j Key: 39-261-14-014 Schedule: 022463 Status: 1 Parcel ID: 39-261-14-014
fT-Dist: 3142 Reason: R75 Related Schedules
Ownerl: DOCKTER TERESA L
hOwner2: WEST RICHARD D
j C/O:
I Mail: 06207 Dir: W Name: 75TH
City: ARVADA
Prop: 07235 Dir: W Name: 33RD
City: ~AT RIDGE
DBA:
Most Recent Sale Data
Date: 4-26-1987 Code: 44
Amt: Deed: QC
Sdiv Reception B/T Lot
j 001400 87075001 0045 .
I Sub: 33RD AND VANCE
Ty: DR Sf: Ut:
St: CO Zip Code: 80003 -
Ty: AV Sf: Ut:
St: CO Zip Code: 80033 -
Date Land:
Assessed Imps:
4-20-1991 Total:
Key Sec Twn Rng Qsec
26 3 69
~~ Struc Use Built Unit Cons Bsmt Blds Flrs
I RESID RANC 1954 ~ 3F OF
F7=Additional Master nfo FB=Print Master
Actual Assessed
13500 1940
51100 7330
64600 9270
Land Area Tot Acres
Nhood: 0412
GT Liv Area Bsm Area
NO 1054 1054
Info
Last Change Date:
ADDITIONAL OWNERS EXIST
lCmdl 2Cmd2 3Cmd3 4Cmd4 5Cmd5 6Cmd6 7Cmd7 8Cmd8 9Cmd9 OCmd10
Area: 2
Total Land
a8
°^ ~r 'v !.
fry 17 1993
~ ' ~t~UIT
PLANNIrdG & DEVELOPMENT
~Ir. 3ob Gaspar
Code Enforcement Officer
City of ',Jheat Ridge, CO
Dear Sir: _ .
37-25 Reed St. GJheat Ridge)
Lakewood, Co 0215
February 15, 1993
Re: 7245 oV. 33rd Ave.
(which ewe originally owned
and presently hold mortgage
thereon)
7235 tad. 33rd Ave.
(originally owned by Charles
Ross Perry and Teresa Perry
This is in regard to our telephone conversation Feb. 10, 1893
conaerring properties mentioned above in ~r'Theat Ridge, CO, which
have been cited for non-compliance for legal rentals.
In 1953-4 both properties were contracted for and built
providing a mother-in-lavr apartment in the lower level (vralk-out
basements). Ours was occupied by relatives off and on until_lg7y.;
the Perry property until 1976. An addition to the upper level
•,•~as :made in 1966 on the 72y.5 'ud, 33rd house.
In 1978 when the Perry property (7135 'v"l. 33rd Ave) sold to
Dockter-','lest, a young Dockter couple occupied the lower level and
the upper level was rented. I called the ~'Iheat Ridge zoning board
at this time to see hour this situation-could develop.ry I vras told
that the 7235 ul. 33rd Ave. property had been declared non-conforming
legal double as long as it had pre-existing kitchen and living
qu`ariers. do not have vrritten confirmation of this statement.
In January, 1980 vre listed our property (7245 `rd. 33rd Ave.)
with a realtor and it was described as having a mother-in-lavr
apartment. It sold in February; 1880 to P.P, and Liliana itimball
who turned it into a tyro-family rental liY>e th.e one next door.
It was sold in IJovember, 1990 to Peggy Charles, Las Vegas, NV,
tha_present owner.
I believe this information might be noted.
Yours truly,
I:. Loraine E~//h/r~hvpaNr~~d~cp.~
Charle Ehrhard
, ~
CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993 Page 2
2. APPROVE THE ORDER OF THE AGENDA
Motion was made by Board Member ABBOTT, seconded by Board
Member ROSSILLON, that the agenda be approved as printed.
3. PUBLIC FORUM (This is the time for anyone to speak on any
subject not appearing on the agenda:)
No one came forward to speak.
4. PUBLIC HEARING
A. Case No. WA-92-20: An application by Teresa L. Shearn for
approval of variances to lot width and area as regulated by
Section 26-15(F) to allow a duplex in a Residential-Two zone
district. Said property is located at 7235 W. 33rd Avenue.
Bob Gaspar presented the staff report. All pertinent
documents were entered into record, which Chairman HOWARD
accepted.
Board Member BERNHART wanted to know why staff had not given
a recommendation, and Mr. Gaspar replied if this request is
denied and the applicant continues the use, part of the
abatement procedure for the City would be to-bring this
before municipal court. Staff feels if they give a ---
recommendation they are predicating some prejudice to the
Board.
Board Member BERNHART asked if the present owners turned
this into a duplex and prior to that time was it an entire
family living on two different floors, Mr. Gaspar answered
yes. This historical information was given from a neighbor
who had lived adjacent to the property since the houses were
constructed up to the 1970's (referring to the Erhard
letter). Mr. Gaspar pointed out on the overhead the legal
duplexes and the duplexes that were built under Jefferson
County's zoning code.
Board Member BERNHART questioned then if these cases are the
first two out of several coming before the Board, and Mr.
Gaspar said it is possible there will be more as offhand he
can sight four or five more.
Board Member BERNHART said he assumes it is the City that is
bringing the action, so there will be no alternative but to
bring the other five before. the Board, and Mr. Gaspar
answered without abatement of the violation,.. staff still has
the opportunity to bring them to court and force them to
appeal to the Board or abate the violation 'through the
courts.
CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993
Page 3
Board Member ABBOTT asked if-the City has some new program
to flush these illegal residencies out, and Mr. Gaspar
replied there is some political enterprising going on -that
brought this to the attention of staff.
Chairman HOWARD asked if there had been any changes in the
zoning ordinance (#90) relating to square footage or street
frontage, and Mr. Gaspar said no, basically the current code
represents what was in place at the county in the 1950's
when the dwellings-were originally constructed.
Chairman HOWARD reiterated that at that time 100 foot
frontage was required for multiple units-with 12,500 square
feet, and Mr. Gaspar replied yes, the same standards were in
place at the time of construction..-
Board Member BERNHART asked what the next step is for the
City if this is denied, and Mr. Gaspar answered the City
would request the abatement of the violation within a
specified time frame. If abatement does not-occur within
that time frame, a summons to municipal court would be
issued for a violation of the City codes. The applicant at
that time has the opportunity to have a judge or jury hear
his case in a trial situation.
No further questions were asked of staff.
Attorney for the applicant, G.E. Shields, 12600 West Colfax,
Lakewood, CO, was sworn in. Mr. Shields represents the
applicant and owner who lives in Newport News, West
Virginia and could not be here tonight. Mr. Shields called
his first witness to the stand.
Betty Keil, 7235 West 33rd Avenue, Unit A, was sworn in.
Mr. Shields asked who all lived in Unit A, and Ms: Keil said
herself, her 13 year old son and her 21 year old daughter
stays with her on occasion.- Nfs. Keil said that Unit B is ---
occupied by a Mr. George Demhuff. There is no garage; only
off-street parking, however there are only two cars parked
in the driveway at any one time. There are completely
separate living quarters upstairs and down. Ms. Keil has
lived there 3 1/2 years and it would be a hardship to have
to move out.
No questions were asked of Ms. Kiel.
Mr. Shields called Evelyn West Bibb, co-owner of the duplex
in question. Ms. Bibb said they purchased the property in
1978 and it has been used as a duplex for 15 years.. Ms.
Bibb said she had checked with the County and City regarding
zoning and was told it was a legal double.--The house was
built in 1953 with an existing unit downstairs that has its
CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993
Page 4
own kitchen, dining room, and bedroom. There is a center
staircase with a locked door, but nothing has been closed
off. Changing this to a single family residence would
result in a hardship for both owners, plus a loss of income.
Board Member ABBOTT asked who did she call that told her it
was a legal double, and Ms. Bibb answered she called the
City and the County. Ms. Bibb pointed out the five duplexes
in the area that existed when she purchased this property.
No further questions were asked of Ms. Bibb.
Loraine Ehrhard, 3125 Reed Street, the original owners of
the property, was called to the stand and sworn in. The
property was built in 1954 and was contracted in advance to
be built with an apartment in the lower level. Building
permits were obtained at Jefferson County, and inspected by
Jefferson County building inspectors. There are bedrooms,
living rooms, and kitchens in both upstairs and downstairs
that have been there since 1954.
Board Member BERNHART asked if the units were closed off at
that time, and Ms. Ehrhard said they were open partly
because there was only one set of washer and dryers.
Chairman HOWARD asked since the house was built as two units
were the people related that lived there, and Ms. Ehrhard
answered yes.
No further questions were asked of Ms. Ehrhard.
Mr. Shields spoke saying the evidence has show that the
property at 7235 W. 32nd Avenue was built in 1953-54 with
the building permit issued by Jefferson County. The
dwelling was designed to be two living units, and gives
assumption that the permits were issued legally. The zoning
ordinance at that time allowed two family living quarters to-
be built on these lots. Mr. Shields stated there is a case
in Denver were a building permit was mistakenly issued for a
dwelling and the courts ruled, after long litigation, to let
it be built. The same applies here - 40 years after this
structure was built, it is considered an illegal use. When
the City was incorporated in 1969 this was considered a
legal non-conforming use according to Section 26-7 of the
Code. Mr. Shields then read Section 26-7. Testimony has
been given that there has been no structural changes inside
the building.
Mr. Shields added this is, by definition of the Wheat Ridge
code, a legal non-conforming use. Hoo-;~~.,rr, if you elect not
to declare this a legal non-conforming rise, then the
requirements have been met for a variance.
CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993
Page 5
Mr. Shields continued saying this request shows no evidence
that it will increase the number of duplexes in the area and
there would be the same number of cars and congestion as
with a single family dwelling.- Profit is a factor. -Staff --
agrees this will not set a precedent.
Board Member ABBOTT said that mother-in-law apartments are
usually different due to the fact the people are usually
related. Mr. Shields wanted to know what City code`s
definition of 'family' is, and informed the Board the
conclusion of the Federal Court is that you cannot
discriminated against. unrelated people living together.
Board Member ABBOTT added ours might be an antiquated
concept and Mr. Shields agreed.
Mr. Moberg answered in our code of laws the definition of
family is 'people related by blood or marriage', however
mother-in-law apartments are not_defined. Our code defines
structures per family, so as far as staff is concerned this
is a single family dwelling with two kitchens.
Board Member ABBOTT said it seemed the appeal is related to
lot size, but the real question is related to number of
families that are living there, and asked staff if this
could have been appealed either way. Mr. Moberg said the
reason is the zoning allows them to have two families on the
property, but the area in width does not allow them to have
two families on that property. A variance for number of
families would almost be a 'use variance' rather than one to
lot width and size.
Mr. Shields-said with the City's definition of family, there
did not seem to be an issue here and Mr. Gaspar said the
issue is definition of dwelling, and read that section of
the code. Mr. Gaspar continued saying what is being
contested is when there is a locked door it-becomes a
multiple or two dwelling unit, and therefore, it is a
duplex.
Mr. Shields stated the Ms. West can testify there is no
locked door and wanted that to be put in the record. Ms.
West added when you are upstairs in the kitchen and leave to
come down the stairs to the backyard, there is a platform at
the bottom of the stairs where there is a locked door that
goes to the unit downstairs (it .was-that way when we bought
the house), so there was never a blocked off or locked
stairwell.
Board Member ABBOTT wanted to know if there is an interior
door for someone upstairs to enter the downstairs, and Ms.
West answered no, both units have two entrances and two
CITY OF-WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993
Page 6
exits, so a person would have to go completely outside of
the building and then return back into it on the upper
level. Ms. West explained further.
Greg Moberg clarified staff contends this house was built as
a single family home and was converted at some other point
in time to a duplex, and that conversion took place
illegally.
Chairman HOWARD asked how staff considered this illegal as
far as being two units, and Mr. Moberg said the testimony
shows this was built as a single family home and converted
later on. Mr. Gaspar added that-the County's records are
incomplete at best.-
Mr. Shields suggested to the Board the only first hand
evidence without the plans is the Ehrhards' testimony which
states it was that way from the beginning.
No further questions were asked of Mr. Shields.
Laura Kent, 7200 W. 33rd Avenue, was sworn in. Ms. Kent is
a neighbor and testified this is a single family house with
a basement and according to the County, that is what the
taxes are based on. Ms. Kent has no problem with the
tenants or the house but both units have one gas meter, one
electric meter, one water heater, and one furnace. The
house has no fire-walls. Ms. Kent added there have been
prior disputes over the electric and heat bills. There are
problems connected with a house that is built as a single
family unit and then converted to a two family unit.
Chairman HOWARD asked what department did she talk to when
she went to the County, and Ms. Kent answered the assessor's
office.
No further questions were asked of Ms. Kent.
Evelyn Martin, 7375 W. 33rd Avenue, was sworn in. Ms.
Martin is against this request because the houses are not
kept up and it does affect property values. The parking and
amount of traffic are also affected.
No questions were asked of Ms. Martin.
Chuck Coleman, 7245 W. 32nd Place, was sworn in. Mr.
Coleman is in objection to this .request .and mirrors the
previous statements. He has lived there for 12 years and
has seen the neighborhood fluctuate quite often. 'rhe house
is in poor condition which affects our home and property
values and he feels there is a neglect on the property
owners, and it appears to be a purely monetary venture of _--
the owners.
CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993
Page 7
Board Member BERNHART asked when Mr. Coleman moved there 12
years ago was there duplexes at that time, and Mr. Coleman
answered yes, but he was not aware of it.
Board Member ABBOTT asked Mr. Coleman to point out some of
the legal two family residences on the overhang.
Board Member ABBOTT asked Mr. Coleman if they had to revert
back to 'mother-in-law' units, what assurance would you have
that the property would be kept up and there would be no
traffic problems. Mr. Coleman said he believed when there
are related parties living in the house it would be kept up
better and with no dispute over utilities.
Board Member ABBOTT said the condition in this neighborhood
has gone on for many years and no one said anything about
it, and Mr. Coleman said the neighborhood has slowly
deteriorated and he was unaware of the duplexes.
Board Member .ABBOTT questioned if the neighborhood prompted
this action, and Mr. Coleman replied yes, they are tired of _
the annoyances and feel this is long overdue.
Board Member BERNHART asked if the 'legal' duplexes are
owned or are they rentals, and Mr. Coleman answered rentals.
No further questions were asked of Mr. Coleman.
Donald Drummond, 7260 W. 34th Avenue, was sworn in. Mr.
Drummond has lived at this address.-for 38 years and never
had problems with the original owners that had mother-in-law
units. The problem started about 8-10 years ago and the
rental units are one big reason; causing density of people
and traffic problems. Mr. Drummond said he could not count
the amount of renters these places have had in the-last five
years. He is very. concerned about property values and would
like to have the code enforced.
No questions were asked of Mr. Drummond.
Calvin Woodard, 7265 W. 32nd Place, was sworn in. Mr.
Woodard is in agreement with his neighbors, and feels there
will be more requests for variances if these are granted.
Mr. Woodard then read Section 26-14 of the Wheat Ridge Code,
Intent and Purpose of the Residential-Two district. He has
lived there 39 years and it has always been a nice-and
stable neighborhood. When the Perry family lived there they
had pride in the community, along with the other property
owners. Mr. Woodard said these are good codes and were
established so there would not be an over density of people.
CITY OF WHEAT RIDGE BOARD OF ADNSTMENT
MINUTES OF MEETING: February 25, 1993
Page 8
This over density will cause deterioration and depreciation
of property values. Things were allowed to happen for so
many years that no one was aware of and now he would like to
see the code enforced.
Board Member BERNHART asked when this was sold as a duplex,
were you aware of the change, and Mr. Woodard answered he
was not aware of the change, only the mother-in-law unit
that Mr. Perry had.
Board Member BERNHART asked Mr. Woodard when was he aware of
the two different families, and he replied last-year.
Board Member BERNHART asked if he was being specific of
7235, and Mr. Woodard answered no.
No further questions were asked of Mr. Woodard.
Todd Young, 3290 Vance Street was sworn in. Mr. Young moved
in four years ago and was not aware of the duplexes.
However, he has seen in the last years the increase of .cars
along the street:- Mr. Young feels these were not-designed
as duplexes because they have the same gas and electric
meters, water heaters and furnaces. There are also no fire
walls and it is evident they were built to be single family
homes.
No questions were asked o£ Mr. Young.
Erica Young, 3290 Vance Street, was sworn in. Mrs. Young
said when they purchased their home they were told it was
zoned for duplexes also. She does not mind duplexes, but
this clearly looks like a single family home with a single
family driveway.
No questions were asked of Mrs. Young.
Terry Stuart, 3250 Vance Street, was sworn in. Ms. Stuart
asked if there is a number of tenants that can be rented one
unit out to, and Mr. Gaspar answered by code there can_only
be three unrelated and any number of related. -Ms. Stuart
voiced she was opposed to this variance as this was built as
a mother-in-law and not a duplex. Ms. Stuart said she was
in the house in 1975-76 and is was a single family home.
Board Member BERNHART asked if she had ever complained to
the City, and Ms. Stuart replied no because she was under
the impression it was a single family home. Board Member
BERNHART asked when did she know it was a two family unit,
and Mr. Stuart said 4-5 years after she was in the house.
No further questions were asked of Ms. Stuart.
CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993
Page 9
Glen Gidley stated this is not the last case that will be
reviewed and it is important to point out the definition of -- - __
"accessory apartment" since the City does not have a--
specific definition. This is defined as an area within a
dwelling unit that is set aside for totally separate living
quarters for another family.. Our ordinance does not even __
speak of this.
Mr. Gidley explained the past order of zoning calls in terms
of what is said, what the realtor hears, and what is
conveyed to the buyer. Realtors usually do not ask for
flood plain or non-conforming information, only zoning, and
there is an assumption that all Residential-Two zoning
allows two family dwellings. Staff does not let realtors
off the hook that quick anymore and we try to go that extra
step and explain what Residential-Two zoning means. Nothing
in the code says you cannot have a mother-in-law apartment,
its when you occupy it with a separate family that presents
the problem. It is not how a dwelling is built, it is how
it is occupied. When staff is asked their opinion on
conformity, it is based_upon what the owner says (since the
City has no records prior to 1969). If we are asked if
something is a legal non-conforming use and upon research
cannot verify one way or another and dust because letters
were signed or maybe told it was legal; that does not make
it legal. Staff does not have the authority to vary- the
regulations.
Mr. Gidley emphasized -this is not a court of law, and there
will be other cases that have attorneys presenting them, so
please do not be intimidated by sight or threats of
litigation and please make a decision based upon the facts
as you see it. -The Board should demand hard evidence
because negligence of property, noise, and police calls are
not characteristics unique to illegal duplexes; and will
have no bearing on the case before you. In combination with
other problems, these may bring down the neighborhood but
they again, are not unique to two family dwellings.
Board Member BERNHART asked i£ the City has ever done this..
on its own, and Mr. Gidley replied normally the Code
Enforcement program is based upon a complaint basis. If we
know the property is in violation, we call. the realtor.
Board Member BERNHART questioned what would staff had done
if they knew beforehand this was an illegal duplex for sale,
and Mr. Gidley answered they would-have contacted the
realtor before the sale and stated in writing that it is a
single family dwelling and should not be marketed as two
family.
CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993 Page 10
Board Member BERNHART commented since there is no
recommendation by staff, what he hears is this is a non-
conforming use and typically staff would have taken action
to see that this did not occur. This leads him to believe
staff would have denied this request for a variance. Mr.
Gidley said the facts in this case do not support there was
an error on the part of administration and in terms of
interpretation, it is in fact a two family dwelling. The
findings under this specific criteria do not support the
request for a variance.
Mr. Shields, in rebuttal, said he believes the evidence
supports there is not even a need for a variance in this
case. There are two approaches in attacking this and one is
from a structure standpoint; a variance to allow a
substandard lot for a duplex use. The only evidence is that --
the structure is what building permit issued by Jefferson
County says it is allowed to be. No evidence has been
presented showing that it has been converted. If the
structure is illegal under the City of Wheat Ridge Zoning
Code, then it is a legal non-conforming use.
Second approach is from the family standpoint. We have
heard testimony that the neighborhood would be better if we
only had related people in this dwelling. The fact is the
law in definition says 'three unrelated people' can live
together in a single family dwelling, and that is precisely
what we have here.' Mr. Shields continued saying they have
met the rules and regulations or are 'grandfathered' in
under the structure approach, and therefore, there is no
need for a variance as to lot area or frontage.
No further questions were asked.
Motion was made by Board Member ABBOTT, seconded by Board
Member ROSSILLON that Case No. WA-92-20, an application by
Theresa L. Shearn, be DENIED for the following reasons:
Sworn testimony was given by adjacent propert.,~ owners and
neighbors stating that:
1. Property values and neighborhood quietude have been
significantly impacted by the illegal conversion to a
two family use.
2. The continuance of this illegal. two family occupancy has
altered the essential character of the locality as it -
was originally conceived by the County as to
neighborhood density.
3. The variance as presented would appear-to be based upon
a desire to make money out of the property.
4. No hard evidence has been presented as to a legal
conversion.. -
CITY- OF WHEAT RIDGE BOARD OF ADJUSTMENT
MINUTES OF MEETING: February 25, 1993 Page 11
Chairman HOWARD added an amendment that the following be
added to the motion:
5. The lot frontage and area required for a duplex are both
25% below the minimum requirements.
Board Members ABBOTT and ROSSILLON accepted the
amendment. Motion for denial carried 4-1, with Chairman
HOWARD voting no. Resolution attached.
Chairman HOWARD called for a five minute recess.
Upon convening, Chairman HOWARD informed the audience one of the
board members had to leave and there would not be a quorum. Any
cases that could not be heard before 10:30 p.m. would have to be
continued until the next meeting.
B. Case No. WA-92-23: An application by Eugene Lucero for
approval of variances to lot width and area as regulated by
Section 26-15(F) to allow a duplex 3n a Residential-Two zone
district. Said property is located at 7245 W. 33rd Avenue.
Sob Gaspar presented the staff report. All-pertinent
documents were entered into record, which Chairman HOWARD
accepted.
Eugene Lucero, 2870 No. Speer Boulevard, Denver, CO, was
sworn in. Mr. Lucero asked the Board for a continuance of
Case No. WA-92-23, due to the length of both cases. Motion
was made by Board Member ABBOTT that Case No. WA-92-23 be
continued until the next regular meeting on March 25, 1993.
Motion carried.
Greg Moberg informed the Board because the remaining cases.
were told they could not be heard tonight, the applicants
have left. Motion was made by Board Member ABBOTT, seconded
by Board Member ROSSILLON, that Case Nos. WA-93-1, WA-93-2,
and WA-93-3 will be heard at a special meeting called for
March 11, 1993. Motion carried.
5. CLOSE THE PUBLIC HEARING
6. OLD BUSINESS
Glen Gidley spoke on Case WA-92-25 presented at the January
28, 1993 meeting. There is new evidence the fence was built
in the City's right-of-way, thus taking it out of the Board
of Adjustment's jurisdiction. All action taken by the Board
is therefore, null and void, Discussion followed.
t r
~ris6~ ~e ~ssociafes
J3ill S'rfs6.y, Jai. f7., J7irecfor
City of ~,Jheat Ridge
P, O. Box 638
7500 West 2gth Avenue
Wheat Ridge, Co, 80033
Re: Case No, Wa-92-20
2/25/93
Planning Division;
As owners of the property in the
approximate location of the particular property in-
volved in the above case, we have no objections to
variance request, Due to prior commitments, we will
be unable to attend the hearing,
~ R.p~G~
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Re~ c t 1 ;
it i
Mary is y
4474 Brett ,
Wheat Ridge, Co, 80033
OWNERS
3305-7 Teller
Wheat Ridge, Co, 80033
P.O. 80X 638 TELEPHONE: 303/237.6944 ThB Cif y Of{.
7500 WEST 29TH AVENUE WHEAT RIDGE, COLORADO 80033 [,j~ Trleal
Ridge
-- ~ v ~:~
January 20, 1993
This is to inform you that Case No. WA-92-20 which is_ a request
for approval of variances to lot width and area as regulated by Section
26-15 (F) to allow a duplex in a Residential-Two zone district.
far property located at - ~ `~nue "3
wii3 be heard by the Wheat Ridge DOARD OF ADJUSTMENT in the
Council Chambers of the Municipal Complex, 7500 West 29th Avenue
at 7:50 P.M. on ~~~,~'
All .owners and/or their legal counsel of the parcel under
consideration must be present at this hearing before the BOARD OF
ADJUSTMENT.
As an area resident or interested party, you have the right to
attend this Public Hearing and/or submit written comments.
It shall be the a ~ icant's res onsi bilit^ '-^ '- • f an-- other
pp- P s .,.~ no..~ y Y
persons whose presence is desired at this meeting.
If you have any questions or desire to review any plans, please
contact the Planning Division. Thank you.
PLANNING DIVISION
i
r
"The' C~cr•nation City"
~~.`~'
PETITION
-~~TURY~ - --
We the une~3'ersigned petitioners residing in the~ty of Wheat Ridge, wish
to mice our objections regarding the furtherfff///occupation of two family
dwellings and non-conforming duplexes in the 33rd and Vance Subdivision.
fIONE OWNER ADDRESS
1.
2.
3. ~'lV L{iy/j~.~/~ x.i i
4
5
6
s.
9.
10.
11.
12.
13.
14.
15.
.~ ~ ~
~ilJ. ~ .~!`~
1,~,,~,~~ - (~het1~1~
~~ ~a~r~~ ~ . ~JDRTL,tn1 '7 2. ~ g 1~c1- 3 3_~-/~ ~~
~~
City of Wheat &idgo
Att~us Code ~aforcement Officer, xobert f3aspar
P. o. Box 638
heat fridge, Co 80o3h-0638
To those coneernedt
~~TJ OF VVNEAT R1DG~
,~,~n! ~.~tL~
;:~~~FEB 091993
i
~~~~
p~.ANNiNG & DEVELOPMENT
This letter is is protest of the varianco aotioes posted at
the vicinity of N. 33rd Avernao at Teller Street indicated
as nano Ro. WA 4?20 and WA 92 23 xhich reveals that applications
stave been made for setting asido the cede for the limitations
ascribed to single family dwellings.
There seems to be a refilatiox of violations of the Dods
sad it is quits vis~~e that there are nultiplo families tk~a.t
are residins in these dwellin;s. This situation 'has been refered
to is Robert t~aapar~s letter is Hob Niddaugk as of September 11, 1992.
Six properties are refered to.
This situation has come upon us quite insidiously and became knows
enlr recently as xe have observed a significant increase is adult
traffis around these houses ~d an incrdase in the number of
auto vehicles. This is over-population of our communitr,ald a croxding
of sehicles into the limited spacoes mf these small lots• A general
deterioration is taking place of what was suss a xell kepi neigh-
borhood. This over-loading, moreover, has resulted ira abrasive
behavior of some residents of these dwelli.nga. (Aa police files
will probably reveal)
Teo residential codes xere designed many years ago to reasonably
present over-population sf people and rehicl®s,
If it is is fact true that sellers of properties are leading
buyers of these properties to believe that they are buying
income property in whick the ground floor, and the basements
are rented as duplex apartments, this practise is unFsis
and a misrepreaentatioa. Such practice 3a a deliberate scoffin=
at the code.
IIaving lived in our home for 39 years xe resent xhat is happening
to our neighborhood. The deterioration that accompanies violations
of the codes is a main factor that contributes to depseciatiox of
property values., Ne depend on the department of Code Fhforoement
to protest our neighborhood communities. Property oxners should
conform to the code that has made this an ideal community ix
which to live.
. an lira. F. Wo ward
72b~ W. 32 Place
February b, 1993
PUBLIC HEARING SPEAKERS' LIST
r
,~L~ IN
u
~~
, ,
,
CASE N6• WA-92-2• DATE• February 25, 1993
REQUEST: An application by Teresa L. Shearn for approval of variances to lot width
and area as regulated by Section 26-15(F) to allow a duplex in a Residential-Two
zdne district. Said property is located at 7235 W. 33rd Avenue.
Position ®n Request;
(Please Check)
~ SPEAKER'S NAME & ADDRESS (PLEASE PRINT) i IN FAVOR ~ ®PPOSED ,
~ - '` '- 7aoo w 3s ' °' ~V~ ~ X
~ ~~~ ~ ~ ,
., .,,,"
CERTIFICATE OF RESOLUTION
I, Mary Lou Chapla, Secretary to the City of Wheat Ridge Board of
Adjustment, do hereby certify that the following Resolution was
duly adopted in the City of Wheat Ridge, County of Jefferson,
State of Colorado, on the 25th day of February 1993.
CASE NO: WA-92-20
APPLICANT'S NAME: Theresa L. Shearn _..
LOCATION: 7235 West 33rd Avenue
Upon motion by Board Member ABBOTT seconded by BOard Member
ROSSILLON the following Resolution was stated.
WHEREAS, the applicant was denied permission by an Administrative
Officer; and
WHEREAS, Board of Adjustment Application, Case No. WA-92-20
is an appeal to this Board from the decision of an Administrative
Officer; -and
WHEREAS, the property has been posted the required 15 days by law
and there WERE protests registered against it; and
WHEREAS, the relief applied for MAY NOT be granted without
detriment to the public welfare and without substantially
impairing the intent and purpose o£ the regulations governing the
City of Wheat Ridge.
NOW, THEREFORE, BE IT RESOLVED that Board of Adjustment
Application Case No. WA-42-20 be and hereby is DENIED.
TYPE OF VARIANCE: To the minimum lot frontage and area required
for a duplex in a Residential-Two zone
distjrict.
PURPOSE: To allow a duplex
FOR THE FOLLOWING REASONS:
Sworn testimony was given by adjacent property owners and
neighbors stating that:
1. Property values and neighborhood quietude have been
significantly impacted by the illegal conversion to a two
family use.
2. The continuance of this illegal two family occupancy has
altered-the essential character of the locality as it was
originally conceived by the County as to neighborhood
density.
3. The variance as presented would appear to be based upon a
desire to make money out of the property.
4. No hard evidence has been presented as to a legal-
conversion.
5. The iot frontage and-area required for a duplex are both
25& below the minimum requirements.
VOTE: YES: Abbott, Albertsen, Bernhart and Rossillon
NO: Howard
DISPOSITION: Variance denied by a vote of 4-1.
DATED this 25th day of February, 1993.
ROBERT HOWARD, Chairman Ma L u C apla; Sec etary
Board of Adjustment Board o Adjustment
P,P2- 7=93 WED 10:56
John H. Hayes
Herbert C. Phillips
Jams 9. Maloney
HAVES PHILLIPS MALOI~Y FAX N0. 3038251269
HAYF.S, PSTLLIPS &)VTAI,QNEY, P.C.
Attorneys at Law
Suite 450, The Market Ceuter
1350 Seventeenth Strrxt
Denver, Colorado 80202-1517
(303) 835-6444
Trlecopier: (303) 825-1269
r 7 ~
P. 01
M. Stuan Lombardi
Scou w. Smith
Of CouoseS
Kathleen S. Haddock
NO. OF PAGES (inch i;his cover sheet}: _„ ,~
OUR TEJ+ECOPY NUMBER: 825-1269 i
TRANSMITTING T0:
IF YOU HAVE ANY PROBLEMS, PLEASE CONTACT
AT 825-6444.
r
DATE:
T0:
FROM'
CONFlDF1VTlALIT yNOTICE
This facsimile transmission and any accampanyincq( documents contain information
belonging to the sender which may be cortflUenBal and legally privileged. 77~is
lnlormatton is intended only for the use al the Individual or entity to whom this facsimile
transmission was sent as indlcared above. !f you are not the intended recipient, any
dlsdosure, copying, distdbutlon, or acBon taken in reliance o oh ked i!f ou have
Information contained In th/s facsimile twannsmisslon is strtcNy p Y
recerl+ed this trdrtsmisslon in error, please call us collect to arrange for the return of
the documents to us ar our expense. Thank you.
k`
.
t
APR- 7-93 WED 10:57 HAYES PHILLIPS MALONEY FAH N0. 3038251269 P. 02
_ ~~~
~~
attorneya at law a professional corporation
.,i ct:•n G. Aualin
April 6, 1993
John fiayes
Hayes, Phillips & Maloney, P.C.
1350 17th Street
SU7.te $450
Denver, CO 80202-1517
RE: srioarn v. Wheat Ridge Board of Adjustment
Dear John:
unclosed please find a copy of the summons, i;ompial++~ aixd
Motion and Order to Show Cause in the shove-referenced case. Y dm
also enclosing, per our agreement, a waiver of service on the City
and the Board of Adjustment.
It is my understanding that you will sign the waiver of
service and return it to me for filing in the District court.
Thank you for your cooperation in that regard. .
if you need additional time to prepare the record due to the
one week delay i.n getting service on the City, 1 will certainly
stipulate to same. Please let me know when the City has some
estimate of the cost of the preparation of the record so that Z can
get the money from my client.
Sincerely,
a
1
G. E. SHIELDS, P. C.
By:~ m ~
G. E. Shields
suite e-4g0, 12600 west Colfax ave., denver, co. 80215
,.V,...,o r~an~~ ~:~:~-~1~31,1
fP8- '1-93 41ED 10:58
HAYES PHILLIPS NALONEY FAX N0. 3038251269 P, 03
.., z .. ~:
3 '
LrU
•n417uRCf11J COUNTY. ,COLORADO
DISTRIC'fCOU~TnAiti DidCtRm.3DZ.--
CASH NO. ~.~..------
SUiy[MON9 -
TERESA SHEARLI ACID RVEI.YN WL+ST BIB]i v. CITY OF WHItAT RIDGB, a 2tuoicipal Corp.
of the State of Colorado and Board o£ Adj-
Plaintiff usttoent o£ the City o£ Wheat RidgHefendaat
Toe People of the State of Colorado
To We Defendant(s) qam~ above:
You are summoned aad required to fde with the clerk of this court an Gnawer or other response to the attached
complaint tvi[hin twenty (20) days after this summons is served an you in the State otColorado, or within thirty
(30) days after this summons is served oa you outside the Butte of Colorado.
If you FaU to flle your answer or other response to the complaiat in wadttg within the applicable time: period,
judgment by default may be entered against you by the court for the relief demanded in the complaint, wlthoue
any further notice to you,
The foQowiag documents are also served with [his sutnmona:
G. $. SRTELDS, P.rC.
naea• 2 /9~3 axt .y~y~.y~~~.Y~.~eya.'vmmaweo-uaeWrrl,n~tCCeen
• G. F.. $Fl1Iril.lllp~itfiiJLMmca mx: N,m.. darcrs, W. i. rca, f kVR.
12600 W. Colfax Avenue. C-460
Lakewood, CO 80215
(303) 431-500fi
This aummona is Issued pursuant to Rule 4, C&CP, as amended.
A eopY o[ the complaint mast he served with this sttmmom.
1tETURPI OF SERVICH
State of
County of
I declare tinder oath that I served this summons and a copy of the comptaim in this case an
in ~.~---- County
• ac. at the followin8 location;
on '"~
. ~ ~ ,
^ by handing it to s person identified to me as Ute defeadam.
^ by leaving it with the de_fend_ ant who refused service. , . designated to receive service far the defendant. ,
^ by leaving is with ~ •.'
O I sin over the age of•18 Yeats and aln,mt interested in nor a party to this cast.
^ I attempted to serve the defendant on _:~-- °~100s but have net bean able to locate the defendant.
Kelton !o the plalmiff Is mado on, ~ .. ^ •,, . ' •' •
' ~ ":..m before ma~ihfa ~~'~`; "~. r, ~' day `" ~' 19 ~-
Subscribed aadtwora ~ of
in ... . ' `:;, : xCowug State of ... Date
. Notary Pubiic• .. ^ Private pmsess server ' .~ .
• ~ Sheriff, County
, .. _. ..
' Service S .
. . Milenge 5
•lfalary rlauW include addrest a1d ~pQstioa due d cammWtaa.
d•
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.y
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t'l0. ~S~ qGY, ~. SOM1rnNa 1t7 (:tYIL M:+~ '
[R+etam vat+Wl.a, t7uwasa&., Dm.4ea apa~~(ra11:927600•-11-x9
fPk- 7-93 WED 10;58 HAYES PHILLIPS MALONEY FAX H0. 3038251269 P. 04
DISTRICT COURT, COUNTICt~O,F,
Case No~'7 A l!/"p~~~
COMPLAINT
, STATE OF COLORADO
TERE~A SFTEA$1S AND I;VELXN WEST BIBB,
c 1 t-
::.Plaii3~~ff8,
_ ~} y,,_ .
V. ~ is lr..
CZTY~,`•OF~-WHEAT RIDGE, a Municipal Corporation of the State of
Colo~ado ~~?Board of Adjustment of trie City oP Wheat Ridge,
rOefendari1ts.
Plaintiffs, £or their complaint against the Defendants, allege
and complain as follows:
CERTIFICATION OF EXEMPTION FROM MANDATORY ARBITRATION
subject to the sanotions of c.R.c.P. ii, the Plaintiff claims
to be exempt from mandatory arbitration on the basis that this is
an action or claim against a public entity which is not subject to
mandatory arbitration as stated in C.R.C.P. 109.1 (a) and may not
exceed $50,000.00 exclusive of interest and casts.
PRELIMINARY ALLEGATIONS
1} Plaintitls, Shearn and Bibb are the owners of property known
and numbered as 7235 w. 33RD avenue, County of Jefferson, state of
Colorado which is the subject of this action and will hereinafter
be referred to as the "property."
2) Defendant, City of Wheat Ridge, is a municipal corporation
organi2ed and operating under the laws of the state of Colorado.
3) Defendant, Board of Adjustment of the City of Wheat Ridge, is
an inferior tribunal within the municipal corporation, City of
Wheat Ridge, which tribunal possesses ordinance-created powers and
has jurisdiction over variances to zoning ordinances within the
city of Wheat Ridge.
FIRST CLAIM FOR RELIEF
{C.R.C.P. 106 (a){4) claim against city of Wheat Ridge)
4) The subjeot. ProPe~Y was at all pertinent times zoned
residential-two distxict (R-2).
5) Representatives of the city of Wheat Ridge sent a letter to
I
EPR- 7-93 WED 10:59 HAYES PHILLIPS MALOf~Y FAX N0. 3038251269
P, 05
Plaintiffs dated September 10, 1992 stating that ,a~hasemoreuthan
onetfamilyjliving on therpremisesthat the property
6) The letter Further alleged that according to Wheat Ridge and
Jefferson County records the "property is zoned for a single family
oocupanay."
7) Tlie letter concluded, "therefore, the two-family use of the
property is a violation of Wheat Ridge code o attached he eto for
14, Residential two district regulations (dopy
your refarnnce)."
g) The letter further explained that the violation was because
"any lot in a residential two zone district must have a minimum lot
area 12,500 square feet and a minimum width of 100 feet before the
lot may bg used as a two-family dwelling."
g) The letter then alleged that the subject property had
insufficient lot area and lot frontage to meet the requirements far
a two-family dwelling.
10) The letter concluded by stating that the subject property must
within 30 days of the d tea of the 3lotice eat Ridge municipal code
il) After contacting the city o£ Wheat, Ridge, the city explained
that people with political ties in the nnigtlborhood had complained
to a certain city councilman and that the city councilman requested
an investigation of the entire neighborhood, that a substantial
portion of the homes in the neighborhood were being used a two
family dwellings in violation of the city£ rna variancnntotthe lot
city was asking all such people to aPP1Y
frontage requirement and the lot area requirements of the code
through the city board of adjustment.
12) The Plaintiffs filled out the application for the variance
and a hearing Was scheduled before the board o£ adjustment for
February 25, 1993.
13 ) Tria y5 rd1993 $ denying the r request d variance' s ineCSpite aY
February
uncontroverted evidence that: eriod
a. The home on the subject property was built in the p
1953 to 1954 while a part of unincorporated Jefferson County,
Colorado.
b. The city of Wheat Ridge was not incorpermit fortboth9the
a. Jefferson County issued the building p
subject sof Wheat R dgelto applyx £or as variance also required by
the city
builtdby thetsame builder t one structuredafter the other.aor were
f,PR- 7-93 WED 10;58 HAYES PHILLIPS MALONEY FAX H0. 3038251269 P. O6
e. Bath were built as two family structures; one family with
cooking and living quarters upstairs and one family with cooking
and living quarters in the basement.
entranaes.BoTthleresis no inside st irway coxnnectinge'pt'.heatwo utside
g• According to the testimony of witnesses with firsthand
knowledge, the living quarters downstairs were intended for a
"mother-in-law" apartment. The building permit allowed the second
living quarters downstairs, the structure was inspected by the
Jefferson County Building Aepartment and approved for the two
family concept and has becn used by two families since it was
built.
h. Although owners and tenants have painted, repaired and
replaced cosmetic items, there is no evidence that anyone has ever
altered the original structure as built in 1953-54.
i. At all times pertinent to this case, the subject property
has been occupied and continues to be occupied by three people.
A lady and ne~ elaYh. ~ r~ay6ve upstairs and the downstairs is
occupied by
14) Contrary to the Board of Adjustment resolution denying the
requested variance, the decision is not supported by the evidence
in the record, it is contrary to the city of Wheat Ridge Zoning
ordinances and the common law of Colorado, the decision is not in
the interest of the health, safety and welfare or the public good,
constitutes an arbitrary and capricious decision based on political
• authority granted to the board of adjustment, and in excess of the
1S) As just one example of the arbitrary nature of the decision,
the board was advised by its own staff on tue osesaof the Wheat
ordinance definition of a "single-family for p rp
Ridge Zoning ordinance is 1-3 unrelated people occupying the same
dwelling. The undisputed evidence in this case was that there are
two people ocoupying the upstairs and one unrelated person
occupying the downstairs for a total of 3 people in the dwelling.
Clearly under Wheat Ridge's own ordinance, the dwelling is
presently occupied by a single family. Xet the board of adjustment
in its finding number two states:
"2. The continuance of this illegal two family occupancy
• has altered the essential character of the local sy to
iL was vriyinally oonacivcd by the c0u11tY
neighborhood density."
16) Based on the evidence in the record no variance to the area
and frontage requirements for a two-family ocoupancy is necessary.
Thus, find compleutely superfluoushand irrelevant tohthis Casepl~
occupancy,
FPR- 7-93 WED 11 00 HAYES PHILLIPS NALOI~Y FAX N0. 3038251269 P. 07
17) The subject property was when inspected by Wheat Ridga
authorities and continues to be at present in full compliance with
the Frheat,Ridge zoning ordinance.
18) The initial determination by Wheat Ridge authorities that
there was a zoning vielatiari in the first instance was wrong and
not supported by the Wheat Ridge zoning ordinanoes themselves.
WIiEREFORE, Plaintiff's pray for 'the following relief:
a. The 4ourt find and declare that the Defendants, Board of
Adjustment of the city of Wheat Ridga and the oity of Wheat Ridge,
acted arbitrarily, capriciously, and in excess of their
jurisdiction and authority and abused their discretion in bringing
denialloPethairequestedfvarianceabeforeethenboardrofnadjustmenthe
b. The court reverse the action of the defendant, board of
adjustment of the city of wheat Ridge and void the resolution
denying the variance requested.
c. Reasonable attorney fees and court costs required fn pursuing
this action, plus interest at the highest legal rata permissible
on the entire judgment and for such other and further relief as the
court deems proper based on a finding that the actions of the City
of Wheat Ridge in forcing Plaintiffs into this action Were
frivolous and groundless.
Respectfully submitted,
G.E. SHIET,DS, P.C.
$Y~
G.E. Sh~~ X2370
Attorney for Plaintiffs
12600 W. Colfax Avenue
Suite C-460
Iakewood, CO 80215
(303) 431-5006
Plaintiff's address
Teresa Shearn
977 Red Oak Circle
Newport News, VA 23602
APR- 7-93 41ED 11:01 HAVES PHILLIPS MALONEY FAX N0. 3038251269 P. 08
DISTRICT COURT, COUNTY OF JEFE'ERSON, STATE OF COLORADO
MOTION AND ORDER REQUIRING CERTIFICATION OF RECORD
TERESA $F3EARN AND EVELYN W&ST AIBSr
Plaintiffs,
v.
Colorado and8o ad of~ Adjustor®nt aof the Cityiof Whea~Ridge to of
D®fendants. .
COME NOw the Plaintiffs, by and through counsel, G. E.
Shields, P.C., and moves this honorable court for an order
requiring certification of the record in the variance case relating
to the property which is the subject of this action and as grounds
fox said motion, ptatpR:
1. A complaint was filed on Marcri 2lication case ritunberrWA~92-20
the record in board of adjustment app
pursuant to C.R.C.P. 106 (a)(4).
WHEREFORE, plaintiffs pray for an order of court requiring the
certifioation o£ th® record in board of adjustment application case
number WA-92-20 to the•c0urt on specified a date together with a
certificate of authenticity.
Respectfully submitted,
G.E. SHIELDS, P.C.
i •
i /~
S G.E. §hiel$s, #2370
~ .. Attorney for Plaintiffs
12600 W. Colfax Avenue
Suite C-460
~ Lakewood, CO 80215
(303} 431-5006
I
-APR- 7-93 NED 11;01 HAYES PHILLIPS MALOI~Y FAX N0. 3038251269 P. 09
' ~ iu..r -. 9f,. ...
.i.:: .~..u?.
1..~~,
ORDER ~~+•~•~ Z 8 ~99
THIS MATTED carving before the court on Plaintif£s'~#~,ti.Al?ifor 3
Certification of Record in the variance case desoril~in #.he....,.,~
complaint in this action, the court having read said mot , n9..•.,_,,,r`
examined the file and now deeming itself fully advised,
motion 'and orders the city of Wheat Ridge and the Board of
Adjustment of the city of WSseat Ridge to Certify to this court: the
record in board of adjustment application case number WA-92-20
toget' er with a certificate of authenticity on or~~efgre t~i~ ~~~%
ff'1 day of 4~ ~ 1993. c-,-~C• p~f •
~r-,C'L'C~ ,~G~ ~X?~''y'~' `ia,/~GY//~ S~ ~ DAY OF~NI~
Q~ SIGNED IN OPEN.//C T TSI9 ~.~ , .
/~(jrf ~~_, 1993. ~ea."--:.tnS° f"'(54~~i~
MAR ~ 9 1x93
BY THE COURT: {;1},d'~•l`,
t;~a~.~''~'d/~;.cctnrv~,'J'.~~Spp4~yyi~~ ~'
.• ~stri Count Judge
~~~RT so LU~'c'd~~` ~Y /
a15~'PtG~,~°n,G°G3Y c. ,t
. G°untY °tk !t tr~9 ar- ~~s.c •f
• ~¢o ~g { ' l in n~Y i
Ge~il~iley file OC'•ytr` c~s;ts~`s' ~ ,~
C~i~T'•~VV_+RTE9fAFA„~t4?'IGaf;hlE ~' `''
~?K'J ~ ° eM~T >So-r kf:OiVp &:G{5563
this ~
~~ l
priau+~~
~;
,+~ ,
CITY OF WHEAT RIDGE PLANNING DIVISION
STAFF REPORT
TO: BOARD OF ADJUSTMENT
Date Prepared: January 8, 1993
Date of Meeting: January 28, 1993 Case Manager: Robert Gaspar
Case No. & Name: WA-92-20/SHEARN
Action Requested: Variance to minimum lot frontage and area
required for a duplex in a Residential-Two zone district.
Location of Request: 7235 West 33rd Avenue
Name & Address of Applicant(s): Theresa L. Shearn
977 Red Oak Circle
Newport News, VA 23602
Name & Address of Owner(s): Theresa L. Shearn Evelyn Bibb
977 Red Oak Circle '6207 W. 75th
Newport News, VA 23602 Arvada, CO
Approximate Area: 9375 square feet
Present Zoning: Residential-Two
Present Land Use: Duplex
Surrounding Zoning: N, S, E, & W: Residential-Two
Surrounding Land Use: N: Multiple-family, S, E & W: Duplex
----------------------------------------------------------
Date Published: January 14, 1993
Date to be Posted: January 14, 1993
Date Legal Notices Sent
Agency Check List
Related Correspondence
ENTER INTO RECORD:
( ) Comprehensive Plan
January 14, 1992
(' ) Attached
( ) Attached
---------------
(XX) Not Required
(XX) None
-----------------
(XX) Case File & Packet Materials
(XX) Zoning Ordinance (XX) Slides.
( ) Subdivision Regulations (XX) Exhibits
( ) Other
--------------------------------------------------------
JURISDICTION
The property is within the City of Wheat Ridge, and all
notification and posting requirements have been met, therefore
there is jurisdiction to hear this case.
CITY OF WHEAT RIDGE PLANNING DIVISION
STAFF REPORT
I. REQUEST
The applicant is requesting approval of a twenty five (25') foot
variance to the required one hundred (100') foot minimum lot
frontage, and approval of-a 3125 square foot allowance to the
required 12,500 square foot minimum lot size to allow a duplex in
a R-2 Zone District.
II. SITE
The subject site was originally built as a single family
residence. At the time of construction, there was free access to
all areas of residence and was occupied by a single family.
The property was susequently converted to a two family rental.
The residence conversion was completed without the knowledge or
permission of the City of Wheat Ridge. The property again sold
in 1475 to the current owner.
III. FINDINGS OF FACT
1. Can the property in question yield a reasonable return in
use, service or income if permitted to be used only under
the conditions allowed by the regulations for the district
in which it is located?
The property was originally built as a single family
residence and therefore would .yield a reasonable return in
use, service or income under the conditions o£ the. Code; and
2.
3.
Is the plight of the owner due to unique circumstances?
This property is under the same constraints as other all
properties,in the R-2 District and is_therefore not due to
unique circumstances; and
If the variation were granted, would it alter the essential.
character of the locality?
It will probably not alter the essential character of the.
neighborhood as there are legally existing duplexes adjacent
to the property and in the neighborhood. However, the
allowance of the variation may effect street parking,
traffic, utility usage and added density; and
4. Are there any particular physical surroundings, shape or
topographical conditions o£ the property involved that would
result in a particular hardship?
No; and
5. Are the conditions upon which the petition for a variation
is based applicable, generally, to the other property within
the same zoning classification?
Yes. However, the variation would not be precedent setting
as similar variations have occurred in the-past; and
6. Is the purpose of the variation based exclusively upon a
desire to make more money out of the property?
The property is currently marketed as a rental and is not
owner occupied, therefore, the appearance o£ a profit factor
is evident; and
7. Has the alleged difficulty or hardship been created by any
person presently having an interest in the property?
The current owner apparently purchased the property as a
two-family rental. Although the owner did not originally
create the difficulty, it was continued by the owner and
therefore may be said to have been created by the owner; and
8. Will the granting of the variation be detrimental to the
public welfare or injurious to other property or
improvements in the neighborhood in which the property is
located?
The granting of this variance will increase the number of
duplexes in the neighborhood. However, the use of the
property as a duplex has existed for many years; and
9. Will the proposed variation impair the adequate supply of
light and air to adjacent property or substantially increase
the congestion in the public streets or .increase the danger
of'£ire or endanger the public safety and substantially
diminish or impair property values within the neighborhood?
The granting of this variance will not impair the air or
light supply to adjacent properties or substantially
• increase congestion, fire danger or endanger public safety
or impair property values.
IV. CONCLUSIONS AND RECOMMENDATIONS
A conclusion or recommendation will not be made by staff on this
application so as not to predicate any prejudice for possible
future court hearings.
YK 34TH AVE.
W.~ 33RD AVE.
_____ W. 32ND AVE.
t 4
COLORADO COURT OF APPEALS
No. 93CA2142
Teresa Shearn,
February 9, 1995
NOT SELECTED FOR PUBLICATION
Plaintiff-Appellant,
v.
City of Wheat Ridge, a municipal corporation of the State of
Colorado and the Board of Adjustment of the City of Wheat Ridge,
Defendants-Appellees.
Appeal from the District Court of Jefferson County
Honorable James D. Zimmerman, Judge
No. 93CV617
Division I - JUDGMENT AFFIRMED
Opinion by JUDGE KAPELKE
Metzger and Criswell, JJ., concur
-. -,
G.E. Shields, P.C., G.E. Shields, Golden, Colorado, for
Plaintiff-Appellant
Kathryn L. Schroeder, Wheat Ridge City Attorney, Denver,
Colorado, for Defendants-Appellees
~~
h
Plaintiff, Teresa Shearn, seeks review of the district court
judgment affirming the decision of the defendants, the City of
Wheat Ridge and its Board of Adjustment, denying her application
for a_zoning variance. We affirm.
Plaintiff applied for a zoning variance after having
received notice from the City that a property she owned was being
used as a duplex in violation of the zoning ordinance. A public
hearing was held before the Board on the variance application.
The Board denied the application and found that the property had
been converted from a single-family home to a duplex in violation
of the applicable zoning regulations. In addition, the Board
found that the requested. variance should be denied because of the
size and frontage of the property and because the maintenance of
a two-family residence had adversely affected the character of
the neighborhood.
Plaintiff sought judicial review pursuant to C.R.C.P.
106(a)(4). The trial court affirmed the denial, finding that the
defendants' decision was supported by competent evidence.
I.
Plaintiff first contends that the property was at all times
in full compliance with the zoning ordinance and that the City
was mistaken in claiming that it was being used as a two-family
dwelling. We disagree.
C.R.C.P. 106(a)(4} authorizes a district court to grant
relief from the decision of a local judicial or quasi-judicial. - --
tribunal only in those instances in which the tribunal "has
-1-
r
exceeded its jurisdiction or abused its discretion. ." The
locaLtribunal's decision must be approved unless it is so devoid
of evidentiary support that it can only be explained as an
arbitrary and capricious exercise of power. Platte River
Environmental Conservation Organization Inc. v. National Hoc?
Farms. Inc., 804 P.2d 290 (Colo. App. 1990).
The weighing of evidence and the determinations of fact are
functions of the zoning board and are not matters for
consideration by the reviewing court. Coleman v. Gormlev, 748 'i
P.2d 361 (Colo. App. 1987).
In urging her contention that the property was in compliance
with the zoning ordinance, plaintiff relies on language in the
ordinance defining "family" to include a group of three or fewer
unrelated persons. The definition is not as broad as plaintiff
contends, however... Wheat Ridge Municipal Code §26-5 provides in
pertinent part as follows:
Familv. One (1) or more persons related by
blood, marriage or adoption or_a-group
of not more-than three (3) persons who need
not be so related living together as a single
housekeeping unit ,,_ _(emphasis added)
It is undisputed that the mother and daughter who were
residing in the main floor .unit at the time of the variance
proceeding were unrelated to the man who lived in the separate
basement unit. Since they were not "living together as a single
housekeeping unit," the three residents cannot be considered a
single family under the definition in the ordinance.
-2-
Y
a
Accordingly, we conclude that the property was being used as
a two-family dwelling. As plaintiff concedes, the lot size and
frontage of the property are insufficient to permit a two-family
use under the zoning ordinance. Thus, there was a zoning
violation and plaintiff was required either to cease the two-
family use or obtain a variance.
II.
Plaintiff next contends that the trial court erred in
affirming the decision of the Board because there was no evidence
that the property had been converted from single-family to duplex
use, and there was no competent evidence generally to support the
Board's findings. We again disagree.
As discussed above, there was sufficient evidence in the
record to support the determination that the property was being
used as a duplex, and not as a conforming single-family home.
Indeed, plaintiff's own witness, a part-owner of the property,
testified that the property had been used as a duplex since 1978.
See §31-23-308, C.R.S. (1986 Repl. Vol. 12B) (use of a property
not in compliance with zoning requirements entitles the
municipality to prevent. such unlawful use).
There was also record support for the determination that use
of .the property as a duplex could not be grandfathered in as a
"legal, non-conforming" use because the change to a two-family
use occurred in 1978, long after the 1969 enactment of the
ordinance prohibiting the use of the ,property as a duplex.
Before 1978, when plaintiff acquired the property, both units had
-3-
..
been occupied by related persons who would fall within the
ordinance's definition of a single family.
While plaintiff argues that there_was no competent evidence
that the property was ever "structurally converted" from a one-
family to a two-family use, the change in use alone demonstrated
the zoning violation, and no proof of a physical alteration of
the property was required.
Moreover, while plaintiff asserts that the Board improperly
relied oR unsworn hearsay testimony of a city staff member
concerning the change in use, plaintiff did not object to the
testimony at the time of the hearing. See CRE 103(a)(1)(error
may not be predicated on the admission of evidence unless the
party alerted the tribunal to the alleged error by raising a
timely and specific objection); Hancock v. Department of Revenue,
758 P.2d 1372 (Colo. 1988). See also Monte Vista Professional
Building Inc. v. City of Monte Vista, 35 Colo. App. 235, 531
P.2d 400 (1975) (in the absence of statutory requirement, it is
not error for an administrative body to hear testimony from
unsworn witnesses).
Finally, there was also competent evidence in the record to
support the Board's findings that the use of the property as a
duplex had some adverse effects on the character of the
neighborhood.
Plaintiff has not demonstrated that the Board abused its
discre-tion or exceeded its jurisdiction, and the Board's decision
-4-
r •..
r
is not so devoid of evidentiary support as to constitute an
arbitrary and capricious exercise of power.
Therefore, the trial. court properly upheld the Board's
determination. Platte River Environmental Conservation
Organization Inc v National Hoo Farms, Inc., supra.
Judgment affirmed.
JUDGE METZGER and JUDGE CRISWELL concur.
-5-