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HomeMy WebLinkAbout09/26/2007 ORIGINAL CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT Minutes of Meeting September 26, 2007 1. CALL THE MEETING TO ORDER The regular meeting of the Wheat Ridge Board of Adjustment was called to order by Chair BLAIR at 7:06 p.m. in the City Council Chambers of the Municipal Building, 7500 West 29th Avenue, Wheat Ridge, Colorado. 2. ROLL CALL Board Members Present: Tom Abbott Janet Bell Bob Blair Alan Bucknam Paul Hovland Bob Howard Larry Linker Betty J 0 Page Staff Members Present: Travis Crane, Planner II Debra Kalish, City Attorney Ann Lazzeri, Secretary 3. PUBLIC FORUM No one wished to address the Board at this time. 4. PUBLIC HEARINGS A. Case No. WA-07-13: An application filed by James St. John for an interpretation of a non-profit day spa for cancer patients as a similar use to a residential group home as defined by Section 26-123 of the Wheat Ridge Code of Laws relating to property located at 3405 Flower Street. The case was presented by Travis Crane. He entered all pertinent documents into the record and advised the Board there was jurisdiction to hear the case. He reviewed the staff report and digital presentation. The applicant is requesting an interpretation ofthe Zoning Code. Section 26-204 of the city code provides the ability for the Community Development Director to interpret the Code. On February 8, 2007, the Director of Community Development made a determination that the subject use was similar in nature and less intensive than a residential group home for eight or fewer elderly persons (an allowed use in the R-IA zone district) and that the number of cars generated by this type of operation would be Board of Adjustment Minutes September 26, 2007 -1- less than that generated by a residential group home. Based upon information provided by the operator of MY House, along with its investigation of this case, staff has concluded that the use will not have a substantial impact on the surrounding neighborhood and the original determination made on February 8, 2007 should be upheld. In response to a question from Board Member ABBOTT, Mr. Crane stated that he did not believe MY House, a nonprofit entity, is a business. Board Member BELL commented that a single family residence would generate more trips than MY House is expected to produce. Mr. Crane agreed and commented that a single family residence would produce more trips on a weekend. James E. St. John 3480 Everett Street Mr. St. John, the applicant in this case, was sworn in by Chair BLAIR. He submitted the following documents into the record: . Copy ofMr. St. John's comments to the Board . Two maps of neighborhood and aerial view of the subject property . Copy of a portion of Section 26-123 of the City Code. . Copies of a portion of Section 26-204 and a portion of Section 26-216 of the City Code. Copies were provided for each Board member. He argued that a day spa is not similar to any category of a residential group home. This use establishes a commercial and industrial use in a residential R-IA zone and should not be allowed. In response to a question from Board Member BLAIR, Mr. St. John stated that he lives across the lake from the subject property and his house would not be affected by MY House traffic. However, he was concerned for the neighbors who lived closer to the subject property. He also stated his belief that MY House will lower property values in the neighborhood. Board Member ABBOTT asked when the aerial photo ofthe subject property showing cars parked in the driveway and submitted by Mr. St. John was taken. Mr. Crane stated that the photo was provided by DRCOG and was taken in the spring of2006 before MY House was established. Board Member asked if the lake association functioned as a homeowners association. Mr. St. John stated that it was not a homeowners association but was related only to the lake. Board of Adjustment Minutes September 26, 2007 -2- Board Member BELL asked Mr. St. John how MY House differs from a single family house. Mr. St. John stated that people visiting MY House are strangers and do not know the streets and families in the neighborhood. Board Member BELL commented that she didn't see how the situation at MY House would be any different than any residence that has visitors. Further, there would be no visitors in the evening or on weekends. Mr. St. John stated that he would prefer to see residents of the subj ect property who would spend the night there and who would form life-long friendships with neighbors. Board Member LINKER asked ifthere have been traffic problems associated with MY House in the past. Mr. St. John replied that the problem is that the neighbors have no control how many people will be coming to MY House. Board Member PAGE asked ifthere are any regulations pertaining to the location of nonprofits within the city. Mr. Crane stated that there are no such regulations. Board Member BUCKNAM asked ifthere had been any police reports related to traffic problems associated with MY House. Mr. Crane stated there have been no reported traffic incidents. There has been one civil incident. In response to questions from Board Member ABBOTT, Mr. Crane stated that a home-based day spa business is an allowed home occupation. The subject nonprofit use is not considered to be a business. Debra Kalish stated that MY House is not considered a business because it is by invitation only through referrals from hospitals and clinics for women who are being treated for cancer. Jodelene Walter 3405 Flower Street 14124 West 21 st Place, Golden Ms. Walter, operator of MY House was sworn in by Chair BLAIR. She submitted the following document into the record: . Booklet containing a copy of Ms. Walter's presentation to the Board on 9-26- 07 as well as background information on MY House. A copy was provided to each Board member. Ms. Walter stated that she conducted a neighborhood meeting in an attempt to be a good neighbor. She also hosted an open house and a number ofresidents chose not to attend. She showed a DVD from two episodes hosted by Kim Christensen on Channel 9 news. The videos explained that the concept of MY House started when Ms. Walter gave massages to her friend who was going through cancer treatment. This expanded to performing pampering functions for other women Board of Adjustment Minutes September 26, 2007 .3- going through cancer treatment. Ms. Walter could no longer perform these functions in her home and she needed a different location. At first she and her volunteers paid for all expenses. As the vision grew, more financial help was needed and a 501 (c) 3 corporation was formed in order to receive financial donations. MY House has no paid staff. She stated that no fund raising activities occur at MY House. She explained that a license to do manicures and pedicures is not necessary because cancer patients cannot have complete manicures or pedicures because of chemo treatment. The patients are given hand and foot massages and nails are painted. A business license was obtained in order to perform massages on patients. This involved doing background checks on volunteers. MY House does not perform any hair care on the women. A light lunch is served at noon. Patients come to MY House once a month during their treatment. There are two patients per day for five hours a day. There are two volunteers who perform the "pampering" services plus one volunteer who comes in before noon and prepares lunch. This person leaves after lunch clean-up is finished. Ms. Walter is there at different times to bring groceries, do landscaping, cleaning, etc. She has installed a security system. She stated there would be no fund raising activities at the house with the exception of a prospective donor who would want to tour the property. She also mentioned that after the neighborhood meeting, some residents approached her and told her they were sorry they signed a petition against MY House. Some even made monetary donations. For purposes of anonymity, the address is not given out in any literature about MY House. Nothing has changed in the operation of MY House that differs from the original application given to the City of Wheat Ridge. She stated her belief that MY House is a definite asset to the community. She requested that the Board not overrule the original decision by the Community Development Director. (Chair BLAIR declared a recess at 9:00 p.m. The meeting reconvened at 9: II p.m.) In response to questions from Board Member HOWARD, Ms. Walter stated that MY House has been in operation for six and a half years. The first two years, MY House was not a 501(C)3 corporation. Prior to being located at 3405 Flower Street, MY House operated out of the guest house of some friends. Prior to operating out of the guest house, MY House operated out of Ms. Walter's home for four and a half years. In response to a question from Board Member BUCKNAM, Ms. Walter stated that she wanted this service to operate out of a residential house instead of a commercial business place to provide a comfortable home-like atmosphere. In response to a question from Board Member PAGE, Ms. Walter stated that fund raising activities take place away from 3405 Flower Street. Occasional volunteer Board of Adjustment Minutes September 26, 2007 -4- meetings take place at MY House. She encourages volunteers to carpool or to park outside the neighborhood and walk in. In response to Board Member BLAIR, Ms. Walter stated that MY House presently operates Monday through Wednesday. Thursdays will be added after the first ofthe year and eventually Fridays will be added. MY House will not operate on weekends. In response to questions from Board Member HOWARD, Ms. Walter stated that the two bedrooms are used for manicures/pedicures and massage and no one lives in the house at night. She does come to clean the house some evenings and has installed a security system. She also stated that MY House has no paid employees. Everything is done on a volunteer basis. Jim Hoy 9140 W. 35th Avenue Mr. Roy was sworn in by Chair BLAIR. He expressed concern that the zoning for MY House would be grandfathered in. Debra Kalish informed Mr. Hoy that there was no change in zoning and there is no precedent setting value involved in this case. Mr. Hoy commented that group homes have someone sleeping there at night and is not a business use. Stephanie Cooper 3385 Flower Street Ms. Cooper was sworn in by Chair BLAIR. She submitted a written copy of her comments into the record and provided copies for Board members. She stated that she believed MY House is doing a noble thing, however it doesn't belong in a neighborhood where there are children at risk from traffic and people backing out of the driveway for MY House. Carol Ferris Neidiger 3210 Flower Ms. Neidiger was sworn in by Chair BLAIR. She spoke in opposition to having MY House in her neighborhood. She expressed concern about traffic danger from people coming to MY House. She also expressed concern about massage being performed at MY House. She stated that five massage therapy schools in the Denver area teach that you should not give massage therapy to cancer patients as it causes the cancer to metastasize to other parts of the body. She stated that she contacted Channel Nine and was informed that Channel Nine would be doing a story on the impact of MY House on the neighborhood. She also stated her understanding that a group home would require a variance. Debra Kalish explained that a variance would not be required for a group home unless there would be more than eight people living there. She stated that the Walter's teenage son drives recklessly in the neighborhood. Board of Adjustment Minutes September 26, 2007 - 5- Bill Montony 8480 West 35th Avenue Mr. Montony was sworn in by Chair BLAIR. Mr. Montony submitted a written copy of his comments and provided copies for Board members. He stated that granting MY House allowed use status sets a precarious precedent. If the decision is allowed to stand, it makes it easier for another business to take the place of MY House at the same location making it more valuable for a business than a residence. Travis Crane explained that each situation is identified and evaluated on a case by case basis and any decision by the Board on this matter will not set a precedent. Board Member BELL commented that an actual home occupation can occur as a permitted use in the R-IA zone district where there is an exchange of money. There would be an exchange of money for a group home. MY House is a nonprofit organization. Mr. Montony stated that he believed MY House is a business and opens a door to other businesses to come into the neighborhood. Janet Monson 9140 West 35th Avenue Ms. Monson was sworn in by Chair BLAIR. She submitted a written copy of her comments into the record and provided copies for members ofthe Board. She spoke in opposition to MY House. She objected to MY House as a business use of the property and its impact on the neighbors' privacy. She objected to her house being shown in the background of a picture of MY House on its web site. She stated that the city failed to notify adjacent property owners of the "variance" use by MY House. Lois Millican 3390 Flower Ms. Millican was sworn in by Chair BLAIR. She submitted a written copy of her comments into the record and provided copies for members ofthe Board. She objected to MY House being given permission to locate in a residential neighborhood without following city guidelines for spa use. She expressed concern about increased traffic from MY House. Non-residents driving through a small area increases the potential for tragedy. Jane Meyers 9120 West 35th Street Ms. Meyers was sworn in by Chair BLAIR. She submitted a written copy of her comments into the record and provided copies for members of the Board. She stated her belief that the city code does not include uses such as MY House. She expressed concern that business activities will increase in the future at MY House causing frequent disruptions in the neighborhood. Board of Adjustment Minutes September 26, 2007 -6- Linda Millican 3775 Garland Street Ms. Millican was sworn in by Chair BLAIR. She objected to MY House being given an allowed use status without going before City Council. Clarification of a non-profit versus a business operation is needed. Barbara St. John 3480 Everett Street Ms. St. John was sworn in by Chair BLAIR. She submitted a written copy of her comments into the record and provided copies for members of the Board. She disagreed that MY House is not open to the public. It is open to members of the public who need the services. She expressed concern that MY House has negative impacts on the neighborhood. There is no residential component in its use and no one lives there at night. A group home in this size house could only accommodate two residents and one supervisor and a group home needs three residents to be called a group home. This would not generate as much traffic as MY House. Bringing new people in has compromised the quiet nature of the neighborhood. This could set a precedent for other nonprofits to locate in the neighborhood. A less restricted use should not be allowed in a more restricted zone. She expressed concern about decreased property values for the neighborhood. She expressed concern about expansion of activities at MY House, liability issues and dust in the summer. Gene Walter 14124 West 21 st Place, Golden Mr. Walter was sworn in by Chair BLAIR. In response to concerns expressed about security and no one living there at night, a security system has been installed. All fire safety concerns have been addressed. Landscaping is well taken care of. He commented that Dr. Shui who is the head of oncology for Lutheran Hospital was present at the meeting earlier but had to leave. Dr. Shui is on the board of MY House and he has no problem with any of the services (including massage) performed for the patients who come to MY House. He stated that teenagers helped to accomplish the move but no longer have any reason to come to MY House. Peter Lilienthal 2200 Norwood Dr., Boulder Mr. Lilienthal was sworn in by Chair BLAIR. He is owner of the property at 3405 Flower Street. He stated that he was very pleased with the use of the property for MY House. The property is suitable for such a use as it has a very tranquil aspect to it and is not visible from the road. He disagreed that MY House is a business. He clarified that the aerial photo showing cars parked in the driveway which was submitted into the record earlier in the meeting was a photo of his cars taken while he lived in the house. He commented that impacts on the neighborhood would have been greater had he stayed in the house, popped the top Board of Adjustment Minutes September 26, 2007 -7- and had two teenagers living there. He asked the Board to uphold the decision made by the Community Development Director. There was no one else to address the Authority and therefore Chair BLAIR closed the public hearing at I 0:40 p.m. Board Member LINKER asked if other cities have the same zoning laws in this area. Travis Crane replied that this was not researched. Board Member HOWARD asked what recourse the operator of MY House would have in the event the Community Director's interpretation is overturned. Debra Kalish explained that Ms. Walter would have the right to file an action in District Court with the argument that the Board's decision was arbitrary and capnclOus. Upon a motion by Board Member ABBOTT and second by Board Member PAGE, the following resolution was stated: Whereas, the applicant was denied permission by an administrative officer; and Whereas, Board of Adjustment Application Case Number WA-07-13 is an appeal to this Board from the decision of an administrative officer and in recognition of testimony given; and Now, therefore, be it resolved that Board of Adjustment Application Case Number W A-07-13 be, and hereby is denied. Whereas the property has been posted the fifteen days required by law; For the following reasons: 1. The operator of MY House, a 501C3 nonprofit under the IRS Code, has demonstrated to the Community Development Director and to the Board of Adjustment that the facility is most similar in impact and less severe than a residential group home with eight or fewer adults, the determination originally stated by staff on February 8, 2007. 2. The 'day spa' is not a "business open to the public" rather it is the function of a nonprofit organization which serves women stricken with cancer who are referred to the facility. 3. The facility only accommodates up to two women at a time, and the duration of a woman's visit will last no more than five hours per day conducted during week days but not on a daily basis. Board of Adjustment Minutes September 26, 2007 .8- 4. The facility, as described, would not be expected to produce impacts beyond what can be incurred from accepted and allowed residential uses. 5. The Board of Adjustment found no use that we felt was more applicable. 6. There are similarities to a group home with eight or fewer adults. It is a residential based use. It serves people with health conditions in an outpatient, controlled and residential manner. Staff attends to clients, serves a nonstandard residential use in an acceptable impact manner. The house is an allowable square footage for a group home with eight or fewer adults and meets all other city requirements and fire department requirements. It is again not open to the public in the common sense but operates by invitation by a direct medical referral. 7. This use does not appear to be in violation of the rules of the Reservoir Improvement Association. Board Member PAGE requested that the words "but not on a daily basis" be deleted from reason number 3 because Ms. Walter indicated Thursdays and Fridays would be added in the future. Board Member ABBOTT agreed to delete the phrase. Board Member BUCKNAM commented that he has two small children and could sympathize with safety concerns expressed by neighbors. He also operates a home-based business and could sympathize with the operators of MY House. However, traffic issues can be addressed through police and public works departments. Board Member BELL stated that she would support the motion. There is nothing that says when someone purchases a house that they have to live in that house on a daily basis, sleep there at night or participate in the neighborhood. She did not see the difference between what would be done with a single family residence and what is done at MY House. She did not see any excess impact associated with the use. Board Member BLAIR stated that he would support the motion. Much of the testimony smacked of "not in my backyard syndrome" with talk about neighborhood versus strangers. Board Member HOVLAND stated that, while this is a difficult case, the charge to the Board is to determine whether or not the Director of Community Development made the correct choice. While some legitimate concerns have been expressed, Board of Adjustment Minutes September 26, 2007 - 9- he didn't believe anything was presented that indicated the Director made the wrong choice. Board Member ABBOTT stated that the Board is concerned about safety and welfare issues in a neighborhood. However, when there are such concerns, citizens have the option to contact the city to address the concerns. He stated his belief that the use is accurate. Board Member HOWARD stated that the argument has been made that the subject use is similar to a group home. He commented that a petition to raise the number ofresidents from four to six in a group home was heard before City Council last Monday night. The City Council denied the request. This mayor may not have any bearing on the subject case, but it doesn't indicate that the city is actually for group homes. The motion for denial passed by a vote of 7-1 with Board Member HOWARD voting no. Chair BLAIR advised that the application had been denied. 5. CLOSE THE PUBLIC HEARING Chair BLAIR closed public hearing. 6. OLD BUSINESS There was no old business to come before the Board. 7. NEW BUSINESS A. Approval of Minutes - July 26, 2007 It was moved by Board Member HOWARD and seconded by Board Member BELL to approve the miuutes of July 26, 2007. The motion passed unanimously. 8. ADJOURNMENT 10:55 The meeting was adjourned at 10:55 p.m. ,~ Robert Blair, Chair Board of Adjustment Minutes September 26, 2007 -10-