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HomeMy WebLinkAbout04/23/15IM City of W at dge BOARD OF ADJUSTMENT Minutes of Meeting April 23, 2015 CALL MEETING TO ORDER The meeting was called to order by Chair ABBOTT I at 7:03 p.m. in the City Council Chambers of the Municipal Building, 7500 West 29" Avenue, Wheat Ridge, Colorado, 2. ROLL CALL Board Members Present: U El Alternates Present: Board Members Absent: Staff Members Present: PUBLIC FORUM No one wished to speak at this time. PUBLIC IIEARING Thomas Abbott Sally Banghart Janet Bell Dan Bradford Paul Hovland David Kuntz Betty Jo Page Larry Richmond Meredith Recent, Sr, Planner Gerald Dahl, City Attorney Kenneth Johnstone, Community Development Director Daniel Brennan, Chief of Police Kim Waggoner, Recording Secretary A. 'Case No. WA -15-03: An application filed by Michael Pate/Carol Bausinger for Electric Guard Dog for an appeal of an administrative zoning determination related to the separation between an electric security fence and an existing perimeter fence (Case No. WA -14-1 1) pursuant to Section 26-603.E (Fence types prohibited), The City's Police Chief and Chief Building Official have determined that an electric fence must be separated from an external fence a minimum of three feet in order for the fence not to constitute a hazard to public health and safety. The applicant is Board of Adjustment Minutes April 23, 2015 requesting an interpretation that would allow an electric fence to be separated from the existing perimeter fence by one foot on property located at 9850 — 9870 West 1-70 Frontage Road South. The case was presented by Meredith Reckert. She stated the applicant filed an appeal of an administrative zoning decision relative to the separation of an electric security fence and an existing perimeter fence. The applicant is requesting an interpretation that would allow an electric fence to be separated from the existing perimeter fence by one foot. She stated the role of the Board is to either uphold or overturn the decision of the Community Development Director, She stated the interpretation would be applied to all other industrial and commercial properties in the city of Wheat Ridge. She stated the property has been experiencing an increasing number of theft and vandalism crimes. In effort to curb property crime the owner would like to install an electric security system. Ms. Reckert indicated that since her employment with the City since the early 1980's, electric fences have been determined not to be allowed at all due to concern for public safety issues and potential for human or animal exposure to a dangerous fence. The shock from an electronic device is not predictable. The impact can vary based on climate and weather conditions, size of the person getting shocked along with any possible medical conditions. The Board can either uphold staff's code interpretation or overturn staff's interpretation. She reiterated that the interpretation would apply city wide to certain other classes of commercial and industrial properties. She introduced Police Chief, Dan Brennan, City Attorney, Gerald Dahl and Community Development Director, Kenneth Johnstone at the staff table. Mr. Dahl stated the Boards' role is to determine if a one foot separation is safe or not. There are two options available for decision on page seven of the staff report. Conditions are not an option for this type of case. Board Member HOVLAND asked why the applicant waited a year to reapply and whether it is because they are asking for an interpretation as opposed to revisiting the original variance decision. M. Reckert replied affirmatively. It was indicated that the original variance approval from staff occurred on November 20, 2014. Board Member BANGHART asked if the municipal code allows electric fences, Mr. Johnstone stated the code is silent to electric fences. There are a number of different permitted fences that are listed in the code by example. The list has not Board of Adjustment Minutes April 23, 2.015 2 necessarily been used as prohibitive for other fences that are not listed. The code is silent to electric fences which is why an interpretation is needed as to when and under what conditions an electric fence would or would not be permitted. Mr. Dahl stated there is a provision in the code that lists prohibited fences referenced in the staff report. A determination was made that the electric fence is a hazard. The three foot separation was added as a condition to the variance to address the hazard of public safety concern. Board Member BANGHART asked if other people besides the Police Chief, CBO and Community Development Director came to same conclusion, Mr. Johnstone stated there was no extensive research done on what other jurisdictions allow. The Chief made some inquiries to other jurisdictions which do prohibit them, The City and County of Denver in a general sense prohibit electric fences but give the Fire Chief the discretion to approve them in certain instances. Board Member KU TZ stated the code allows barbed wire fencing in certain cases with a three foot separation. It seems this decision is similar to that provision, Ms. Reckert replied that is typically for agricultural fences in residential settings. In commercial and industrial districts two stranded barbed wire is allowed on top of a six foot fence if pointed inward. This would be allowed on the subject property. Board Member PAGE asked for clarification for the vote. Ms. Reckert stated to uphold staff's code interpretation a negative vote would be made. To overturn staff's interpretation a positive vote would be required. Mr. Dahl stated a yes vote indicates a one foot separation is okay, A no vote indicates a one foot separation is not okay. There was additional discussion about the interpretation. Mr. Dahl stated the interpretation decision will apply to the context in which the application was brought forth including the zone district which is a commercial district. Mr. Johnstone concurred. He stated a commercial district could abut a residential or agricultural zoned property. 'rhe appellants were sworn in by Chair ABBOTT. Randy Ketelsen Ketelsen Campers of Colorado 9870 W 1-70 Service Road Soul Board of Adjustment Minutes April 23, 201 S Wheat Ridge, CO Cynthia Williams Electric Guard Dog 121 Executive Center Blvd. Columbia, SC Mr. Ketelsen expressed his appreciation for the cooperation with Community Development and the Police Department to solve the crime issue at the property. He stated the system is a two prong system. A shock is administered when two wires make contact. It is also a monitoring security system. The police are called if the alarm is activated. The system is a solar powered twelve volt system. It monitors and reports infringements on the perimeter. Industry standards for this system for effective use are a one foot separation from the exterior fence. The City of Wheat Ridge approved the fence with a three foot separation. The perimeter of the property has a six foot high screened chain link fence around the thirteen acres. A person would have criminal intent to touch the system as the slatted screened chain link perimeter fence is on the outside and the electric fence would be one foot on the inside. He indicated that they were at the BOA meeting to ask the question about reducing the separation from three feet to one foot. Board Member PAGE verified the exiting chain link fence is on the north, south, east and west side of the property. She asked the height of the fence and if it is the same height abutting the school. Mr. Ketelsen replied yes, it is six feet tall, screened and it surrounds the entire property. The portion of the fence that adjoins the Pennington's property would not be electrified. The monitoring system will alert the police if it is touched and it is only in operation at night. He anticipates the electric fence will be on from 10:00 p.m, to 4:00 a.m. Ms. Williams stated the issue is that staff has determined it to be a life safety hazard at one foot but not three feet. It is the same fence at one foot as it is at three feet. The system has been tested by multiple experts on pulsed electric security. She referenced the information in the packet including the ICC Standard. She stated Electric Guard Dog adheres to the installation standard 60335-2-76. The standard states the electric security fence should be installed at three to eight inches from the perimeter fence. Most jurisdictions allow one foot. The electric fence will be inside private property. The standard requires a perimeter non -electrified fence no less than six feet in height which will enclose the electric fence. In this instance, the perimeter fence is slatted and totally screened. A three foot distance creates an entrapment zone and would make it easy to get in between the two fences. It also creates a non -maintainable area that becomes useless to the property owner. These systems are used to protect outdoor storage, They are not for Board of Adjustment Minutes April 23, 2015 4 residential use. It is battery powered and does not plug into the grid. You cannot reach through the screened fence. The studies show the system cannot cause ventricular fibrillation. When touched it will give an unpleasant feeling but it cannot injure you. Board Member BELL asked about the two pronged system. Mr. Ketelsen stated there are alternating wires. A person would have to touch the ground wire and the lead wire to be shocked. The second function is a monitoring system which would alert the police when the alarm is activated, It would be installed in zones. The property that abuts Pennington Elementary would only have the monitoring function. Ms. Williams stated all zones would provide some protection. Board Member BELL stated the most exposed area is along the school yard and rear parking lot, Is it possible to only install the monitoring function to avoid the hazard, Mr. Ketelsen stated it is not a hazard but the security need is everywhere. fie is willing to compromise the functionality on the area that abuts the school. Board Member KUNTZ stated staff did find the fence is a hazard and they are willing to mitigate the hazard with a three foot separation. Mr. Ketelsen stated there is no documentation to back up it up, The City would not approve something that is hazardous. Chair ABBOTT asked the contractor to reiterate the safety factors. Ms, Williams stated it is a twelve volt battery. It does not plug into the grid. The safety study has been provided, The City has determined it is safe or it would not be allowed even with a three foot separation. Board Member BANGHART asked Mr. Ketelsen what his objection is to the three foot separation. Mr. Kettleson stated the industry standard for the most effective use of the system is less than a one foot separation from the perimeter fence. Someone could get in between the fences at three feet, the alarm would go off and the police would come, No one can get in between a one foot separation or less but anyone could get into a three foot separation. In addition, there would be a loss of usable land with a three foot separation. Chair ABBOTT asked staff about the rest of the city bearing on the outcome of the case if the security fence is defined as non -lethal. Board of Adjustment Minutes April 23, 2015 5 Mr. Dahl stated the interpretation would apply citywide but only in the context of this application and the factors such as it is a commercial zone district, type of fence, twelve volt, pulsed, warning signs, to the extent it adjoins school and it is only on at night. It would apply to other operations in commercial zone districts with the same conditions heard here. Board Member HOVLAND asked if the Board sided with the applicant, whether staff' could look at zoning code provisions to cover similar situations. Mr. Johnstone replied that if the Board is supportive of the applicant's request to reverse the interpretation, it would be appropriate to advise City Council of the determination and the implications and let them decide if that would cause a review of the fence code in regard to electric fences, During the review, staff concluded that it had been a long standing policy that electric fences were defacto prohibited, When staff considered potentially allowing an electric fence, not only in this specific instance but also from a policy perspective, staff factored in on the interpretation how it would apply citywide and not just the Ketelsen property. The concern with the entrapment zone between the perimeter fence and the electric fence is the ability to get away from the electric current. The three foot separation would provide the ability to get away from the shock. Board Member BANGHART stated there is less of chance of getting into the one foot separation than the three foot separation area. Mr. Johnstone stated there are two reasons for concern. At one foot with an open chain-link fence an arm could reach through the standard chain link distance. The other reason is the concern for the area of entrapment. Board Member PAGE asked if the current is pulsed or if it is constant. Board Member RICHMOND asked if anyone breached the existing perimeter fence by going under it or attempted to go under it. Mr. Ketelsen replied no. Chair ABBOTT asked about the pulsed electricity, Ms. Williams stated it is 1/10,000 of a second, Mr. Ketelsen commented on the notion of someone getting in between the one foot separation area. He said the police will be alerted. The wires could be stretched and a person could clear the fence and breach the perimeter however a person could not exit the property in the same manner. Board of Adjustment Minutes April 23, 2015 6 Board Member KUNTZ stated if this is approved and becomes popular, electric fences could be the new thing for industrial and commercial parcels to install. He opined one night of discussion is not enough to determine a citywide decision. City Council should rule on something that could apply citywide. Board MernberPAGE stated it was unfortunate that the property owner would give up so much property for a dead zone. The communities that are approving these systems are subject to approval from the Fire Department not a citywide allowance, Board Member KUNTZ stated had the applicant appealed within the ten days, the Board would have heard an appeal for the property and it would not apply citywide. Mr. Dahl stated the appeal right was not exercised. This avenue is available and the applicants choose to utilize the interpretation course of action instead. Board Member HOVLAND asked whether the applicant appealed a year ago, would it have been site specific or an interpretation. Mr. Dahl replied it would have been exclusively for the property. The interpretation while available throughout the city will be available only under the conditions and characteristics as heard here tonight. Board Member HOVLAND stated the appellant has done a good job documenting other cases and providing industry standards. He didn't think he had heard anything from the City to substantiate the three foot separation as opposed to the one foot separation. Board Member BRADFORD asked if there have been any other requests for an electric fence. M. Reckert stated there have been requests over the years and the response has been that they are not allowed. Board Member RICHMOND stated be thought the use of electric tences should be given more consideration because it could be a crime deterrent for the police department. Board Member BANGHART reiterated the City has approved the electric fence. The issue is the separation of one foot or three feet from the perimeter fence. She asked if' a precedent has been set for any commercial property similar to this one to have an electric fence since the City approved the electric fence. Mr. Dahl stated yes in the sense it is an interpretation to the extent of whether staffs decision on the one foot separation should be overturned. Board of Adjustment Minutes April 23, 2015 7 Mr. Dahl clarified that had the applicant used his appeal rights it would have been an appeal of an administrative variance and it would not be an interpretation and the request would have been reviewed on its own merits. Mr. Johnstone added that in granting the variance staff was conscious in limiting the variance to specific facts at hand in terms of the remoteness of the perimeter of the site, the configuration of it, and the presence of vacant land next store. Much like the findings of this evening, factors of this case may limit the future applicability of the action the board will take tonight. Chief Brennan stated he did some research on electric fences. There are situations where an electric fence can be an effective deterrent as noted in the packet. The consideration staff gave on this case based on the property and crime issues is the location of property adjacent to a school and playground. Pennington School and the ball fields are utilized often by the community. The decision was not made on the perspective that this kind of an electric fence is an unsafe device but how the circumstances of the property and concern in regard to children. The school also expressed a concern. Staff tried to find a win/win situation for a well-respected business owner in the city. Electric fences are primarily installed in industrial areas such as truck stops, impound lots and in areas where a lot of deliveries are made or where large items are stored. fie stated be didn't have the impression from Mr. Ketelsen that lie anticipated the police department to respond to every alarm. 97% of alarms in the community are false alarms. The police department responds to verified alarms or knowledge of the area. Chair ABBOTT expressed sympathy for Mr. Ketelsen for the loss of money and the anxiety of the situation. The members spoke of the implications of the decision and the wisdom of letting the elected officials look into this further. Board Member BELL questioned the motion template and the appellant names listed on it for Electric Guard Dog. Ms. Reckert stated all the names in addition to Ms. Williams are employees of Electric Guard Dog and it would be appropriate to use them. Upon a motion by Board Member BELL and second by Board Member PAGE, the following resolution was stated: WHEREAS, the property has been posted the fifteen days required by law; and Board of Adjustment Minutes April 23, 2015 WHEREAS, the relief applied for may be granted without detriment to the public welfare and without substantially impairing the intent and purpose of the regulations governing the City of Wheat Ridge, 1011.1111 1 11 1 1 # I # I I I # # RHIt"WINYMIA11801 1 "10 1 H I I I Mr. Dahl stated the intent of the motion is unclear. Board Member BELL restated the motion. I therefore, move to adopt a resolution to uphold staffs code interpretation for the reasons set forth in the staff report. Board Member PAGE seconded the motion. There was a discussion about the motion and vote. No= Mr. Dahl stated the motion to uphold the staff s determination failed. In order to grant the appeal a superm�jority vote is needed. A denial is deemed without a supermajority vote. The appropriate thing to do is to take a motion to grant the appeal, Mr. Dahl suggested the following motion: I move to approve a resolution approving the appeal and overturning the staffs determination that an electric fence with a one foot separation does not constitute a safety hazard. It was moved by Board Member HOVLAND and seconded by Board Member BANGH ARTto adopt a resolution approving Case No. WA -15-03. There was discussion about the motion and vote. The Motion was approved by a vote of 5-3 with Board Members KUNTZ, ABBOTT and BELL voting no. However, because a super -majority vote did not occur, the request for interpretation is not approved. Ms. Williarns requested findings of fact. Mr. Dahl stated he would be happy to prepare findings of fact which would be available for review by the Board at the May 28, 2015 meeting. Board of Adjustment Minutes April 23, 2015 9 It was moved by Board Member PAGE and seconded by Board Member BELL to have the City Attorney prepare findings of fact. Motion approved 7-1 with Board Member KUNTZ voting no. Mr. Kettelston stated he in more interested in finding of fact from the Board and not the City Attorney. Mr. Dahl stated the procedure is that he will prepare lindings of fact based upon the record. The Board will vote on it at the next meeting. The hearing is closed and the applicant is not permitted to have further individual conversations with the Board members. Ms. Reckert stated the applicant has a thirty day period to appeal to district court. Mr. Dahl stated the thirty day window starts from when the decision is final when the findings of fact are approved. 5. CLOSE PUBLIC HEARING Chair ABBOTT closed the public hearing. 6. OLD BUSINESS There was a discussion about a training session. A training session may be scheduled before the next meeting or another date when there are no cases scheduled. 7. NEW BUSINESS A. Approval of Minutes — January 22, 2015 Board Member BANGHART stated she was present at the meeting but not on the list of board members present. It was moved by Board Member PAGE and seconded by Board Member HOVLAND to approve the minutes with the correction. Motion approved 7-0 with Board Member RICHMOND abstaining. 11. Election of Officers Board Member HOVLAND was voted Chair. Board Member KUNTZ was voted Vice Chair. Board of Adjustment Minutes April 23, 20115 10 7. ADJOURNMENT It was moved by Board Member HOVLAND and seconded by Board Member KUNTZ to adjourn the meeting. The vote was unanimous and the meeting was adjourned at 9:05 p.m. Y7 Thomas Abbott, Vice Chair A& Kim Waggoner, Rec r i g Secretary Board of Adjustment Minutes April 23, 2015