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HomeMy WebLinkAboutResolution 02-2015 Resolution Finding and DecisionARMORY TV awl W-11 a all Case No. WA -1 5-03.- Application by Electric Guard Dog THIS MATTER comes on for hearing upon the application filed by Michael Pate/Carol Bausinger on behalf of Electric Guard Dog, LLC (the "Applicant") for an interpretation concerning the separation between an electric security fence and an existing perimeter fence pursuant to Section 26-115.E of the Wheat Ridge Code of Laws (the "Code"). The Board of Adjustment (the "Board") having conducted public hearing on the application on April 23, 2015, hereby enters the following Resolution, Findings and Decision: I . Michael Pate/Carol Bausinger filed an application for an interpretation on behalf of Electric Guard Dog, LLC concerning the separation between an electric security fence and an existing perimeter fence, 2. The applicant, Electric Guard Dog, LLC installs electronic security systems, primarily for commercial and industrial applications. Electric Guard Dog has applied to install such a system on property owned by Ketelsen Campers, located within the City on property zoned C-1. 3. The system would be comprised of electrical wire strung between 9 foot - high poles. The wires would run close together, 3 to 6 inches apart. Cable support poles would be spaced 10 feet apart behind an existing six foot -high chain-link fence. 4, The system's electric wires create a three ten thousandths of a second electric shock, which is certified within OSHA safety standards by the International Electrotechnical Commission. Along with an electric shock upon contact, the system is linked to a central monitoring system. If contact is made, the central monitoring system contacts the property owner to ask if police should be dispatched. 5. The 9 foot -high fence supporting the electric wires is proposed to installed around the rear and sides of the property with a 1 foot offset (inside of) ti ;txisting perimeter chain-link fence. E 6. The Wheat Ridge Code of Laws Section 26-603 regulates fencing within the City. It designates permitted fence heights, controls sight distance and specifies where fencing may be installed. Section 26-603.D governs the types of fencing that may and may not be installed in the City, and provides in pertinent part as follows.- V'*_.s__dT1_1 1. masonry walls 2. ornamental iron 3. woven wire and chain-link 4. wood 5. hedges 6 barbed wire ... 1. Any fence, within the opinion of the Chief Building Official, Public Works Director, or Chief of Police, that would constitute a hazard to the health or safety of any person.- and 2. Any fence which does not comply with the provisions hereof, unless a variance has been approved, 7. Based upon Code Section 26-603.E.1, the Applicant was informed that electric fences are not allowed within the City based upon a concern for public safety and the potential for human or animal exposure to a dangerous fence. In this case, staff communicated to the Applicant that the fence was prohibited based upon safety concerns with the proximity of the electric fence with a one -foot separation from the chain-link perimeter fence andthat this was especially critical with respect to the Pennington Elementary School which abuts the property on two sides, 8. The Applicant applied for an administrative variance pursuant to Code Section 26-115 to permit the poles for the new electrical system to be nine feet in height rather than 10 feet; it being a standard per the Code that a perimeter fence is limited to six feet in height. Pursuant to Code Section 26-115.C, a request for a nine foot -high fence could be granted administratively as it would be a 50% or smaller variance. 9. The variance application captioned Case No. WA -14-11 was processed administratively and was referred to the following agencies: Arvada Fire Protection District, Wheat Ridge Police Department, and Jefferson County School District. Both the Police Department and the School District, as well as the City's chief building official, expressed concern for the electric fence unless a three-foot setback was required for the electric fence from the perimeter chain-link fence. The Jefferson County School District also expressed that the electric fence which would visibly be the same, should not be capable of carrying an electric current or be next to the school property. 10. The Applicant's administrative variance application was approved by the Community Development Department Director on November 20, 2014 and allowed a M fence height of 9 feet to permit the security system to be installed. The Community Development Director placed three conditions on the approval of this administrative variance: i. the proposed fence be located three feet inside the existing perimeter fence; ii. the portion of the fence adjacent to the Pennington Elementary School property being incapable of carrying a current; iii. the system be turned on during hours only when the business itself is not open. 11. The Applicant did not agree with the first condition: the required •• separation •• the existing •• fence and the electric fence. Pursuant to Code Section 26-115.C.2, an appeal of conditions placed on an administrative variance may be made to the Board of Adjustment only if a written appeal is submitted within 10 days of the administrative decision. The Applicant failed to file an appeal within the 10 day period, which expired on November 30, 2014. Under Code Section 26-115.C.2, the administrative condition imposing the three-foot fence setback is no longer eligible for appeal to the Board of Adjustment. In addition, a new application for substantially the same development may not be refiled for one year. See, Code of Laws Section 26- 107.C. 12. On March 27, 2015, the applicant filed this request for an interpretation of the provisions of the Wheat Ridge Code of Laws by the Board of Adjustment. This ,?pplication is permitted and governed by Code Section 26-115.E, which provides: E. Interpretations. The board of adjustment is empowered to hold public hearings to decide upon requests for interpretation of certain of the provisions of this chapter in such a way as to carry out their intent and purpose. This authority shall extend only to the following: 1. The basic intent and purpose of words, phrases or paragraphs as applied to a specific proposal or instance. 2. Use of property as an "other similar use,-" however in no instance shall the board make an interpretation that a particular use may be permitted in a zone district where that use is specifically enumerated in a higher,* that is more intensive, zone district. 3. Administrative decisions taken by the director of public works following final approval by the planning commission or city council, as appropriate, may be appealed to the board, which is empowered to reverse or modify such decisions, in whole or in part, upon a showing by the applicant that the effect of the director's decision would impose a particular and unique hardship upon the owner of the subject •#• as distinguished from mere inconvenience, and N 13. The Applicant is requesting an interpretation from the Board of Adjustment that an electric fence separated by only one foot from a perimeter fence does not constitute a public safety hazard and is therefore not prohibited by the Code of Laws, WII 15, Pursuant to Code Section •26-109, proper public notice was given for a public hearing on the application for an interpretation before the Board of Adjustment on April 23, 2015 at 7:00 PM. The Board conducted the public hearing at that time. 16. The following persons testified at the hearing: for the City, Senior Planner Meredith Reckert, Community Development Director Kenneth Johnstone and Police Chief Daniel Brennan. The Board was advised at the hearing by City Attorney Gerald Dahl. For the property owner: Randy Ketelsen. For Electric Guard Dog: Cynthia Williams. 17. The City staff submitted a PowerPoint presentation and a written staff report authored by Meredith Reckert and titled "City of Wheat Ridge Planning Don Staff Report: Case No. WA -1 5-03\Electric Guard Dog." 18. The Applicant submitted the following documents- iElectric Guard Dog for Ketelsen Cam #' '#a ration Justification Narrative (undated) ii. Electric Guard Dog, LLC - interpretation of the City of Wheat Ridge Muni Code Section 26-603.E fence types prohibited #1 (undated) Copy of Permit No. 145586 issued by the Denver Fire Prevention Bureau dated July 1, 2014 (2 pages) iv. Denver Permit No. B20148445427:4920 N. Washington Street V. Denver approval package for electric fence at United Rentals - 11250 E. 40th APermit No. 145645 vi. Letter from Denver Fire Department dated March 20, 2014 to Sean Maley, Vice President CRL Associates Inc. approving a request for administrative modification and attaching Denver Fire Department policy and building permit vii. Study by John G Webster, Professor at University of Wisconsin, Madison viii. IEC Report No. 60335.2.7.6 ix. Site Plan of the subject property with electric fence sections illustrated in 0 Motion by Member Bell, seconded by Member Page, to approve a resolution denying the appeal for a zoning code interpretation of an administrative officer and upholding the interpretation of the City staff that a one -foot separation between the perimeter fence and electric fence constitutes a safety hazard and is not permitted. against. 26. After discussion, the motion failed on a vote of four in favor and four 27. Motion was then made by Member Hovland, seconded by Member Banghart, to approve the appeal by the applicant and overturn the staff determination that an electric fence with a one -foot separation constitutes a safety hazard. Following discussion, the Board voted five in favor and three against the motion. 28. Code Section 2-53(d) governs the voting requirements for variances and interpretations by the Board of Adjustment: Notwithstanding any other provision in this section, the following voting rules shall be in effect for all matters requiring decision by the board of adjustment to grant any variance, waiver, temporary building or use permit, any interpretation or floodplain special exception permit (or for any matter requiring decision by the planning commission or the city council under Section 26-6(D) of the Zoning Ordinance of the city): 29. Because eight members of the Board of Adjustment were present and voting, a super majority of six votes was needed to grant the appeal pursuant to Code Section 2-62(d)(3). If a motion fails to receive the required super majority of members P resent and voting, [11he action will be deemed equivalent to a denial, and a resolution denying such application or appeal shall be formally entered upon the record," Code Section 2-62(d)(3). 0 1 . The Board finds the testimony of the City staff credible and the recommendations in the "City of Wheat Ridge Planning Division Staff Report: Case No. WA—I 5-03\Electric Guard Dog" to be justified. Z Based upon the entire record presented at the public hearing and the relevant portions of the Wheat Ridge Code of Laws, the Board finds that the application of Electric ayunder Case I Upon request of the City Attorney, Board Member Page moved and Board Member Bell seconded a motion to direct the City Attorney to prepare Findings memorializing its decision for the Board's consideration at its next meeting, The motion passed seven votes to one. MOVED, SECONDED, AND ADOPTED by a vote of 7 in favor, 0 against, and I abstention, this 28 th day of May, 2015. — — By the Bo d "I Paul Hovland, Chair ATTEST - Kim Waggoner, cretary to the Board I hereby certify that I placed a true and correct copy f the foregoin, Resolution, Findings and Decision to the following per,,• ki day of 2015 in the United States mail, first class postage prepaid, addressed as follo Randy Ketelsen Ketelsen Campers of Colorado 9870 W 48th Ave Wheat Ridge, CO 80033 Michael Pate/Carol Ma •. Electric Guard Dog, LLC PO Box 21832 Columbia, South C 91