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HomeMy WebLinkAboutJune 27 Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Call Amanda Harrison, Public Information Official, at 303-235-2877 at least one week in advance of a meeting if you are interested in participating and need inclusion assistance. BOARD OF ADJUSTMENT A G E N D A June 27, 2024 Notice is hereby given of a public hearing to be held before the City of Wheat Ridge Board of Adjustment on June 27, 2024, at 7:00 p.m., in the City Council Chambers of the Municipal Building, 7500 W. 29th Avenue, Wheat Ridge, Colorado. 1. CALL THE MEETING TO ORDER 2. ROLL CALL 3. PLEDGE OF ALLEGIANCE 4. PUBLIC FORUM (This is the time for anyone to speak on any subject not appearing on the agenda.) 5. PUBLIC HEARING No cases to be heard. 6. OLD BUSINESS 7. NEW BUSINESS A. Approval of Minutes – March 28, 2024 B. Board of Adjustment Training C. Election of Officers D. Updates E. Member Updates 8. ADJOURNMENT Board of Adjustment Minutes March 28, 2024 1 BOARD OF ADJUSTMENT Minutes of Meeting March 28, 2024 1. CALL MEETING TO ORDER The meeting was called to order by Chair PAGE at 7:00 p.m. in the City Council Chambers of the Municipal Building, 7500 West 29th Avenue, Wheat Ridge, Colorado. 2. ROLL CALL Board Members Present: Thomas Burney Michael Griffeth Paul Hovland Betty Jo Page Larry Richmond Laura Sicard Alternates Present: Alastair Huber Board Members Absent: Staff Members Present: Jana Easley, Planning Manager Alayna Olivas-Loera, Planner II Tammy Odean, Recording Secretary 3. PUBLIC FORUM No one wished to speak at this time. 4. PUBLIC HEARING A. Case No. WA-24-01: The case was presented by Alayna Olivas-Loera. She entered the contents of the case file and packet materials, the zoning ordinance, and the digital presentation into the record. She stated all appropriate notification and posting requirements have been met and advised the board there was jurisdiction to hear the case. She reviewed the presentation and staff report. The applicant is requesting approval of a 16-foot-5-inch (65.67%) variance from the required 25-foot side yard setback for an attached garage in the Residential-Two (R- 2) zone district and located at 3795 Holland Street. Board of Adjustment Minutes March 28, 2024 2 Staff recommends approval of this variance. There are unique circumstances attributed to this request that warrant approval. In response to a question from Chair PAGE, Ms. Olivas-Loera explained the yellow color on the map represents Residential-One (R-1) and the green color represents Residential-Two (R-2) zone districts. Public Comment Chair PAGE opened the public comment. Julie Clark, resident 3821 Holland Street Ms. Clark commented that she would like to see the juniper bushes removed along 38th Avenue to better improve the sight visibility for vehicles on Holland Street. Chair PAGE closed the public comment. Members HUBER and HOVLAND mentioned they will support this variance and think it is good for the property. Upon a motion by Member HUBER and seconded by Member SICARD, the following motion was stated: WHEREAS, application Case No. WA-24-01 was not eligible for administrative review; and WHEREAS, the property has been posted the fifteen days required by law and in recognition that there were no protests registered against it; and 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; and NOW, THEREFORE BE IT RESOLVED that Board of Adjustment application Case No. WA-24-01 be, and hereby is, APPROVED. TYPE OF VARIANCE: Request for approval of a 16-foot-5-inch (65.67%) variance from the required 25-foot side yard setback for an attached garage in the Residential-Two (R-2) zone district and located at 3795 Holland Street. FOR THE FOLLOWING REASONS: 1. The variance would not alter the essential character of the neighborhood; the proposed location of the garage is likely the least impactful option and is the most consistent with historic conditions. Board of Adjustment Minutes March 28, 2024 3 2. The applicant is proposing a substantial investment in the property that may not be possible without the variance. 3. The particular physical surrounding, shape or topographical condition of the specific property involved results in a particular and unique hardship, notably the presence of mature trees, a change in grade, and the corner lot configuration. 4. The unique physical hardship has not been created by anyone having an interest in the property. 5. The granting of the variance would not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located. 6. The unusual circumstances or conditions are present in the neighborhood and are not unique to the property. WITH THE FOLLOWING CONDITIONS: 1. The design and architecture of the proposed garage shall be consistent with representations depicted in the application materials subject to staff review and approval through review of a building permit. 2. A building permit shall be submitted to the Building Division within 180 days of variance approval. Motion approved 7-0. B. Case No. WA-24-02: The case was presented by Alayna Olivas-Loera. She entered the contents of the case file and packet materials, the zoning ordinance, and the digital presentation into the record along with 6 additional objection emails. She stated all appropriate notification and posting requirements have been met and advised the board there was jurisdiction to hear the case. She reviewed the presentation and staff report. The applicant is requesting approval of a 7.5-foot (50%) variance from the required 15-foot side yard setback for a residential addition and attached garage in the Residential-One (R-1) zone district and located at 23 Skyline Drive. Staff recommends approval of this variance. There are unique circumstances attributed to this request that warrant approval. Darrin Hammerschmidt, applicant 23 Skyline Drive Mr. Hammerschmidt gave a brief history of the property including the transmission line easement and property setbacks. He mentioned a pre-application meeting in March of 2020 with staff, regarding the design of his project and thought an administrative variance would suffice. Board of Adjustment Minutes March 28, 2024 4 In response to multiple questions from the board members, Mr. Hammerschmidt explained that he had two options for building the addition, the first being a single- story design which is preferred, and it would also save the ash tree in the courtyard. The second would be a 2-story addition in which the tree would not be saved, and the project would be more costly. He said he wanted to be cognizant of the neighborhood and all the ranch houses that are in close proximity. He added that if he followed the setbacks, he would not have adequate space for the new garage. Member GRIFFETH asked if there is any value or code requirement placed on the trees by the City. Ms. Olivas Loera clarified that there is no code requirement on existing trees but explained that because this is an established neighborhood there is a value on mature trees. In response to a question from Member Sicard, Ms. Olivas-Loera confirmed there is nothing written in the Code that will preserve the view of other property owners. Members PAGE and GRIFFETH inquired about the thick, overgrown brush on the property line fence and if it blocked the view of his neighbor, Ms. Wojewoda. Mr. Hammerschmidt explained that he has trimmed back the thick brush on his side of the fence but can’t speak to if the brush on her side blocks a view. Public Comment Chair PAGE opened the public comment. Keith Hall, speaking on behalf of Peggy Wojewoda 6290 W. 111th Avenue, Westminster Mr. Hall briefly explained how this addition variance would impact Ms. Wojewoda with the loss of her view. He believes the addition can be “scootched” so there will not be an encroachment to the setback. Richard Orcutt, resident 10033 W. 30th Avenue, Wheat Ridge Mr. Orcutt has lived in the area for 60 years and is undecided on this variance and believes this is an important issue of what constitutes a variance. He mentioned he has concerns with a two-story addition being built in this neighborhood and of course construction can cause issues as well. Jordan Kessler, speaking on behalf of Peggy Wojewoda 7671 Windy Court, Arvada Mr. Kessler expressed his concern that the addition variance will devalue Ms. Wojewoda’s property/house. He mentioned he would not have recommended Ms. Board of Adjustment Minutes March 28, 2024 5 Wojewoda purchase her house 34 years ago if the next-door addition was in place and added that homes in this neighborhood were built for the views and buyers pay more for a view. Chair PAGE closed the public comment. Board Member BURNEY addressed the board and disclosed that he had previous conversations with the applicant about the addition. Ms. Easley directed several questions to Board Member BURNEY to determine whether he had a conflict of interest and could make a fair and impartial decision. Upon finding no conflict and the ability to make a fair and impartial decision, the meeting continued. Mr. Hammerschmidt clarified he has no intention of hindering anyone’s property values. Member BURNEY asked whether there is room for compromise by relocating the addition 2.5 feet farther from the neighbor’s fence, although it may cause the tree to be removed. He thought it would be a nice gesture for Ms. Wojewoda and wouldn’t eliminate the courtyard. Mr. Hammerschmidt said that moving the addition 2.5 feet is doable but will still require a variance into the 15-foot setback and believes is still does not solve Ms. Wojewoda’s complaint. Chair PAGE reopened the public comment. Mr. Hall asked if the ash tree has been treated for ash borer. He mentioned that Ms. Wojewoda believes the lesser of two evils is for a second story addition to be built within the required setbacks and wishes Mr. Hammerschmidt would uphold the City’s development standards. Chair PAGE closed the public comment. There was board discussion around reducing the setback deviation. Ms. Easley explained that the board has a discretionary role and could approve a lesser variance if they find the hardship is not self-imposed and as long as the board’s decision is based on sound judgement and not arbitrarily applied. Upon a motion by Member HOVLAND and seconded by Member HUBER, the following motion was stated: WHEREAS, application Case No. WA-24-02 was not eligible for administrative review; and WHEREAS, the property has been posted the fifteen days required by law and in recognition that there were protests registered against it; and Board of Adjustment Minutes March 28, 2024 6 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; and NOW, THEREFORE BE IT RESOLVED that Board of Adjustment application Case No. WA-24-02 be, and hereby is, APPROVED. TYPE OF VARIANCE: Request for approval of a 7.5-foot (50%) variance from the required 15-foot side yard setback for a residential addition and attached garage in the Residential-One (R-1) zone district and located at 23 Skyline Drive. FOR THE FOLLOWING REASONS: 1. The variance would not alter the essential character of the neighborhood. 2. The particular physical surrounding, shape or topographical condition of the specific property involved results in a particular and unique hardship, notably an irregular lot shape, overhead transmission lines, and mature trees. 3. The unique physical hardship has not been created by anyone having an interest in the property. 4. The granting of the variance would not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located. 5. The unusual circumstances or conditions are present in the neighborhood and are not unique to the property. 6. The proposed single-story design with a variance is likely less impactful than an alternative two-story design without a variance. WITH THE FOLLOWING CONDITIONS: 1. The location of the addition and attached garage shall be consistent with representations depicted in the application materials subject to staff review and approval through review of a building permit. 2. Existing trees as depicted on the site plan shall be protected and preserved during construction. Best practices to maintain long-term tree health for the applicable species are encouraged. 3. A permit application for the structure shall be submitted to the Building Division within 180 days of variance approval. Motion approved 6-1 with Member BURNEY voting against. 5. CLOSE PUBLIC HEARING Chair PAGE closed the public hearing. 6. OLD BUSINESS 7. NEW BUSINESS Board of Adjustment Minutes March 28, 2024 7 A. Approval of Minutes – October 26, 2023 It was moved by Board Member GRIFFETH and seconded by Board Member HUBER to approve the minutes as written. Motion approved 7-0. B. Upcoming Dates Ms. Easley mentioned there will be a meeting for training in the near future and will know in a week if there will be a meeting held in April. She added that all members are welcome to attend the City Council meeting on April 1 for a Boards and Commissions update. Ms. Easley also let the Board know about the new Bylaws and Code of Ethics which were handed out to each of them. She mentioned there is a change to the attendance, term-limits will be restricted to two term limits, and each term is three years. Also, if you move out of district to please alert the City Clerk. C. Member Updates Ms. Easley announced there will be a new board member at the next meeting and welcomed Amanda Rodriguez. 8. ADJOURNMENT It was moved by Member GRIFFETH and seconded by Member SICARD to adjourn the meeting at 8:40 p.m. Motion approved 7-0. __________________________ _____________________________ Betty Jo Page, Chair Tammy Odean, Recording Secretary 1 CITY OF WHEAT RIDGE BOARD OF ADJUSTMENT TRAINING WORKSHOP June 27, 2024 I. Appointment and Membership. A. Council appoints so as to have approximately equal representation from each council district. All members shall be residents of the city, registered voters and shall be subject to removal for just cause by the council. (Charter §9.3) B. The BOA is governed also by its Bylaws and the City’s Boards and Commissions Code of Ethics. C. Pursuant to the adopted Bylaws, a member having two unexcused absences in a calendar year is automatically removed. II. Power and Authority of the Board. A. Variance/Waivers/Temporary Permits/Interpretations. 1. Purpose: “Where it is desired to gain relief from the strict application of any provision of this chapter or to seek an interpretation of the provisions or associated official maps.” (Code §26-115.A.) 2. The Community Development Director has authority to grant variances and waivers of 50 percent or less from certain development standards, subject to the same criteria applicable to the board of adjustment’s consideration of variance requests. (Code §26-115.C.1) B. Review Criteria for Variances and Waivers. (Code §26-115.C.5) The community development director, board of adjustment, planning commission or city council shall base its decision on consideration of the extent to which the applicant demonstrates a majority of the following criteria have been met. 1. The property in question would not yield a reasonable return in use, service or income if permitted to be used only under the conditions allowed by regulation for the district in which it is located. 2. The variance would not alter the essential character of the locality. 3. The applicant is proposing a substantial investment in the property with this application, which would not be possible without the variance. 4. The particular physical surrounding, shape or typographical condition of the specific property involved results in a particular and unique hardship 2 (upon the owner) as distinguished from a mere inconvenience if the strict letter of the regulations were carried out. 5. The alleged difficulty or hardship has not been created by any person presently having an interest in the property. 6. The granting of the variance would not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located, substantially or permanently impairing the appropriate use or development of adjacent property, impairing the adequate supply of light and air to adjacent property, increasing the congestion in public streets or increasing the danger of fire or endangering the public safety, or substantially diminishing or impairing property values within the neighborhood. 7. The unusual circumstances or conditions necessitating the variance request are present in the neighborhood and are not unique to the property. 8. Granting the variance would result in reasonable accommodation for a person with disabilities. 9. The application is in substantial compliance with the applicable standards set forth in the Architectural and Site Design Manual. C. Interpretations of the Code, limited to: (Code §26-115.E.) 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, more intensive zone district. 3. Appeal of a decision to deny a variance or conditions of approval imposed on a variance by the Community Development Director. D. Limitations on the Board’s Authority: (Code §26-115.C.1.e.) “In no instance shall the [Board of Adjustment] hear or grant a variance as to use or as to an activity or development which is prohibited by this chapter or by Section 5.10.1 of the Charter [concerning maximum building height and residential density limitations].” 3 III. Implementing the Hardship Standard in Practice While "hardship" is in the mind of the beholder, some important elements should be a part of the applicant's case: A. Hardship should not be self-imposed. Did the applicant buy the property knowing that it was too small for the required lot size in the single family zoning district, or with knowledge that the front setback would force the building to be exceptionally narrow? B. The conditions creating the hardship should be peculiar to that property and not shared generally in the zone district. Are all the lots in this area platted at less than needed for a “normal single-family home” such that it is not possible to build a conforming structure without the need for a variance? What is the motivation for the claim of hardship? C. It is not enough for the applicant merely to prove that it would be more convenient to have the variance. D. The applicant has no right to the highest and best use of his property, and the Board need not grant a variance to ensure this. E. Is the motivation for the variance simply financial ? Does the applicant merely wish to avoid the cost of compliance with the regulations? F. Has the impact on the surrounding area and the health, safety, and welfare of the public been documented? It may be that even though true hardship is proven, to grant the variance would decrease the quality of life for the neighborhood. The applicant's burden of proof extends beyond proving its own hardship to include also proving that granting the variance or reversing the administrative officer's decision will not injure the public or the surrounding property owners. G. Does approval or denial of a variance “set a precedent?” No, each case is unique. IV. Nature of the Case: Burden of Proof A. As an appellate body, the Board's task is not to solve each problem brought to it, but instead to determine whether the necessary standards of hardship have been met and, even if so, whether reversing the administrative decision or granting a variance will not injure the public health, safety, and welfare. It is to be expected that the Board will deny the appeal in many cases or grant less than the requested variance. 4 B. The burden of proof is upon the applicant to prove that the requirements of the Code of Laws have been met. The standard is that the Board shall base its decision on “the extent to which the applicant demonstrates a majority” of the criteria of Code §26-115.C.5. are met: (hardship not self-imposed; unique attributes of the property; public health, safety and welfare not affected; etc.). C. On appeal, the reviewing court will not substitute its judgment for that of the Board unless the Board's discretion has been clearly abused. V. The Quasi-Judicial Standard Actions of the Board on variance or waiver requests or appeals from administrative officials are quasi-judicial, not legislative. Actions of the Board on variance or waiver requests or appeals from administrative officials are quasi-judicial, not legislative. The Board sits as the final decision maker (a judge) for variances of more than 50%, and as an appellate body (a judge), not as the decision maker in the first instance for variance requests of 50% or less that were denied by the community development director and appealed to the Board. The consequences of the fact that the BOA's function is quasi-judicial are several: The consequences of the fact that the BOA's function is quasi-judicial are several: A. Notice and hearing (posted, mailed).  Right to present witnesses and evidence.  Right to cross-examination?  Right to legal argument.  Right to rebuttal.  No ex parte contacts allowed.  Rules of evidence: informal. VI. Ex-Parte Contacts A. Defined: Contacts between the applicant or opponents and the members of the Board of Adjustment outside of publicly scheduled hearings and meetings on the application. B. Why should these contacts be avoided? The consequence of engaging in such contacts can be as severe as invalidating the action of the Board. C. How can ex parte contacts be avoided? Once approached or called by the applicant or opponent and the matter is identified by them, immediately advise them that, as a Board member, it is improper for you to talk about the 5 case outside of the hearing room and urge them to bring their points of view and testimony to the hearing room. D. The prohibition extends to written materials as well: Make sure any materials you receive outside of the hearing room are copied and shared with everyone at the time of hearing. E. What to do if an ex parte contact has occurred: Disclose the contact to the Board at the beginning of the hearing; describe its content as completely as possible. If the contact was extensive, you may be required to step down and not further participate. F. Site visits: Avoid any contact with either side at the site. Even "informational" contact is still an ex parte contact. G. Contact with Staff: always permitted; it is not an ex parte contact. VII. Voting Requirements. “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.” (Code §2-53(d)) Members Present Votes Needed to Approve 8 6 7 6 6 5 5 4 If not enough votes to approve, it’s an automatic denial. All other actions are taken by majority vote of members present. VIII. General Public Hearing Overview  Chair opens public hearing  Staff presentation  Applicant presentation  Chair opens public testimony (citizen forum)  Chair closes public testimony  Questions by Board of applicant or staff; applicant summary  Chair closes the public hearing  Motion, discussion on motion, vote 6 IX. Taking Testimony Goal: That board members and public attendees leave the hearing feeling that it was fair and that their views were heard and appreciated. Explain the rules for conduct of the hearing at the outset. A. Stick to your rules on time. B. Suggest speakers don't repeat prior testimony if they can state they agree with an earlier speaker (but be patient if they don’t follow that suggestion). C. Make sure that all attendees at the public hearing know they have the right to speak D. Relaxed rules of evidence apply and hearsay is admissible: “I heard Dahl say that.” [Where Dahl is not present and cannot be cross examined.] E. It is appropriate for the Board to consider the weight and credibility of testimony. F. Don’t argue with the applicant/citizen speakers - testimony is not a dialogue. Tell citizens/applicant their question will be noted, and staff or applicant will answer after public testimony is complete. G. Thank all the speakers for appearing. X. Taking Action A. Consider all the testimony and evidence. Don't let the number of people for or against the application determine your decision. B. Compare the evidence against the standards in the Code C. Draw conclusions from the evidence D. Rely upon and state your conclusions in your motion E. “Any final determination of the board of adjustment shall be reported in writing over the signature of the chairman of such board, and a copy of such report shall be furnished the applicant, the planning commission and the city clerk. The board of adjustment shall authorize issuance of any permits, licenses or other instruments necessary to implement or enforce such determination.” F. Stick to the request before you. 7  Apply the same standards of relevance you would want to see in public testimony.  Okay to grant a smaller variance; not a larger one.  Not the time to play “let’s make a deal.” G. Amendments to Motions  Must be germane to the motion  Is a good way to add one or a series of conditions. H. Written findings of fact and resolution. Code of Laws Sec. 2-61(d). I. Conditional Approval: Conditions are perfectly appropriate, and, in fact, encouraged. You have the authority to modify the order or decision being appealed from, not merely to grant or not grant the appeal or variance. Conditions should be reasonable and should relate to the impacts of the project. J. Term; Expiration: Variances and waivers expire 180 days after being granted unless: (Code §26-1115.C.6.)  a building permit issued, before that time, or  a different term is granted in the resolution. XI. Surviving Judicial Review A. Appeals from a decision of the Board of Adjustment must be filed under Rule 106(a)(4) C.R.C.P. with the district court within 28 days of final action. Failure to do so results in dismissal of the appeal. (Code §26-115.F.; Rule 106 (a)(4) C.R.C.P.) B. Substantially improved chances if there is a preponderance of the evidence in the record on each of the required elements, and if that evidence is summarized in written findings. C. Generally, the courts will not substitute their judgment for yours unless you have clearly abused your discretion.