MINUTES
JANUARY 6, 2005 – 6:40 P.M., CITY COMMISSION MEETING ROOM, FIRST FLOOR OF CITY HALL AT SIXTH AND MASSACHUSETTS STREET, LAWRENCE, KANSAS
MEMBERS PRESENT: Goans, Herndon, Hannon, Blaufuss and Lane
STAFF PRESENT: Patterson and Saker
_______________________________________________________________________
ITEM NO. 1: COMMUNICATIONS
ITEM NO. 2: MINUTES
Multiple changes were requested to the minutes of the Dec 2004 meeting
Motioned by Mr. Herndon seconded by Mr. Hannon to approve the December 2, 2004 minutes as revised.
Motion carried, 4-0-1, with Mr. Lane abstaining due to his absence from the December meeting.
ITEM NO.3: 610 OHIO STREET
B-12-31-04: A request for variances as provided in Section 20-1709.1 of the Zoning Ordinance of the Code of the City of Lawrence, Kansas, 2003. All requests are to vary from the provisions in Section 20-1311 of said City Code, which define accessory building setback requirements. The applicant is seeking a variance to allow for a zero (0’) feet setback along the north side property line. Said section of the code requires a minimum setback of 5’ from an interior lot line. The second variance request is to allow a 2” encroachment into the minimum 4’ setback between an accessory building and the dwelling. The proposal provides a 3’-10” setback between structures. The final variance is to allow the accessory structure to be located 15’ from the front property line. Said section states that the accessory structure shall be located behind the front building line, which is 25’ in an RS-2 District. The application is for the following legally described property: The South 53.5’ of Lot 10 on Pinckney Street (now 6th Street) in the Original Townsite of the City of Lawrence. Said described property is known as 610 Ohio Street. Submitted by Chris Combs, contractor for Alan Martin, property owner of record.
STAFF PRESENTATION
Mr. Patterson introduced the item, a request to construct an accessory building that would require three variances:
An existing accessory building of about half the size of the proposed structure had been used in the past as a play area. This building had been removed and construction of the new structure had begun. It was noted that a stop-work order had been issued for the new construction, since it had been undertaken without the proper approvals (HRC, BZA) and (building) permits.
Mr. Patterson outlined Staff’s analysis of the project in terms of the five criteria. The Staff Report suggested a claim of uniqueness may be based on the size of the lot, which was smaller than other lots in RS-2 zoning, even in this neighborhood characterized by substandard lot sizes. Undue hardship could be claimed on the basis that, since work had already begun, denial would require the applicant to remove existing construction. However, this situation was created through the action of the applicant in beginning construction without approval.
Mr. Patterson noted that the proposed placement of the structure might create an encroachment over the adjacent property line, and Board did not have the authority to approve that situation. However, the property line shown in drawings provided by the applicant were unclear, so the Board was not able to determine if such an encroachment would exist.
In Staff’s opinion, the public health and safety would not be negatively impacted by approval of the request, but the convenience of adjacent property owners may be impacted.
Mr. Patterson said the 10’ reduction in the front yard setback was significant, but pointed out that the primary structure already encroached this far if not more into that setback.
It was discovered that, due to an error by the Historic Resources Administrator, a letter of approval had been sent to the applicant following his hearing before the Historic Resources Commission (HRC).
Based on Staff’s analysis, the request failed to meet all five of the required criteria and Staff therefore recommended denial of all three variance requests.
APPLICANT PRESENTATION
Cris Combs, speaking on behalf of the property owner, agreed with Staff members present that the HRC had not approved, but had deferred his case at their December 2004 meeting. He presented the approval letter he had received, but stated for the record that this letter was an incorrect statement of what had occurred at the HRC meeting.
Mr. Combs said the fact that his project would still have to obtain HRC approval was a point in favor of his variance requests. He said the HRC’s deferral had included direction to work on a revised design for the new building that would fit the environs, as well as supplying details on materials and specific dimensions. Mr. Combs was not sure how the new design would look, but said it would be modified to ensure no encroachment and no water runoff issues on adjacent properties.
Mr. Combs referenced a section of the Code that said interior lot line setbacks were not applicable to lots bordered by an alley. It was discussed that this language was typically interpreted to mean a rear alley, not a side alley as was present in this case. However, text was vague and the Board had the authority to make an interpretation of the section to apply to this property.
Mr. Combs said the purpose of the new accessory building was to house the electrical and plumbing equipment for a new hot tub, shower and sauna. He said the applicant’s inability to use his property as he wished if denied the requested variances would constitute a hardship.
The applicant said the situation was not created by the applicant, but by the limitations of the lot based on its unusually small size.
Mr. Combs took personal responsibility for not obtaining the proper permits and approvals before beginning work on the new structure. He said there had been some confusion about what elements were covered by the building permit issued for the skylights approved by the HRC earlier in 2004.
It was established that the hot tub itself was not considered a structure and did not require a building permit, despite its sturdy and sizeable appearance, because it would be installed at or below grade. However, the building required to house the associated equipment for the hot tub would constitute a structure and would require all the usual permits and inspections.
Mr. Combs responded to questioning that there had been no survey to determine the location of the true property line.
PUBLIC COMMENT
No member of the public spoke on this issue.
BOARD DISCUSSION
Chairman Goans asked if the Board was willing to consider merits of the project as proposed and not be influenced unduly by the existing state of construction begun without approval. He said the project was unique in his opinion because of the unusually small residential lot. It was discussed that different drawings supplied by the applicant indicated different lot dimensions, so the actual size of the lot was unknown.
Chairman Goans suggested that knowing the exact size of the lot was not necessary. He said the lot was obviously small enough to be considered unique and a request to encroach into the setback was reasonable. It was clarified that this did not include a request to encroach over the property line. The Board would and could not endorse that kind of encroachment.
Mr. Herndon said he thought the Board’s role was to seek ways to allow reasonable variance requests to be implemented. However he did not see how, within the Board’s parameters and according to the required five criteria, the Board could approve this application. He said this was unfortunate, because the project appeared to be “nice” and “of quality” and it seemed to “fit the neighborhood”.
Mr. Herndon spoke about the conflicting measurements on the provided drawings and the likely eave overhang into the adjoining property based on the information currently given. He expressed concern that obviously non-conforming construction had been “undertaken with no permit and with no acknowledgement of the requirements of the law.”
Mr. Herndon stated that there were “so many things wrong” with the project that, despite his “desire to preserve good work”, it was not within the Board’s ability to approve the project, “at least not without more information.”
It was suggested that, if denied, the applicant could try to obtain additional land from the adjacent property owner to bring his own project into code conformance. It was also suggested the property owner expend resources to find out where the actual property line was located.
Mr. Hannon agreed that the beginning construction looked nice and seemed to fit the area, but he shared the concerns about missing or conflicting information and the obvious encroachment of the eave into the adjoining property. He said his consideration should ignore the physical appearance of the project and look only at how it fit the regulations.
It was discussed that the Board was “repeatedly faced with applicants who have flouted the regulations” and it was the Board’s responsibility to say that was not appropriate and would not be tolerated.
Chairman Goans noted that the Board was not responsible for physically verifying the applicant met the conditions applied to approval. If the Board approved a variance within “x” distance from the property line, for example, it was not the Board’s role to survey the land to ensure “x” was correctly met. Therefore, was it necessary for the Board to know the exact dimensions of the lot?
Mr. Hannon said beginning construction without a permit was “unforgivable…“anyone in the construction business knows perfectly well” about the requirements prior to beginning work on a new structure.
Mr. Combs responded to questioning that he did not know if the applicant intended to add the proposed elements (hot tub, etc.) when he bought the property a year ago. It was suggested that the lot was unsuitable (in size) for the proposal and the applicant should have purchased a larger lot if this had been his intent.
Mr. Herndon stated that the hardship of the situation was created by the applicant when he began construction without permission, which meant the request did not meet the five criteria. Chairman Goans expressed regret that the Board was not able to consider the request separate from the issue of pre-approval construction. He suggested this created an atypical prejudice.
Mr. Herndon said he was tempted to defer the item to allow the applicant to provide detailed data, rather than flatly denying the project. He suggested additional data show the definite property line and that the encroachment was not as significant as seen in the current drawings. The revised roof line would hopefully show that water runoff onto the adjacent property was not a concern.
It was stated clearly for the benefit of the applicant that this did not guarantee approval. Mr. Combs expressed his preference for this option and stated for the record his request for deferral.
There was extensive discussion about the possible interpretation of Sec. 20-1311 to allow an elimination of the interior lot line setback requirement. It was clarified that this section was historically interpreted to refer to a rear alley, but the text did not preclude the consideration of a side alley. Several members stated an opinion that an interpretation was appropriate that would eliminate the need for the interior side lot setback variance. This was accompanied by an acknowledgment that the other two variances still needed discussion.
It was suggested that the intent of the ordinance requiring a 25’ front yard setback for accessory structures was that those buildings be located behind their primary structures. It was noted that the primary structure in this case was 15’ or less from the front property line.
There was discussion about the final variance reducing the side distance from 4’ to 3’10”. It was suggested that the overall area was characterized by intense urban development, and “mini corridors and small spaces” were commonplace.
ACTION TAKEN
Motioned by Mr. Herndon, seconded by Mr. Lane to approve the side yard and front yard setback variances as requested for the project at 610 Ohio Street, subject to the following condition:
1. No part of the accessory structure may project into or overhang the adjacent property.
DISCUSSON ON THE MOTION
It was clarified that no action was proposed for the interior side lot setback variance, based on a determination that no variance was needed per Sec. 20-1311.
Mr. Hannon expressed concern that much of this situation could have been avoided if the applicant had come forward at the appropriate time. There was discussion about the appropriateness of approving a variance for a situation that might have been preventable if the applicant designed the project differently, with knowledge of the exact property lines.
Mr. Patterson drew the Board’s attention to the Staff Report, which provided four recommended conditions as an alternative in case the Board chose to approve the variances in opposition to the Staff recommendation.
ACTION TAKEN
The motion on the floor was withdrawn.
Motioned by Mr. Herndon, seconded by Mr. Hannon to approve the side distance reduction alternative provided in the Staff Report and the front yard setback variance as requested for the project at 610 Ohio Street, subject to the following conditions as provided by Staff:
1. The structure shall be redesigned so that no part of the accessory building, including the eaves, encroaches over the property line;
2. Drainage from the accessory building shall not run onto the adjacent property;
3. Approval of the Historic Resources Commission must be obtained and all conditions of such approval must be met; and
4. All required building permits and inspections shall be obtained.
The motion was based on the following analysis of the five criteria:
1. The subject property is unique based on its unusually small size and the location of a side alley, neither of which is a situation created by the applicant;
2. Granting the variances will not adversely effect the rights of adjacent property owners because the area is characterized by intense urban development;
3. Denial of the variance would create a hardship for the applicant, since the rightful and normal use of this property is compromised by the small size of the lot;
4. The health, safety, welfare etc. of the general public will not be adversely impacted by granting the variances; and
5. Granting the variances does not oppose the general spirit and intent of the ordinance, since the accessory building will be behind the primary structure and the reduction of 2” in the side yard setback is not significant.
Motion carried unanimously, 5-0.
ITEM NO. 4: 2720 BONANZA STREET
B-12-32-04: A request for a variance as provided in Section 20-1709.1 of the Zoning Ordinance of the Code of the City of Lawrence, Kansas, 2003. Said request is specifically to vary from the provisions of Section 20-1311 of said City Code, which defines the accessory building setback requirements for accessory buildings. The applicant is asking for a variance to allow a 2’ side property line setback rather than 5’ as required by City Code, which recognizes an existing condition on the subject property. The request is made for the following legally described property: Lot 9, Block 4, Final Plat of Chaparral Addition in the City of Lawrence. Said described property is known as 2720 Bonanza Street. Submitted by Fred R. Whitehead Jr., the property owner of record.
STAFF PRESENTATION
Mr. Patterson introduced the request for a variance to bring into compliance a building that had been in place since 1977. The application followed an enforcement action by Neighborhood Resources, stemming from an anonymous complaint from a “concerned resident.”
The shed in question is located 2’ from the interior side lot line, within the required 5’ setback. Staff suggested the property was unique because most of the homes in RS-2 zoning either did not have accessory structures, or had structures that were inadequate to serve modern uses. It was noted that a large number of lots in this neighborhood had accessory building used for storage. Homes on those lots are smaller, being built in the 1960’s-70’s, and have no or only one garage.
Staff referenced the letter from the applicant explaining that the existing building was constructed without a building permit because one was not required for structures of less than 120 square feet, provided they were not equipped with electric or plumbing service.
It was verified that the total amount of square footage of all existing accessory buildings on the property combined was within the limits of the maximum allowed for a single structure.
Staff recommended approval of the variance request, based on a determination that it met all five of the required criteria.
APPLICANT PRESENTATION
Fred Whitehead Jr., property owner said he understood and agreed with all of Staff’s recommended conditions.
Mr. Whitehead explained the existing shed was built 1977. There was once another shed, which was in poor condition, located in front of the subject shed. This dilapidated structure had been removed, but Mr. Whitehead said he suspected that this structure had been the reason behind the complaint to Neighborhood Resources. When beginning construction of the subject shed in 1977, Mr. Whitehead had applied for a building permit and was told one was not needed because of the structures size. He said he had been unaware of the setback requirements.
It was established that the applicant had new neighbors.
PUBLIC COMMENT
No member of the public spoke on this item
BOARD DICSUSSION
Mr. Lane suggested alternate wording for the conditions recommended by Staff to allow maintenance but preclude enlargement of the existing structure.
It was verified that, if approved, a copy of Staff’s action letter to the applicant would be forwarded to Neighborhood Resources.
ACTION TAKEN
Motioned by Mr. Herndon, seconded by Mr. Lane to approve variance to reduce the required interior lot line setback from 5’ to 2’ for the existing structure as described in the application, based on Staff’s analysis of the five criteria and subject to the following revised conditions:
1. That the accessory building will be removed at the end of the present functional and economic lifetime, and not be enlarged or reconstructed at the present location; and
2. That any new or additional accessory buildings adhere to location requirements per City Code.
Motion carried unanimously, 5-0.
ITEM NO. 5: 315 N. EATON DRIVE
B-12-33-04: A request for a variance as provided in Section 20-1709.1 of the Zoning Ordinance of the Code of the City of Lawrence, Kansas, 2003. The subject variance is from the provisions in Section 20-608 of said City Code, which requires a minimum rear yard setback of 30’ for properties that are zoned RS-2 (Single-Family Residence) District. The applicant is seeking approval of a rear yard setback of 27.75’ to allow for a small addition on the back of the residence. The request is for the following legally described property: Lot 15, Block 2, Westwood Hills No. 3 in the City of Lawrence. The described property is located at 315 N. Eaton Drive. Submitted by Ron Faught with Medallion Homes, Inc., for Westwood, LLC, property owner of record.
This item was deferred prior to the meeting. Staff informed the Board of the applicant’s intent to withdraw this application and work on an alternate design that will meet code requirements.
ITEM NO. 6: MISCELLANEOUS
a) Consider a request for a 90-day extension of the variances granted for the proposed redevelopment of property on the corner of N 7th and Locust Streets [B-09-24-04]. The original BZA variance was granted on October 7, 2004.
Motioned by Mr. Herndon, seconded by Ms. Blaufuss to grant a 90-day extension to the variances approved for the property on the corner if N. 7th and Locust Streets.
Motion carried unanimously, 5-0.
b) Consider a request for a 90-day extension of the variances granted for the Fountains Retirement Facility at the south corner of Clinton Parkway between Crossgate and Inverness Drive [B-09-25-04]. The original BZA variance was granted on October 7, 2004.
Motioned by Mr. Hannon, seconded by Ms. Blaufuss to grant a 90-day extension to the variances approved for the Fountains Retirement Facility.
Motion carried, 4-0-1, with Mr. Herndon in abstention.
c) Consider a request for a 90-day extension of the variances granted for 830-832 Pennsylvania, 846 Pennsylvania and 716 E. 9th Street [B-08-21-04]. The original BZA variances were granted on September 9, 2004 (extension of the September 2, 2004 meeting).
Motioned by Mr. Hannon, seconded by Mr. Herndon to grant a 90-day extension to the variances approved for 830-832 Pennsylvania, 846 Pennsylvania and 716 E. 9th Street.
Motion carried 4-0-1, with Ms. Blaufuss abstaining.
d) Consider any other business to come before the Board.
Mr. Patterson extended the apologies of Staff member David Guntert, who was unable to attend the meeting due to illness.
ADJOURN – 8:30 p.m.
Official minutes are on file in the Planning Department office.