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HomeMy WebLinkAboutVARIANCE Setbacks 430 Prospect Village Dr 2004-08-03430 Prospect Village Drive River and Public Access Setback and Side Yard Setback Variance Request Estes Park Community Development Department Municipal Building, 170 MacGregor Avenue PO Box 1200. Estes Park, CO 80517 Phone: 970-577-3721 Fax: 970-586-0249 www.estesnet.com I. PROJECT OVERVIEW DATE OF BOA MEETING: August 3, 2004 REQUEST: The petitioner requests a 31 foot variance to a 66 foot wide platted setback to allow a 1,250 square foot (25 by 50 feet) outdoor seating area to remain 35 feet from the northern property line and approximately 12 feet from the southern bank of the Big Thompson River bank. The petitioner also requests a three foot variance to the fifteen foot side yard setback in the "CO" Outlying Commercial zoning district to allow the outdoor seating to remain twelve feet from the side (western) property line. LOCATION: The site is located at 430 Prospect Village Drive, within the Town of Estes Park. Legal Description: Lot 8, Prospect Village Subdivision PETITIONER/PROPERTY OWNER: Louis Ruiz/Louis Ruiz STAFF CONTACT: Alison Chilcott APPLICABLE LAND USE CODE: Estes Valley Development Code (EVDC) II. PROJECT DESCRIPTION/BACKGROUND The petitioner requests a 31 foot variance to a 66 foot wide platted setback to allow a 1,250 square foot (25 by 50 feet) outdoor seating area to remain 35 feet from the northern property line and approximately 12 feet from the southern bank of the Big Thompson River bank. The petitioner also requests a three foot variance to the fifteen foot side yard setback in the "CO" Outlying Commercial zoning district to allow the outdoor seating to remain twelve feet from the side (western) property line. The applicant installed outdoor carpet and fencing in the spring of 2004 to delineate a new outdoor seating area. These improvements did not require a building permit, but did require compliance with the platted setback and "CO" zoning district setbacks. Prospect Village is an eight lot subdivision, approved by the Town on April 26, 1977, which platted an "average setback for beautification and public access to the bank of the river." Lots 1, 8 and 9 fronted the river and were subject to the average setback. Lot 8 is the only lot that remains subject to this setback. An amended plat of Lot 1 was recorded in 1984 that reduced the river setback and public access easement to thirty feet. Lot 9 was amended a couple times with the final amendment recorded in 1997. This plat also reduced the river setback and public access easement to thirty feet. The width of the setback on Lot 8 varies from 59.67 feet to 97.46 feet wide. Variances to this setback were envisioned with the subdivision of this property and a staff level variance was approved to construct the existing building on Lot 8 approximately 33 feet from the river bank. Subdivision covenants reviewed by the Town state that "An average setback along the Big Thompson River shall be maintained at not less than fifty (50) feet, however, individual buildings shall be allowed as close as thirty (30) feet from the bank of said Big Thompson River on approval of the Planning Staff of the Town of Estes Park in accordance with the site plan presented at the time of annexation and zoning of the real property. No buildings, however, shall be closer than thirty (30) feet from the river bank of the Big Thompson River as measured at the time of application for a building permit." This platted setback supercedes the thirty foot river setback in the Estes Valley Development Code. As the aerial photo below shows, the prior owner of Lot 8 had outdoor seating in the river setback and public access easement, though the seating, i.e. picnic tables, was less permanent in nature. Page #2 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request III. SITE DATA AND MAPS Number of Lots One Parcel Number(s) 3525308008 Total Development Area 0.686 acres (29,882.2 sq. ft.) per plat Existing Zoning "CO" Outlying Commercial Proposed Zoning "CO" Outlying Commercial Existing Land Use Rio Azul Mexican Restaurant Proposed Land Use Same ADJACENT ZONING AND LAND USE Adjacent Zoning Adjacent Land Use North "CO" Outlying Commercial Commercial Recreation or Entertainment Establishment, Outdoor (Fun Trax) South "CO" Outlying Commercial Commercial Recreation or Entertainment Establishment, Outdoor (Aerial Tramway) East "CO" Outlying Commercial Commercial Recreation or Entertainment Establishment, Outdoor (Aerial Tramway) West "CO" Outlying Commercial Commercial Recreation or Entertainment Establishment, Outdoor (Fun Trax) Note: Adjacent land uses are determined fro site visit. SERVICES arimet County Tax Assessor website and Water Town Sewer Upper Thompson Sanitation District Fire Protection Town of Estes Park Phone Qwest LOCATION MAP 430 Prospect Village Dr. 11111 111 11111 PNIIIII IIfiIY 1111�i111im11111llll"Niiiiil11i Page #3 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request AERIAL PHOTO togolit (iyor %/l , Avllli l rJilf m ssnol River Bank Falls within Sewer Easement THOMpSON R//ER 12 Ft from Outdoor Seating to Edge of u Sewer Easement AE*40E J{7g R f( DL997R 4J Y k ACCESS N RJR HiJYslur VACATED PORTION PER ORD./ 1t-97, RECPT, D707575$ Page #4 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request OUTDOOR SEATING PHOTOS 4 ill , 4lur- ,Nifef 11"/ 44,4 4,4444„, 4;4,4 11,.',11r .4...„:„.44000).„,„,,,,dod1411111111 vir""1 ' IV. REVIEW CRITERIA All variance applications shall demonstrate compliance with the standards and criteria set forth in Chapter 3.6.0 and all other applicable provisions of the Estes Valley Development Code. This variance request does not fall within the parameters of staff level review and will be reviewed by the Estes Valley Board of Adjustment. Page #5 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request V. REFFERAL COMMENTS This request has been submitted to all applicable reviewing agency staff and adjacent property owners within 100 feet of the property for consideration and comment. The following reviewing agency staff and/or adjacent property owners submitted comments. Estes Park Public Works Department See Greg Sievers' memo to Alison Chilcott dated June 24, 2004. Town Attorney See Greg White's letter to Alison Chilcott dated June 17, 2004. Estes Park Sanitation District See James Duell's letter to Alison Chilcott dated June 21, 2004. VI. STAFF FINDINGS Staff finds: 1. Special circumstances or conditions exist (e.g., exceptional topographic conditions, narrowness, shallowness or the shape of the property) that are not common to other areas or buildings similarly situated and practical difficulty may result from strict compliance with this Code's standards, provided that the requested variance will not have the effect of nullifying or impairing the intent and purposes of either the specific standards, this Code or the Comprehensive Plan. Staff Finding: Prospect Village was an eight lot subdivision created in 1977. Lots 1, 8 and 9 fronted the river and were subject to the average setback. Lot 8 is the only lot that remains subject to this setback. This setback may be greater than the Town needs to design a public trail in the area; however, trail designs are not complete at this time. The existing outdoor seating encroaches into the western side yard setback and the new outdoor seating area follows the same building line. 2. In determining "practical difficulty," the BOA shall consider the following factors: a. Whether there can be any beneficial use of the property without the variance. Page #6 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request Staff Finding: There can be a beneficial use of the property without the variance. The restaurant can continue to be operated without the outdoor seating. b. Whether the variance is substantial. Staff Finding: The is a request for a 31 foot variance to a 66 foot wide platted setback to allow a 1,250 square foot (25 by 50 feet) outdoor seating area to remain approximately 12 feet from the southern bank of the Big Thompson River bank. This is substantial. This is also a request for a three foot variance to the fifteen foot side yard setback in the "CO" Outlying Commercial zoning district. This is a twenty percent variance which is substantial. Approval of the variance requests on a seasonal and temporary basis only would reduce the long-term impact of variance approval. Also the outdoor seating area is not parallel with the side lot line so only a small portion encroaches into the side yard setback. c. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance. Staff Finding: The proposed addition will not substantially alter the essential character of the neighborhood. Adjoining property owners have not contacted staff to comment on this proposal and staff is not aware of their opinions about the variance request. d. Whether the variance would adversely affect the delivery of public services such as water and sewer. Staff Finding: The variance will not affect the delivery of public services. e. Whether the Applicant purchased the property with knowledge of the requirement. Staff Finding: The applicant purchased the property in 2003. Since the EVDC and plat showing the average river and public access setback were of public record at that time, the applicant purchased the property with knowledge of the requirements. Page #7 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request f. Whether the Applicant's predicament can be mitigated through some method other than a variance. Staff Finding: The applicant's predicament can be mitigated through some method other than a variance. Outdoor seating could be placed east of the building and outside the setback. 3. No variance shall be granted if the submitted conditions or circumstances affecting the Applicant's property are of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situations. Staff Finding: The submitted conditions or circumstances affecting the applicant's property are not of so general or recurrent a nature as to make reasonably practicable the foiiuulation of a general regulation for such conditions or situations. 4. No variance shall be granted reducing the size of lots contained in an existing or proposed subdivision if it will result in an increase in the number of lots beyond the number otherwise permitted for the total subdivision, pursuant to the applicable zone district regulations. Staff Finding: The variance, if granted, will not reduce the size of the lot. 5. If authorized, a variance shall represent the least deviation from the regulations that will afford relief. Staff Finding: The variance, if granted, offers the least deviation from the regulations that will afford relief to allow the outdoor seating area to remain. 6. Under no circumstances shall the BOA grant a variance to allow a use not permitted, or a use expressly or by implication prohibited under the terms of this Code for the zone district containing the property for which the variance is sought. Staff Finding: The use is permitted. 7. In granting this variance, the BOA may require such conditions as will, in its independent judgment, secure substantially the objectives of the standards varied or modified. Page #8 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request Staff recommends that variance approval be a seasonal approval only. Each year the outdoor seating, including, but not limited to fencing, outdoor carpet, tables and chairs, should be installed no early than May 1st and should be removed by October 1st. Staff also recommends that the approval be temporary. Staff can require removal of the outdoor seating, including, but not limited to fencing, outdoor carpet, tables and chairs, with thirty days written notice for reasons including occupying the public easement. Staff also recommends that any Building Code violations associated with the new outdoor seating area be corrected within 30 days of Board of Adjustment approval. The new steps to the outdoor seating area and the lack of a railing next to the steps may be Code violations. 8. This request has been submitted to all applicable reviewing agency staff for consideration and comment. All letters and memo's submitted by reviewing agency staff, referred to in Section V of this staff report, are incorporated as staff findings. 9. Per EVDC §3.6.D, failure of an applicant to apply for a building permit and commence construction or action with regard to the variance approval within one (1) year of receiving approval of the variance shall automatically render the decision of the Board of Adjustment null and void. VII. STAFF RECOMMENDATION Staff recommends APPROVAL of the requested variance for the existing outdoor seating to remain in its current location on a seasonal and temporary basis CONDITIONAL TO: 1. A registered land surveyor shall provide an improvement location certificate which includes the outdoor seating by August 6, 2004. By May 15th of each year a registered land surveyor shall provide a setback certificate verifying that the outdoor seating is in the location shown on the improvement location certificate. 2. This is a seasonal approval only. Each year the outdoor seating, including, but not limited to fencing, outdoor carpet, tables and chairs, shall be installed no early than May 1st and shall be removed by October 1st Page #9 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request 3. This is a temporary approval only. Town staff can require removal of the outdoor seating, including, but not limited to fencing, outdoor carpet, tables and chairs, with thirty days written notice for reasons including occupying the public easement. 4. Any Building Code violations associated with the new outdoor seating area shall be corrected within 30 days of Board of Adjustment approval. If the Board chooses to recommend DENIAL staff recommends the following condition. 1. Removal of the outdoor seating area, including, but not limited to fencing, outdoor carpet, tables and chairs, within thirty days of Board of Adjustment variance denial. Page #10 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request 430 Prospect Village Drive River and Public Access Setback and Side Yard Setback Variance Request Estes Park Community Development Department Municipal Building, 170 MacGregor Avenue PO Box 1200 MINNIMNI Estes Park, CO 80517 Phone: 970-577-3721 Fax: 970-586-0249 www.estesnet.com . PROJECT OVERVIEW DATE OF BOA MEETING: July 13, 2004 REQUEST: The petitioner requests a 31 foot variance to a 66 foot wide platted setback to allow a 1,250 square foot (25 by 50 feet) outdoor seating area to remain 35 feet from the northern property line and approximately 12 feet from the southern bank of the Big Thompson River bank. The petitioner also requests a three foot variance to the fifteen foot side yard setback in the "CO" Outlying Commercial zoning district to allow the outdoor seating to remain twelve feet from the side (western) property line. LOCATION: The site is located at 430 Prospect Village Drive, within the Town of Estes Park. Legal Description: Lot 8, Prospect Village Subdivision PETITIONER/PROPERTY OWNER: Louis Ruiz/Louis Ruiz STAFF CONTACT: Alison Chilcott APPLICABLE LAND USE CODE: Estes Valley Development Code (EVDC) II. PROJECT DESCRIPTION/BACKGROUND The petitioner requests a 31 foot variance to a 66 foot wide platted setback to allow a 1,250 square foot (25 by 50 feet) outdoor seating area to remain 35 feet from the northern property line and approximately 12 feet from the southern bank of the Big Thompson River bank. The petitioner also requests a three foot variance to the fifteen foot side yard setback in the "CO" Outlying Commercial zoning district to allow the outdoor seating to remain twelve feet from the side (western) property line. The applicant installed outdoor carpet and fencing in the spring of 2004 to delineate a new outdoor seating area. These improvements did not require a building permit, but did require compliance with the platted setback and "CO" zoning district setbacks. Prospect Village is an eight lot subdivision, approved by the Town on April 26, 1977, which platted an "average setback for beautification and public access to the bank of the river." Lots 1, 8 and 9 fronted the river and were subject to the average setback. Lot 8 is the only lot that remains subject to this setback. An amended plat of Lot 1 was recorded in 1984 that reduced the river setback and public access easement to thirty feet. Lot 9 was amended a couple times with the final amendment recorded in 1997. This plat also reduced the river setback and public access easement to thirty feet. The width of the setback on Lot 8 varies from 59.67 feet to 97.46 feet wide. Variances to this setback were envisioned with the subdivision of this property and a staff level variance was approved to construct the existing building on Lot 8 approximately 33 feet from the river bank. Subdivision covenants reviewed by the Town state that "An average setback along the Big Thompson River shall be maintained at not less than fifty (50) feet, however, individual buildings shall be allowed as close as thirty (30) feet from the bank of said Big Thompson River on approval of the Planning Staff of the Town of Estes Park in accordance with the site plan presented at the time of annexation and zoning of the real property. No buildings, however, shall be closer than thirty (30) feet from the river bank of the Big Thompson River as measured at the time of application for a building permit." This platted setback supercedes the thirty foot river setback in the Estes Valley Development Code. As the aerial photo below shows, the prior owner of Lot 8 had outdoor seating in the river setback and public access easement, though the seating, i.e. picnic tables, was less permanent in nature. Page #2 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request III. SITE DATA AND MAPS Number of Lots One Parcel Number(s) 3525308008 Total Development Area 0.686 acres (29,882.2 sq. ft.) per plat Existing Zoning "CO" Outlying Commercial Proposed Zoning "CO" Outlying Commercial Existing Land Use Rio Azul Mexican Restaurant Proposed Land Use Same ADJACENT ZONING AND LAND USE Adjacent Zoning Adjacent Land Use North "CO" Outlying Commercial Commercial Recreation or Entertainment Establishment, Outdoor (Fun Trax) South "CO" Outlying Commercial Commercial Recreation or Entertainment Establishment, Outdoor (Aerial Tramway) East "CO" Outlying Commercial Commercial Recreation or Entertainment Establishment, Outdoor (Aerial Tramway) West "CO" Outlying Commercial Commercial Recreation or Entertainment Establishment, Outdoor (Fun Trax) Note: Adjacent land uses are determined from Larimer County Tax Assessor website and site visit. SERVICES Water Town Sewer Upper Thompson Sanitation District Fire Protection Town of Estes Park Phone Qwest LOCATION MAP S 36 Moraine Av ll�llllll llllulllll llll l 1""' fl' u,i�g,ul� 1�11111Ijlllll 11 if �il� lull 11 Ilil 11111111 II iv 111111111 430 Prospect Village Dr. Page #3 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request sp.im River Bank Falls within Sewer Easement THOMpSON RA/ER" ben... 12 Ft from Outdoor Seating to Edge of u Sewer Easement ACCESS TO RFfZ. str5r.. X C71Jr MCA PORIXA/ PM ORO./ If-97, RECK R7073756 Page #4 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request OUTDOOR SEATING PHOTOS "11)5 - ' 5W/55,/ IV. REVIEW CRITERIA All variance applications shall demonstrate compliance with the standards and criteria set forth in Chapter 3.6.0 and all other applicable provisions of the Estes Valley Development Code. This variance request does not fall within the parameters of staff level review and will be reviewed by the Estes Valley Board of Adjustment. Page #5 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request V. REFFERAL COMMENTS This request has been submitted to all applicable reviewing agency staff and adjacent property owners within 100 feet of the property for consideration and comment. The following reviewing agency staff and/or adjacent property owners submitted comments. Estes Park Public Works Department See Greg Sievers' memo to Alison Chilcott dated June 24, 2004. Town Attorney See Greg White's letter to Alison Chilcott dated June 17, 2004. Estes Park Sanitation District See James Duell's letter to Alison Chilcott dated June 21, 2004. VI. STAFF FINDINGS Staff finds: 1. Special circumstances or conditions exist (e.g., exceptional topographic conditions, narrowness, shallowness or the shape of the property) that are not common to other areas or buildings similarly situated and practical difficulty may result from strict compliance with this Code's standards, provided that the requested variance will not have the effect of nullifying or impairing the intent and purposes of either the specific standards, this Code or the Comprehensive Plan. Staff Finding: Prospect Village was an eight lot subdivision created in 1977. Lots 1, 8 and 9 fronted the river and were subject to the average setback. Lot 8 is the only lot that remains subject to this setback. This setback may be greater than the Town needs to design a public trail in the area; however, trail designs are not complete at this time. The existing outdoor seating encroaches into the western side yard setback and the new outdoor seating area follows the same building line. 2. In determining "practical difficulty," the BOA shall consider the following factors: a. Whether there can be any beneficial use of the property without the variance. Page #6 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request Staff Finding: There can be a beneficial use of the property without the variance. The restaurant can continue to be operated without the outdoor seating. b. Whether the variance is substantial. Staff Finding: The is a request for a 31 foot variance to a 66 foot wide platted setback to allow a 1,250 square foot (25 by 50 feet) outdoor seating area to remain approximately 12 feet from the southern bank of the Big Thompson River bank. This is substantial. This is also a request for a three foot variance to the fifteen foot side yard setback in the "CO" Outlying Commercial zoning district. This is a twenty percent variance which is substantial. Approval of the variance requests on a seasonal and temporary basis only would reduce the long-term impact of variance approval. Also the outdoor seating area is not parallel with the side lot line so only a small portion encroaches into the side yard setback. c. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance. Staff Finding: The proposed addition will not substantially alter the essential character of the neighborhood. Adjoining property owners have not contacted staff to comment on this proposal and staff is not aware of their opinions about the variance request. d. Whether the variance would adversely affect the delivery of public services such as water and sewer. Staff Finding: The variance will not affect the delivery of public services. e. Whether the Applicant purchased the property with knowledge of the requirement. Staff Finding: The applicant purchased the property in 2003. Since the EVDC and plat showing the average river and public access setback were of public record at that time, the applicant purchased the property with knowledge of the requirements. Page #7 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request Whether the Applicant's predicament can be mitigated through some method other than a variance. Staff Finding: The applicant's predicament can be mitigated through some method other than a variance. Outdoor seating could be placed east of the building and outside the setback. 3. No variance shall be granted if the submitted conditions or circumstances affecting the Applicant's property are of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situations. Staff Finding: The submitted conditions or circumstances affecting the applicant's property are not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situations. 4. No variance shall be granted reducing the size of lots contained in an existing or proposed subdivision if it will result in an increase in the number of lots beyond the number otherwise permitted for the total subdivision, pursuant to the applicable zone district regulations. Staff Finding: The variance, if granted, will not reduce the size of the lot. 5. If authorized, a variance shall represent the least deviation from the regulations that will afford relief. Staff Finding: The variance, if granted, offers the least deviation from the regulations that will afford relief to allow the outdoor seating area to remain. 6. Under no circumstances shall the BOA grant a variance to allow a use not permitted, or a use expressly or by implication prohibited under the terms of this Code for the zone district containing the property for which the variance is sought. Staff Finding: The use is permitted. 7. In granting this variance, the BOA may require such conditions as will, in its independent judgment, secure substantially the objectives of the standards varied or modified. Page #8 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request Staff recommends that variance approval be a seasonal approval only. Each year the outdoor seating, including, but not limited to fencing, outdoor carpet, tables and chairs, should be installed no early than May lst and should be removed by October 1st. Staff also recommends that the approval be temporary. Staff can require removal of the outdoor seating, including, but not limited to fencing, outdoor carpet, tables and chairs, with thirty days written notice for reasons including occupying the public easement. 8. This request has been submitted to all applicable reviewing agency staff for consideration and comment. All letters and memo's submitted by reviewing agency staff, referred to in Section V of this staff report, are incorporated as staff findings. 9. Per EVDC §3.6.D, failure of an applicant to apply for a building permit and commence construction or action with regard to the variance approval within one (1) year of receiving approval of the variance shall automatically render the decision of the Board of Adjustment null and void. VII. STAFF RECOMMENDATION Staff recommends APPROVAL of the requested variance for the existing outdoor seating to remain in its current location on a seasonal and temporary basis CONDITIONAL TO: 1. A registered land surveyor shall provide an improvement location certificate which includes the outdoor seating by August 6, 2004. By May 15th of each year a registered land surveyor shall provide a setback certificate verifying that the outdoor seating is in the location shown on the improvement location certificate. 2. This is a seasonal approval only. Each year the outdoor seating, including, but not limited to fencing, outdoor carpet, tables and chairs, shall be installed no early than May 1st and shall be removed by October 1st 3. This is a temporary approval only. Town staff can require removal of the outdoor seating, including, but not limited to fencing, outdoor carpet, tables and chairs, with thirty days written notice for reasons including occupying the public easement. Page #9 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request If the Board chooses to recommend DENIAL staff recommends the following condition. 1. Removal of the outdoor seating area, including, but not limited to fencing, outdoor carpet, tables and chairs, within thirty days of Board of Adjustment variance denial. Page #10 — 430 Prospect Village Drive River and Public Access Setback Variance and Side Yard Setback Request