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HomeMy WebLinkAboutVARIANCE River Setback Elkhorn Plaza Condos 2024-03-05 Community Development Memo To:Chair Jeff Moreau Estes Park Board of Adjustment Through: Steve Careccia, Community Development Director From: Paul Hornbeck, Senior Planner Date: March 5, 2024 Application: Variance Request for River Setback, Rear Setback, and Side Setback 540 & 550 W. Elkhorn Avenue Erik Mankin, Elkhorn Plaza Home Owners Association, Applicant Joe Coop, Van Horn Engineering, Consultant Recommendation: Staff recommends the Board of Adjustment deny the variance request, subject to the findings described in the report. Land Use: 2022 Estes Forward Comprehensive Plan Designation: (Future Land Use): Commercial Downtown Zoning District: Residential Multifamily (RM) Site Area: 0.81 Acres (+/- 35,284 SF) PUBLIC HEARING ORDINANCE LAND USE CONTRACT/AGREEMENTRESOLUTIONOTHER QUASI-JUDICIAL YES NO Objective: Hold a public hearing to consider three variance requests from the Estes Park Development Code (EPDC) related to the construction of new decks at 540 and 550 West Elkhorn Avenue. Background: The subject property contains two multifamily condominium buildingsbuilt in 1968 and 1970 with a total of fifteen units. The existing buildings and decks do not comply with the 30’ river setbackrequired by EPDC Sec. 7.6.E(2)(b) which requires a 30’ setback from the annual high-water mark of rivers. Additionally, a small portion of one deck does not comply with the 10’ rear setback. The buildings and decks are considered legal non- conforming as they predate existing standards. Location and Context: The 0.81-acre lot is located at 540 and 550 West Elkhorn Avenue, on a private drive approximately 350’ west of West Elkhorn Avenue. The subject property is zoned Residential Multifamily (RM) and all adjacent properties are zoned Accommodations(A) All adjacent parcels are accommodationsor related uses. Vicinity Map Zoning and Land Use Summary Table Comprehensive Plan (2022) Zone Uses Subject DowntownResidential Multifamily (RM)Residential Site North Downtown Commercial Outlying (CO) Accommodations South Downtown Commercial Outlying (CO) Accommodations East Downtown Commercial Outlying (CO) Undeveloped West Downtown Commercial Outlying (CO) Accommodations 2 Zoning Map E-1 A CO CO-PUD RM 3 Site Images 4 Variance Description The Applicant, Elkhorn Plaza Home Owners Association, seeks to replace existing decks with new, larger decks. The statement of intent indicates the existing decks are over 50 years old and are 5’6” to 6’ wide. The applicant desires to construct new decks with a 10’ width to provide more usable space. The decks could be replaced within the existing footprint without the need for variances as they are considered legal non- conforming. However, since the new decks are desired to be larger and encroach furtherinto required setbacks, variances are required. Proposed Site Plan 5 The applicant requests the following variances: 1. A variance from EPDC Sec. 7.6.E(2)(b) which requires a 30’ setback from the annual high-water mark of the river. The proposed decks would be constructed as close as 13’ from the highwater mark of the Fall River rather than the required 30’. 2. A variance from EPDC Table 4-2 which requires a 10’ rear setback in the RM zone district. The proposed decks would be constructed as close as 4’ from the rear lot line rather than the required 10’. 3. The new deck proposed with Building B would have a side setback of 13’ and the existing setback requirement is 10’; however, a concurrent application requesting to rezone the property to Commercial Outlying (CO) would increase the side setback requirement to 15’. Therefore, the applicant is requesting a variance from EPDC Table 4-5 which requires a 15’ side setback in the CO zone district. The proposed decks would be constructed as close as 13’ from the east lot line rather than the required 15’. However, the variance is only applicable if the current rezoning is approved. Project Analysis Review Criteria: The Board of Adjustment (BOA) is the decision-making body for variance requests. In accordance with EPDC Section 3.6.C., Variances, Standards for Review, applications for variances shall demonstrate compliance with the applicable standards and criteria contained therein. The Standards with staff findings for each are as follows: 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. 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:There do not appear to be special circumstances or conditions unique to this lot. Many structures in the Fall River corridor are located in similarly close proximity to the river. The requested variances may have the effect of nullifying or impairing the intent and purposes of Section 7.6 of the Development Code – Wetlands and Stream Corridor Protection. The purpose and intent of that section is described as: 6 The following requirements and standards are intended to promote, preserve and enhance the important hydrologic, biological, ecological, aesthetic, recreational and educational functions that stream and river corridors, associated riparian areas and wetlands provide. The hydraulic function of the river corridor could be negatively impacted by the variance. The hydraulicsof a river refer to the depth, velocity, and direction of flow. The proposed decks would not impact the hydraulics of the river in normal conditions but could potentially impact river hydraulics in a severe flood. The Town’s Floodplain Administrator Jennifer Waters has reviewed the requested variance and states Public Works does not recommend approval of a river setback variance. Further, Ms. Waters states: Flood hazard. Even though the Special Flood Hazard Area (SFHA) floodway boundary is about 16 feet from the existing condo structure at 540 W Elkhorn Ave, the risks associated with flooding are present. Water depth is not the only measure of danger during a flood. Water velocity and floating debris carried by floodwaters are likely to create hazardous conditions during a flash flood on the Fall River. The biological and ecological functions of the river corridor could also be negatively impacted by further encroaching into the corridor which is likely used by wildlife. There would be little to no impact on the aesthetic, recreational and educational functions of the river corridor. 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; Staff Finding:There is beneficialuse of the property without the variance and if the decks need replacing, they could be rebuilt in the same footprint without a variance. As such, residents will continue to have use of the property and outdoor decks that they have enjoyed in the past. b. Whether the variance is substantial; Staff Finding: From a numerical perspective two of the variances are fairly substantial (the 13’ setback from the highwater mark of the river rather than the required 30’ and for a 4’ setback from the rear lot line rather than the required 10’). 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; 7 Staff Finding:The essential character of the neighborhood will not be substantially altered with the proposed decks. The decks are well screened by existing vegetation. Adjoining properties could suffer a substantial determent should the decks alter hydraulic function of the river in a flood. d. Whether the variance would adversely affect the delivery of public services such as water and sewer. Staff Finding: The placement of the decks will not impact delivery of public services. e. Whether the Applicant purchased the property with knowledge of the requirement; Staff Finding: There are 15 different owners of the units. It is unknown if they had awareness of the setback requirements, but residents have had historical access to the existing decks, and can continue to enjoy deck access even without the variances. f. Whether the Applicant's predicament can be mitigated through some method other than a variance. Staff Finding: The Applicant cannot increase the size of the decks through any method other than a variance but the decks could remain in place or be rebuilt in- kind. 2. 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: Not applicable. 3. 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: Not applicable. 4. If authorized, a variance shall represent the least deviation from the regulations that will afford relief. Staff Finding: Rebuilding the decks within the existing footprint would be the least deviation from the required setbacks. 5. 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 8 this Code for the zoningdistrict containingthe property for which the variance is sought. Staff Finding: Not applicable. 6. In granting such variances, the BOA may require such conditions as will, in its independent judgment, secure substantially the objectives of the standard so varied or modified. Staff Finding: Staff does not recommendany conditions. Review Agency Comments The application was referred to all applicable review agencies for comment. Public Works is opposed to the variance request (comments attached). No concerns or opposition were received from other agencies. Public Notice Staff provided public notice of the application in accordance with EPDC noticing requirements. As of the time of writing this report, Staff has received no inquiries regarding the variance request. Written notice mailed to adjacent property owners on February 14, 2024. Legal notice published in the Estes Park Trail-Gazette on February 16, 2024. Application posted on the Town's "Current Applications" website. Sign posted on the property by the applicant on February 19, 2024 9 Advantages This variance would allow the Applicant to construct to replace the existing decks with larger decks with more usable space. Disadvantages Potential disadvantages include increased flood hazard and negative impacts to the hydraulic, biological, and ecological functions of the river corridor. Action Recommended Staff recommends denialof the proposed variances described in this staff report. Finance/Resource Impact N/A Level of Public Interest Little or none. Sample Motions I move to deny the variance requests with the with findings as outlined in the staff report. I move to approve the variance requests for a 13’ setback from the highwater mark of the river, a 4’ rear setback from the north property line, and a 13’ side setback from the east property line for the subject property addressed as 540 and 550 West Elkhorn Avenue, with the following findings: 1. \[state reason/findings in support of approval\]. 2. The side setback from the east lot of 13’ rather than the required 15’ is applicable only if the rezoning to CO is approved. I move to approve the variance requests for a 13’ river setback, 4’ rear setback from the north property line, and 13’ side setback from the east property line for the subject property addressed as 540 and 550 West Elkhorn Avenue, with conditions \[state conditions\] and with the following findings: 1.\[state reason/findings in support of approval\]. 2. The side setback from the east lot of 13’ rather than the required 15’ is applicable only if the rezoning to CO is approved. I move that the Board of Adjustment continue the variance to the next regularly scheduled meeting, finding that \[state reasons for continuance\]. Attachments 1. Application 2. Statement of Intent 10 3.Site Plan 4. Public Works Comment Letter 11 STATEMENT OF INTENT VARIANCE REQUEST THE ELKHORN PLAZA ASSOCIATION Being a portion of the Northeast Quarter of Section 26, and the Northwest Quarter of Section 25, th Township 5 North, Range 73 West of the 6 P.M., Town of Estes Park, Larimer County, Colorado. January 26, 2024 PROJECT LOCATION: 540 and 550 West Elkhorn Avenue OWNER: Elkhorn Plaza Association VARIANCE: A variance to be as close as 13' from the highwater mark of the Fall River (Section 7.6.E.1.a.2.b), to be 4' from a rear lot line (Table 4-5 15Ó CO Rear Lot line or Table 4-4 10Ó RM Rear Lot line) and to be 13Ó from a side lot line (Table 4-5 15Ó CO Side Lot line or Table 4-4 10Ó RM Side Lot line) as shown on the site plan. PROJECT DESCRIPTION FOR THE ELKHORN PLAZA ASSOCIATION: This variance request came about when the Home Owners Association of the Elkhorn Plaza Condominiums decided it was time to replace their decks. The decks are over 50 years old now and in need of replacement. The condominiums were built in 1968 and 1970. The decks are a little small by current standards, so the owners would like to rebuild the decks a little bigger, ten feet wide, as opposed to replacing them at 5-Ò6Ñ -6Ó, as they are now. Unfortunately the current decks are already in violation of the 10Ó rear yard setback and the 30Ó Fall River setback. Any expansion will require a variance to both setbacks. They are requesting that the decks be as close as 4Ó to the rear lot lines and 13Ó to the approximate highwater mark of the Fall River as shown on the accompanying site plan. This variance application is in process simultaneously with a rezoning application to rezone the property from RM to CO. If the rezoning request is approved, then the setback on the rear line will increase to 15Ó. We would like to request the variance to apply to both zoning possibilities. If the variance is approved, an amended condominium map will need to be prepared to accommodate for the increase in the Limited Common Elements for each unit. Along with the amended condominium map, a follow-on request will be a lot consolidation of the two building lots and the vacant lot on the north side of the condominiums that is owned by the association. This lot consolidation process would be done with the amended condominium map process. If the lot consolidation is approved with the amended condominium map, then the setback variances to the rear lot lines in this variance request will no longer be needed. If the variance request is approved the amended condominium map will be submitted at the same time as the building permit for the decks. In summary, the owners are trying to clean up their condominium property and documentation while doing this deck remodel. In determining Practical Difficulty, the Board of Adjustment shall consider the following factors: Page 1 of 2 A. Whether there can be any beneficial use of the property without the variance; The current decks could be replaced with only a permit and without a variance, however the decks are small. They vary from 5Ó-4Ñ to 6Ó. They are large enough for only a chair or two and a small table. The owners would like to have a larger table and chairs for dining, relaxing or entertaining outside. Modern houses and condo units have larger decks and ten feet is a reasonable size. B. Whether the variance is substantial; The variance is requesting to be up to 4.5Ó closer to the rear lot line and the river setback. Considering the building and the decks are already within the setback, this wonÓt appear to be a significant change. The rear lot setback is a setback to their own vacant piece of land. If the zoning request and the lot consolidation with the amended condominium map process is approved, then the rear yard setbacks wonÓt even be a concern. 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; The deck extension would still be out of the 100 year regulatory floodzone and screened from the neighbors by the existing vegetation. None of the tree and shrub vegetation would need to be removed for the deck extension. There is already a unit and a deck there. A slightly larger deck will not change the character of the neighborhood. D. Whether the variance would adversely affect the delivery of public services such as water and sewer; The Variance would not affect the delivery of public utilities. The private sewer, water and gas services are close to the deck extension, but they can be avoided with the deck piers or relocated if necessary. There is currently an aerial main phone line that will be about two feet from the deck but it is in process of being relocated underground in the front of the buildings. E. Whether the Applicant purchased the property with knowledge of the requirement; There are several applicants within the HOA (15 units). The knowledge of the code and whether they met setbacks or could do a deck extension was likely not a factor in their purchases. Time has changed the desire for outdoor living and most new houses have larger decks, however these buildings were built in 1968 or 1970 before the modern zoning code when there were no river setbacks. The building location was not a burden they created and they are not asking for a significant variance. F. Whether the Applicant's predicament can be mitigated through some method other than a variance. The deck extension could not be mitigated without excessive costs. Relocating the building would be the first thought and that is not realistic. Building decks off the front would not be realistic either since the unit layout is not conducive to that possibility without major remodeling. Any method to resolve the predicament would not be cost effective. Thank you for your consideration of this variance request, Sincerely, Joseph W Coop, Van Horn Engineering Page 2 of 2 PUBLIC WORKS PUBLIC WORKS 540 & 550 W Elkhorn Ave Application to Board of Adjustment for Setback Variances Public Works Comments February 14, 2024 SUMMARY A Pre-App for the proposed project was held on November 30, 2023. The following documents were submitted in support of the application: Site Plan by Van Horn Engineering and Surveying (1/25/24) Statement of Intent (1/26/24) Separately submitted: Application for Rezoning Petition (from RM to CO) Project Description: Two 1970s-era condominium buildings with 15 units include rear balcony-style decks for which the applicant seeks permission to rebuild larger decks. The two-story structures are side-by-side near the Fall River although none of the structures is in the Special Flood Hazard Area (SFHA). Larger decks would extend closer to the Fall River. Public Works Review Criteria: o Estes Park Development Code (EPDC), Chapter 7 – General Development Standards o Estes Park Municipal Code (EPMC), Chapter 18.04 – Floodplain Regulations Public Works recommends a minimum rear setback variance as the remedy for the existing decks. Under current RM zoning or with CO rezoning, the existing small decks are non-conforming encroachments in the rear setbacks associated with each zoning. Public Works does not recommend approval of a river setback variance to accommodate construction of larger decks that are closer to the Fall River. The existing small decks are non-conforming encroachments closer than 30 feet to the Fall River. Regardless of RM or CO zoning, new larger decks would require approval of a greater variance to the 30-feet setback from the Fall River. Public Works recommends the minimum river corridor setback variance as the remedy for existing decks. Page 1 | 540 & 550 W Elkhorn Ave – River setback variance PUBLIC WORKS PUBLIC WORKS ANALYSIS In Chapter 7.6 – Wetlands and Stream Corridor Protection, Section E. 1. a. (2)(b) requires that all buildings and accessory structures shall be set back at least thirty (30) feet horizontally (plan view) from the annual high-water mark of river corridors or, if not readily discernible, from the defined bank of the river. The “approximate highwater line” shown on the Site Plan is acceptable as the annual high-water mark referenced in (2)(b). Purpose of setback areas. The purposes of the River Corridor setback are (1) to help protect the riparian areas from development, and (2) to help protect people and structures from the flood hazard risk in the river corridor. Building new decks closer to the Fall River compromises both of these purposes. Flood hazard. Even though the SFHA floodway boundary is about 16 feet from the existing condo structure at 540 W Elkhorn Ave, the risks associated with flooding are present. Water depth is not the only measure of danger during a flood. Water velocity and floating debris carried by floodwaters are likely to create hazardous conditions during a flash flood on the Fall River. Acknowledgment of nearby deck (552 W Elkhorn Ave). The Maxwell Inn Annex across the Fall River from the Elkhorn Plaza Condos is entirely in the floodway of the SFHA. An end unit includes a small balcony deck that almost overhangs the Fall River. The existing structure’s renovation project was in the works prior to adoption of the current floodway boundary referenced in Section 18.04.040 of the Floodplain Regulations. There is no doubt that the flood hazard risk is significant at this hotel property. Page 2 | 540 & 550 W Elkhorn Ave – River setback variance