HomeMy WebLinkAboutPACKET Estes Park Board of Adjustment 2024-03-05BOARD OF ADJUSTMENT – TOWN OF ESTES PARK
170 MacGregor Avenue – Town Hall Board Room
Tuesday, March 5, 2024
9:00 a.m.
Estes Park, CO 80517
The meeting will also be live-streamed on the Town’s Youtube Channel and recorded and
posted to YouTube and www.estes.org/videos within 48 hours.
AGENDA
INTRODUCTIONS
AGENDA APPROVAL
CONSENT AGENDA:
1.Board of Adjustment Minutes November 7, 2023
PUBLIC COMMENT: Items not on the agenda (please state your name and address).
ACTION ITEMS:
1.Appointment of 2024 Officers: Chair and Vice Chair
2.Variance Request 540-550 W Elkhorn Ave Senior Planner Hornbeck
Reduce the building setback from the high-water mark to 13 feet instead of 30 feet, the
rear-yard setback to four feet instead of 10 feet and the side-yard setback to 13 feet
instead of 15 feet.
REPORTS AND DISCUSSION ITEMS:
1.Upcoming meeting items
ADJOURN
The Town of Estes Park will make reasonable accommodations for access to Town services, programs, and activities and
special communication arrangements for persons with disabilities. Please call (970) 577-4777. TDD available.
February 27, 2024 1
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Town of Estes Park, Larimer County, Colorado, November 7, 2023
Minutes of a Regular meeting of the ESTES PARK BOARD OF ADJUSTMENT of the
Town of Estes Park, Larimer County, Colorado. The meeting was held in the Town of
Estes Park on November 7, 2023.
Board: Chair Jeff Moreau, Vice-Chair Wayne Newsom, Board Member Joe Holtzman
Attending: Chair Moreau, Vice Chair Newsom, Member Holtzman, Planner I Kara
Washam, Senior Planner Hornbeck, Interim Director Jason Damweber, Town Board
Liaison Barbara MacAlpine, Recording Secretary Karin Swanlund
Absent: None
Chair Moreau called the meeting to order at 9:00 a.m.
APPROVAL OF AGENDA
It was moved and seconded (Newsom/Holtzman) to approve the agenda. The motion
passed 3-0.
APPROVAL OF CONSENT AGENDA
It was moved and seconded (Newsom/Holtzman) to approve the Consent Agenda. The
motion passed 3-0.
PUBLIC COMMENT: none
VARIANCE REQUEST 1360 B Brook Drive Planner Washam
The Water Division seeks to remodel the interior of the scale house as a dwelling for
temporary use by on-call duty staff, particularly during emergencies and inclement
weather. The on-call period of one (1) week will result in intermittent use of less than
thirty (30) days. The scale house will be solely used as on-call employee housing when
needed and will not be for lease or rent. The Applicant requests a variance to waive the
occupancy term requirement for employee housing in the I-1 (Restricted Industrial)
Zoning District under §5.2.C.2.a.(1)(c) of the Estes Park Development Code (EPDC).
Discussion:
Member Hotzman had questions for the Applicant. Jacqui Wesley, Project Manager
for the Water Division, answered that the work has not been done yet and will cost
$70,000. The privacy fence is scheduled for Phase II. Holtzman commented that the
property is dirty and disorganized and would like the Water Department to take more
responsibility for keeping the property from being an eyesore. Wesley noted that the
Prospect Mountain Water Contractor is using the site for storage and staging, and
she would request they clean up the area.
It was moved and seconded (Newsom/Moreau) to approve the variance request to
waive the occupancy term requirement for employee housing in the I-1 (Industrial)
Zoning District for the subject property addressed as 1360 B Brook Drive in the Town of
Estes Park, with findings as outlined in the staff report.
The motion passed 2-1, with Holzman voting against.
VARIANCE REQUEST 562 Driftwood Avenue Planner Washam
The Applicant requests approval of a variance to reduce the front setback along the
south property line to eight feet (8') in lieu of the fifteen feet (15') front setback
required in the R (Residential) Zone District under Section 4.3.C.4. (Table 4-2) of the
Estes Park Development Code (EPDC). The Applicant proposes constructing a 12' x
16' addition on the east side of the existing residence with a carport under the
addition.
Discussion:
Chair Moreau questioned why the variance is for 8.1 feet when one of the structure's
corners is 7.6 feet from the property line. Designer Paul Brown stated that the
building is not parallel to the property line, and the existing distance from the corner
of the house to the property line is 7.6 feet.
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It was moved and seconded (Moreau/Holtzman) to approve the variance request for
a 7.5-foot front setback in lieu of the 8.1 feet along the south property line for the subject
property addressed as 562 Driftwood Avenue in the Town of Estes Park, with findings
as outlined in the staff report. The motion passed 3-0.
REPORTS:
There are no projects in the foreseeable future; therefore, there will not be a meeting
in December.
There being no further business, Chair Moreau adjourned the meeting at 9:30 a.m.
Jeff Moreau, Chair
Karin Swanlund, Recording Secretary
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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/AGREEMENT ☐ RESOLUTION ☒ OTHER
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 buildings built in 1968 and
1970 with a total of fifteen units. The existing buildings and decks do not comply with
the 30’ river setback required 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 accommodations or related uses.
Vicinity Map
Zoning and Land Use Summary Table
Comprehensive Plan (2022) Zone Uses
Subject
Site Downtown Residential Multifamily (RM) Residential
North Downtown Commercial Outlying (CO) Accommodations
South Downtown Commercial Outlying (CO) Accommodations
East Downtown Commercial Outlying (CO) Undeveloped
West Downtown Commercial Outlying (CO) Accommodations
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Zoning Map
CO
E-1
CO-PUD
RM
A
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Site Images
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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
further into required setbacks, variances are required.
Proposed Site Plan
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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:
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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 hydraulics of 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 beneficial use 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;
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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
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this Code for the zoning district containing the 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 recommend any 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
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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 denial of 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
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3. Site Plan
4. Public Works Comment Letter
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Page 1 of 2
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,
Township 5 North, Range 73 West of the 6th 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 15’ CO Rear Lot line or Table 4-4 10’ RM Rear Lot line) and to
be 13’ from a side lot line (Table 4-5 15’ CO Side Lot line or Table 4-4 10’ 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-‘6” -6’,
as they are now. Unfortunately the current decks are already in violation of the 10’ rear yard setback and the
30’ Fall River setback. Any expansion will require a variance to both setbacks. They are requesting that the
decks be as close as 4’ to the rear lot lines and 13’ 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 15’. 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:
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Page 2 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 5’-4” to 6’. 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 4.5’ closer to the rear lot
line and the river setback. Considering the building and the decks are already within the setback, this
won’t 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 won’t 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
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PUBLIC WORKS
Page 1 | 540 & 550 W Elkhorn Ave – River setback variance
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.
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PUBLIC WORKS
Page 2 | 540 & 550 W Elkhorn Ave – River setback variance
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.
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