HomeMy WebLinkAboutVARIANCE Setback for ROW 113 E Elkhorn Ave 2020-09-01
COMMUNITY DEVELOPMENT
Memo
To: Chair Jeff Moreau
Estes Park Board of Adjustment (BOA)
Through: Community Development Director Randy Hunt
From: Alex Bergeron, Planner II
Date: September 1, 2020
RE: Setback Variance for 113 E. Elkhorn Avenue
Objective:
Conduct a public hearing to consider and make a decision on a variance request to
reduce a minimum front setback from eight feet to zero feet to allow a right-of-way
(ROW) vacation for an existing building encroachment and to permit an addition to the
building against the west property line.
Location:
113 E. Elkhorn Avenue, legally described as: LOT 16A, AMD LOTS 15, 16 & 17, BLK 2,
2ND AMD BLK 2, EP and further identified with Parcel Number 3525156016.
Present Situation:
The Property as defined above (see also Attachment 1: Vicinity Map) features a 100-
year-old building which currently encroaches eight feet into the Town’s ROW on the
west side of the lot (see Attachment 2: Site Plan). Because the building is situated at the
corner of Big Horn Drive and E. Elkhorn Avenue, both the south and west property lines
have a minimum setback of eight feet (Estes Park Development Code \[EPDC\]
§1.9.D.1\[c\] and EPDC Table 4-5). The ROW encroachment, then, represents a non-
conformity of 16 feet on the west property line, which this variance request attempts to
help resolve.
Proposal:
It is proposed that the BOA grant a variance to the minimum setback required on the
west property line of the parcel to allow a zero-foot setback. For practical reasons, the
variance is conditional on the Town Board voting favorably to vacate the ROW which
currently features the building encroachment because providing for a zero-foot setback
would not be functionally realized if a portion of the building continues to extend beyond
that the property line. If the variance is approved, it is proposed that an addition to the
building be built along the property line to house a taproom.
This addition is also dependent on ROW vacation because the ROW encroachment
effectively prohibits modification of the building. Section 12.08.040 of the Municipal
Code, which deals with obstruction of public ROWs, requires that if any existing building
obstructing the street/sidewalk is "remodeled or materially altered," obstructions shall be
removed. Town staff and the applicants have discussed the ROW vacation, and at this
time there are no apparent reasons why the small section of ROW cannot be vacated.
The final vacation decision rests with the Town Board.
It will be proposed by Staff that as a condition of ROW vacation, any development plan
approval for a modification to the building (or building permit issuance if no development
plan is required), including the proposed Lumpy Ridge Taproom, must be contingent on
installation of curb and gutter on the lot’s Big Horn Drive frontage, where none exists
now.
Review Criteria:
The Board of Adjustment is the decision-making body for this application. In accordance
with EPDC §3.6.C. (Variances – Standards for Review), applications for variances shall
demonstrate compliance with the applicable standards and criteria contained therein.
Staff findings on these standards and criteria are outlined below:
§3.6.C.1: Special circumstances or conditions exist. Affirmative. Encroachment of a
building into the public ROW is not a common circumstance.
§3.6.C.2(a): Whether there can be any beneficial use of the property without the
variance. Affirmative. The commercial retail operations will be allowed to persist, though
no addition could be built.
§3.6.C.2(b): Whether the variance is substantial. Negative. While the proposed addition
to the building may be located eight feet closer to the street than the zone district would
otherwise permit with approval of the variance, the addition would still be set back from
the existing building façade due to its ROW encroachment.
§3.6.C.2(c): Alteration to neighborhood character/local detriment. Negative. It is Staff’s
opinion that cleaning up the real estate issues and realizing the installation of curb and
gutter on Bighorn Avenue would actually be an improvement to the neighborhood.
§3.6.C.2(d): Adverse effect on the delivery of public services such as water and sewer.
Negative. No comments from affected agencies were received indicating that approval
of the variance request would be cause for adverse impacts on public services.
§3.6.C.2(e):Whether the Applicant purchased the property with knowledge of the
requirement. Neutral. It is not known if the applicant knew of the existing ROW
encroachment at the time of property purchase.
§3.6.C.2(f):Whether the Applicant's predicament can be mitigated through some
method other than a variance. Negative. The variance will permit the existing building to
legally exist in its current position following ROW vacation for the area of the building’s
ROW encroachment.
§3.6.C.3: No variance for general/recurrent circumstances. Affirmative. The
circumstances are very unique to this situation.
§3.6.C.4: No variance for lot size reduction. Not applicable.
§3.6.C.5: Variance shall represent the least deviation from the regulations that will
afford relief. Affirmative. Though there are related conditions of approval, the requested
setback variance is the minimum relief that can be granted by the BOA within the scope
of the present situation.
§3.6.C.6: No variance for non-permitted use. Affirmative. The existing commercial retail
use and the proposed taproom are uses permitted by right in the CD (Commercial
Downtown) zone district.
§3.6.C.7: BOA may grant conditions to ensure objectives are met. Affirmative. The
proposed condition that the Town Board of Trustees grant a ROW vacation for the
existing building encroachment helps ensure the practicality of the setback variance.
The proposed condition that the Applicant install curb and gutter in exchange for the
ROW vacation may help compensate for value of vacated ROW and works to improve
the ROW in this area for the public benefit.
Reviewing Agency Comments:
This request has been routed to reviewing agency staff for review and comment.
Comments received supported the variance request as conditioned.
Public Notice:
A legal notice was published in Estes Park Trail-Gazette on August 14, 2020.
Advantages:
Approval of the variance request resolves an existing property issue by conditionally
eliminating an encroachment and restoring legal situation of the building in its current
position. In addition, approval of the zero-foot setback permits the proposed taproom
addition to be located on the north side of the building along the property line, which is
still visually set back from the street because of the building encroachment.
Disadvantages:
Approval of the variance and the related ROW vacation may interfere with alignment of
Big Horn Drive and Moraine Avenue if that is desired at a future date.
Action Recommended:
Staff recommends Approval of the variance request.
Finance/Resource Impact:
Financial impact considerations might relate to the value of the Town ROW proposed to
be vacated. However, it is the opinion of staff that the installation of the aforementioned
curb and gutter improvements is of value in its own right. Also, the fact that the ROW is
currently occupied by a building diminishes the functional benefit of ROW possession by
the Town should it find it undesirable to attempt repossession of the subject ROW.
Level of Public Interest:
As of the time of this writing, one public comment regarding site access was received
from the neighbor to the north and the Estes Park Trail-Gazette did contact the
Community Development Department for information, which suggests there is some
level of public interest.
Sample Motions:
I move to APPROVE with Condition the variance request, the condition of which is
ROW vacation by the Town Board of Trustees, in accordance with the findings as
presented.
I move to deny the variance request, finding that \[state findings for approval\].
I move to continue the variance request to the next regularly scheduled meeting \[state
reasons for continuing\].
Attachments:
1. Vicinity Map
2. Proposed Site Plan
3. Application Form
4. Statement of Intent
5. Public Comment
6. Indemnification and Waiver
Map
Vicinity
1:
Attachment
44.2'
R-O-W
EXISTING
CLEAVE STREET
F
FI
L
C
F
O
E
S
A
B
Attachment3:ApplicationForm
Attachment4:StatementofIntent
August 11, 2020
Community Development Department
Town of Estes Park
RE: Statement of Intent for 113 E. Elkhorn Ave Setback Variance
To Whom it May Concern:
Trail Ridge Consulting Engineers, LLC is pleased to submit this Application for Setback Variance Review
on behalf of the owners of the property located at 113 E. Elkhorn Ave. This letter is to serve as the
Statement of Intent for the proposed project and will provide general descriptions regarding compliance
with the key applicable standards for review as defined in the Estes Valley Development Code. Please
refer to the Site Plan submitted herewith for specific details regarding the proposed project.
Project Information
The subject property is located at 113 East Elkhorn Avenue with approximately 0.16 acres of land area.
The parcel is previously developed for retail use with an existing commercial building on site. The
property is zoned CD-Downtown Commercial per the Estes Valley Zoning District Maps. The proposed
project involves constructing an addition on the south side of the building. The variance request is for a
0’ front setback on the west side of the proposed addition.
Compliance with Standards for Review
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.
PAGE 1 OF 3
Response: The subject property is located in a high-density commercial area where original platted
building setbacks were overridden by re-zoning in the Estes Valley in the year 2000. Additionally the
existing Plat does not reflect the existing configuration of roads, ROW and buildings in the area.The
existing building is located over the current western property line. The requested variance will allow the
applicant to construct an addition to the west, meeting the existing property line. The proposed addition
does not impact any existing easements or public utilities.
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;
Response: The variance allows the applicant to complete upgrades and maintenance to the existing
building while maintaining the character of the downtown Estes Park.
b. Whether the variance is substantial;
Response: The variance requested is the minimum required to provide relief to the applicant.
c. Whether the essential character of the neighborhood would be substantially altered or
whether adjoining properties would suffer a substantial detriment because of the
variance;
Response: The variance requested would not alter the existing character of the neighborhood as the
architectural style of the proposed project is compatible with surrounding structures. Additionally, by
granting this variance the applicant will be able to move forward in updating the ROW to reflect the
current configuration of Town ROW and existing buildings.
d. Whether the variance would adversely affect the delivery of public services such as water
and sewer;
Response: No public utility services or easements are impacted by the proposed project.
e. Whether the Applicant purchased the property with knowledge of the requirement; and
Response: To my knowledge, the applicant was not aware of the proximity of the structure to the setback
line.
f. Whether the Applicant's predicament can be mitigated through some method other than
a variance.
Response: The requested variance is the minimum to provide relief for the proposed project. The
variance is conditional on approval of the ROW vacation by the Town Board of Trustees.
PAGE 2 OF 3
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.
Response: Many properties in the neighborhood do share a similar configuration and layout of property
lines and structures, although it is unlikely that the variance required for the circumstances of the
property will result in formulation of a general regulation for such condition.
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.
Response: The requested variance will not alter the size of any lot or result in an increase number of lots.
5. If authorized, a variance shall represent the least deviation from the regulations that will
afford relief.
Response: The requested variance is the least deviation from the regulation that will afford relief.
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.
Response: The requested variance will not permit a use prohibited by the EVDC.
7. 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.
Response: Acknowledged.
We thank you for time and consideration of the requested setback variance. If there are any questions
about the project or items discussed above, please do not hesitate to contact me at 970-308-8221.
Sincerely,
David Bangs, P.E.
Principal Engineer
Trail Ridge Consulting Engineers, LLC
PAGE 3 OF 3
Attachment5:PublicComment
Fun-Wear Brands, Inc. August 25, 2020
P.O. Box 2800
Estes Park, CO 80517
TO:
Town of Estes Park Planning Division
Attn: Alex Bergeron
170 MacGregor Ave
Estes Park, CO 80517
RE: 113 E. Elkhorn Avenue Development Proposal under review
To Whom it May Concern:
Thank you for your notice dated August 13, 2020 and inviting written comments for the record. We own
nearby property to the North of subject review property, Lot 27 Block 10, Town of Estes Park. (See
attached survey file).
Our concern is regarding our property rights and the access coming off Bighorn Drive. The city access is
not being used. Rather the cement apron “concrete pan” to the north, which path then crosses the South
West corner of our lot. If our future includes building and or fencing our South and West lot line, the city
access would have to be used. We believe your site review needs to take this into consideration.
While studying this several weeks ago I drove a steel fence post in next to our lots south west corner pin
(also the north west corner of the city access). Within a day, it was found broken off at ground level. Upon
trying to relocate the survey pin today it was not found. I looked for the city access south west pin and
could not find it either. Then, looking at the steaks for the Proposed Tap House on the west property line,
it seems that, extending that line, caused inconstancies in distances on the surveys from the city access
pins to the cement “concrete pan”. Rather than approximately 18.5’ from the concrete pan south east
corner, it is much less.
Subject property has a fence in and across the city access ROW (Right of Way), with ”No Parking” signs on
it. (See attached photos).The city access is being used by subject property for their personal parking.
The city access is currently 15.5’ wide and should remain as an attainable access if needed. It should not
be further encumbered.
Sincerely Yours,
Ernest J. Petrocine
CEO Fun-Wear Brands Inc.
970-232-829*0
Epetrocine@gmail.com
DBA’s
Rocky Mountain Connection
Outdoor World
Attachment6:IndemnificationandWaiver