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HomeMy WebLinkAboutMINUTES Estes Valley Board of Adjustment 2011-09-13 RECORD OF PROCEEDINGS Regular Meeting of the Estes Valley Board of Adjustment September 13, 2011, 9:00 a.m. Board Room, Estes Park Town Hall Board: Chair Wayne Newsom, Members Bob McCreery, John Lynch, Chuck Levine, and Pete Smith; Alternate Member Jeff Moreau Attending: Vice-Chair McCreery, Members Lynch, Smith, Alternate Moreau Also Attending: Director Chilcott, Recording Secretary Thompson, Town Attorney Greg White Absent: Chair Newsom, Member Levine Vice-Chair McCreery called the meeting to order at 9:00 a.m. The following minutes reflect the order of the agenda and not necessarily the chronological sequence. 1. PUBLIC COMMENT None. 2. CONSENT A. Approval of minutes of the June 7, 2011 meeting. It was moved and seconded (Smith/Moreau) to approve the Consent Agenda as presented and the motion passed 4-0 with one absent. 3. METES AND BOUNDS PARCEL, 1051 SUTTON LANE Director Chilcott reviewed the staff report. The applicant requests 12-foot encroachment into the 25-foot side setback to construct a proposed attached garage. The property is zoned E-1 Estate, which requires 25-foot setbacks. The lot is long and narrow, and is undersized for the zoning district. With 25-foot setbacks on either side, building space is limited. The application was routed to affected agencies and adjacent property owners and staff received no opposition to the request. One adjacent property owner called in support of the variance. Staff found that the variance request complied with the review criteria in the Estes Valley Development Code (EVDC). Staff found that special circumstances exist and practical difficulty may result from strict compliance with the code. Staff recommended approval of the variance request, with two conditions, listed below. Staff Discussion None. Public Comment Sara Klieber/Owner stated her desire for an attached garage. Conditions 1. Compliance with the site plan and building design, as approved by the Board of Adjustment. 2. Setback Certificate. Prior to final inspection, a registered land surveyor shall provide to the Community Development Department a signed and stamped certificate that specifically verifies that the structure complies with the approved variance, and shall include a specific reference to the distance to property lines. Staff recommends a surveyor set survey stakes for foundation forms to ensure compliance with the approved variance. It was moved and seconded (Lynch/Moreau) to approve the variance request with the findings and conditions recommended by staff and the motion passed 4-0 with one absent. RECORD OF PROCEEDINGS Estes Valley Board of Adjustment 2 September 13, 2011 4. METES AND BOUNDS PARCEL, 1810 WINDHAM LANE, APPEAL OF STAFF DECISION Director Chilcott reviewed the staff report. The applicant submitted an application for zoning approval for an accessory structure, and on August 17, 2011, staff determined the proposed structure was a detached accessory dwelling unit (ADU). According to staff interpretation, the structure was not clearly incidental and customarily found in connection with the principal use. Staff reviewed the overall design of the structure and determined a household could live independently in the building. Per the EVDC, the size of the lot (3.1 acres) was not sufficient for an ADU in the RE-Rural Estate zone district (3.33 acres required). Director Chilcott stated attached ADUs are allowed in the Estes Valley on lots that are 1.33 times the minimum lot size for the zone district, while detached ADUs are not allowed. Director Chilcott reviewed the plans for the proposed structure, stating it had all the components of an ADU. There was an existing dwelling unit on the property, and staff determined this proposed structure was not a usual and customary use, as described in the EVDC. She explained the property owner does have other options, such as an additional attached living area with an accessory kitchen, provided it was deed restricted. She stated staff’s decision was reviewed by Town Attorney White. Public Comment Betty Nickel/Applicant stated the structure was designed as detached because the existing dwelling already lies within the setback and a detached unit was the best design for the narrow, difficult lot. The property owners wanted to keep the rock outcroppings and stay out of the view corridor of the neighbors. Mrs. Nickel stated ADUs have been an issue for several years. The code was amended to allow accessory kitchens, of which the definition stated must have a cooktop and an oven with either a 220V electric line or gas line. She stated the functions in this building are incidental to a single-family dwelling, and do not contain cooking facilities. It was her opinion that they met all the requirements of the code. Steve Nickel/Applicant disagreed with staff’s referral to a 2006 decision to support their interpretation of the code. He did not agree with staff’s determination that the proposed accessory structure was an accessory dwelling unit. Mr. Nickel mentioned the on-going and unresolved hearings by the Estes Valley Planning Commission concerning ADUs, and referred to amendments made to the EVDC concerning accessory kitchens. Discussion occurred among staff and the Board as to whether or not the incidental uses in the structure were typical, and about the process staff used to make the determination of the accessory dwelling unit. Director Chilcott stated the structure was looked at as a whole, and that the proposed structure was not typically found on a lot in the Estes Valley. Vice-Chair McCreery stated he could see both sides of the issue, and suggested tabling the item until the Planning Commission could establish guidelines for detached ADUs. Harold Haunschild/Property owner stated the topography of the lot made it impractical to add on to the existing dwelling. If they could, they would add all the proposed rooms to the existing dwelling. If the rules changed, he would probably not change the design of the proposed structure. He believed the application complied with the current code because there was not a kitchen included. Attorney White stated that staff reviews the overall design, and he agreed with staff that it was a dwelling unit. ADUs are not allowed in the Estes Valley. This was a policy decision approved by Town Board and the County Commissioners. He did not see a code amendment addressing detached ADUs in the near future, due to the controversial and complicated nature of the issue. Attorney White explained the Board of Adjustment did not have the ability to grant a use variance. The Board could find that the proposed design is a structure and not an accessory dwelling unit, which would be a finding against the staff decision. As a structure, the Board would have to find that it is a clearly customary and incidental use. That finding could be based on the absence of a full kitchen. Comments were made that the building has numerous uses, and the overall impact seems to be more than incidental. RECORD OF PROCEEDINGS Estes Valley Board of Adjustment 3 September 13, 2011 More discussion occurred among staff, the Board, and the applicants as to what constituted an accessory dwelling unit, the labeling on the plans, the consequences that could occur if the property is sold, and enforcement of the use once the structure is built. Mr. Haunschild stated his willingness to remove the kitchenette, while maintaining his belief that the structure complied with the current code. Attorney White stated a 2-2 vote would uphold the staff decision. The applicants could resubmit a new plan to staff at any time, based upon the decision of the Board. Any decision would be based on the submitted application. Attorney White stated the applicant also has further rights of appeal, with district court being the next step. Mrs. Nickel expressed her opinion that the property owner’s right would be compromised if they were not allowed to build the structure. Director Chilcott offered the option of continuing the application to allow the applicant to resubmit a new design without the kitchenette, if the applicant chooses to do so. If the cooking facilities were removed, staff would most likely determine the structure did not contain all the components necessary for an accessory dwelling unit. Member Lynch asked Mrs. Nickel to read the last two paragraphs of her letter to staff dated September 2, 2011 (included with staff report). The applicants believe staff is struggling with a code issue they should not have to interpret, and would like the governing bodies to make clear decisions concerning accessory structures and accessory dwelling units. Member Lynch agreed with her comments. Attorney White stated a motion to continue would allow the applicant time to remove the kitchenette from the project, and adjust other designs. They could also choose to leave the design as is and continue with the appeal and variance request as originally submitted. He reminded the Board that they need to look at how the current land use code applies to the application, and base their decision on the facts at hand. He agreed that this part of the code is very difficult for staff and applicants alike. Vice-Chair McCreery and Member Lynch were supportive of the applicant. Vice-Chair McCreery stated his desire to speak to the Planning Commission about this “one size fits all” issue. It was moved and seconded (Lynch/Moreau) to continue the appeal decision and the variance request until the next regularly scheduled meeting and the motion passed 4-0 with one absent. There being no further business, Vice-Chair McCreery adjourned the meeting at 10:24 a.m. ___________________________________ Bob McCreery, Vice-Chair ___________________________________ Karen Thompson, Recording Secretary