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HomeMy WebLinkAbout090909 Board of Adjustment MinutesBOARD OF ADJUSTMENT WEDNESDAY, SEPTEMBER 9, 2009 MINUTES ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Pomnichowski called the meeting of the Board of Adjustment to order at 6:00 p.m. in the Commission Meeting Room, City Hall, 121 North Rouse Avenue, Bozeman, Montana and directed the secretary to record the attendance. Members Present Staff Present Ed Sypinski Doug Riley, Associate Planner Ed Ugorowski Allyson Bristor, Associate Planner Patricia Jamison Tim Cooper, City Attorney Richard Lee Tara Hastie, Recording Secretary Cole Robertson JP Pomnichowski Members Absent Visitors Present Dan Curtis Jeff Krauss Julie Shea Steve Shea James Healow Wayne Jennings Nancy Jennings Nichole Joyce Connie Anderson Jeff Rupp Ben Lloyd Laura Landon ITEM 2. MINUTES OF AUGUST 11, 2009 MOTION: Vice Chairperson Sypinski moved, Mr. Lee seconded, to approve the minutes of August 11, 2009 as presented. The motion carried 6-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Ugorowski, Mr. Robertson, Ms. Jamison, and Vice Chairperson Sypinski; those voting nay being none. ITEM 3. PUBLIC COMMENT – (15 – 20 minutes) {Limited to any public matter, within the jurisdiction of the Board Of Adjustment, not on this agenda. Three-minute time limit per speaker.} There was no public comment forthcoming. ITEM 4. PROJECT REVIEW 1. Rudolf Residences SP/COA/DEV #Z-09154 (Bristor) 801 South Grand Avenue * A Site Plan with a Certificate of Appropriateness and Deviations to allow the relocation of the existing single-household residence and the construction of a new single-household residence with related site improvements. (Applicant requests open and continuance to 10/13/09.) Associate Planner Allyson Bristor noted the applicant had requested an open and continuance of their proposal to the October 13, 2009 meeting of the BOA. Chairperson Pomnichowski called for public comment. Seeing none, she closed the public comment portion of the meeting. 2. Jennings Porch & Detached Garage COA/DEV #Z-09117 (Bristor) 212 South 3rd Avenue (Continued from 7/14/09.) * A Certificate of Appropriateness with Deviations Application to allow a front porch addition to encroach into a front yard setback and a detached garage construction to encroach into a side yard setback. Associate Planner Allyson Bristor noted the proposal was a project the BOA had previously reviewed and one that had been opened and continued to this evening’s meeting. She noted the requested two deviations remained the same as in the previous submittal. She noted revised site plan materials had been included in the BOA packets. She stated the side yard deviation request was due to the utility locations on the site and noted Northwestern Energy had verified those locations via a letter to the Board. She stated Staff still had the same two recommended conditions of approval. Chairperson Pomnichowski asked for the distance requested for the encroachment into the front yard. Planner Bristor responded the request was for a 3’8” encroachment. Chairperson Pomnichowski requested the information be provided in future Staff Reports. Wayne Jennings, applicant, joined the BOA. He stated he did not know what additional information that he could provide as the site plan depicted the tree and utility line locations. He stated the current plan depicted the drip line of the garage and the mature tree on the site and depicted the locations of the three trees to remain on the site. He stated the power company had installed the utilities in the wrong location and it would be an easily correctible issue. He stated there was never any question in his mind that the same materials would be used for the garage that had been used on the house. He stated the gable end had not been depicted the same as the gable end on the house and he would prefer the garage gable match the house. He stated he didn’t care where the door was located if one of the Board members had issue with where it had been depicted. He stated he thought the proposed front porch should be the easiest decision the Board could make as it had originally existed with a porch. Chairperson Pomnichowski asked if the wooden porch in the alley was owned by the house adjacent to the site. Mr. Jennings responded the wooden porch that he was aware of was two houses down from his property; he added his garage would not be near any other structures. He stated their concerns with adjacent structures were to the south. Chairperson Pomnichowski thanked Mr. Jennings for the updated plan. She asked if the series of pavers would be torn up and would there be a separate gas line for the garage. Mr. Jennings responded the pavers would not be torn up and there would be no gas line to the garage. He stated he was not entirely certain how a walkway could be included in the proposal and it did not seem to be a vital part of the application. He stated if the pavers were a big deal, which would be fine as he had no concern over it. Chairperson Pomnichowski asked if Northwestern Energy had indicated when they would move the gas line. Mr. Jennings responded they had given him an exact time which would occur when the garage was being constructed. Chairperson Pomnichowski asked if the concrete step up on the porch would be roughly the same distance as the porch would extend from the house. Mr. Jennings responded there would be no further distance added than what existing with the stoop, but the extension of the porch would instead run laterally along the house. Chairperson Pomnichowski called for public comment. Seeing no public comment forthcoming, the public comment period was closed. Mr. Lee stated he thought that any time something could be returned to close to original he was supportive and he saw no problem with the porch as proposed. Ms. Jamison stated she thought Mr. Jennings had provided the information the Board had requested and she was pleased with the application as submitted. Mr. Ugorowski stated the revised site plan had really helped determine that the garage could not be relocated on the site. Chairperson Pomnichowski stated the BOA must find that the application meets three separate requirements; she listed those criteria and stated she had found the application to be in compliance with all three criteria. She stated the goal was to restore and rehabilitate to a superior product. Mr. Cooper clarified the correct section for the review criteria of the proposal. Planner Bristor added that the 20% was not relevant for Conservation Overlay projects, but was relevant for Entryway Overlay projects. MOTION: Ms. Jamison moved, Vice Chairperson Sypinski seconded, to approve Jennings Porch & Detached Garage COA/DEV #Z-09117 with Staff conditions. The motion carried 6-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Ugorowski, Mr. Robertson, Ms. Jamison, and Vice Chairperson Sypinski; those voting nay being none. 3. Shea Residence SP/COA/DEV #Z-09164 (Bristor) 530 East Curtiss Street * A Site Plan with Certificate of Appropriateness and three Deviations to allow the construction of a new single-household residence to be built on the lot with related site improvements. Associate Planner Allyson Bristor presented the Staff Report noting the location of the property within zoning designation of R-2. She stated the new single-household residence and carport would be located to the south of the existing residence on the site. She noted existing items which had been previously approved through the Certificate of Appropriateness review process. She noted the existing access off South Wallace Avenue was planned to be widened and the existing garden shed would likely be removed from the site due to fire and building code issues. She noted three deviations were being requested; an encroachment into the rear yard setback for the new house, if the lot is subdivided a deviation to allow two single household residences to be on a lot less than the required 5,000 sq. ft., and a deviation to allow two single-household residences on a lot less than 10,000 sq. ft. She stated no design changes had been recommended by the DRB. She noted the portion of the residence encroaching into the rear yard setback; she noted the new residence would have a small footprint of ~800 sq. ft. She noted no public comment had been received for the proposal and Staff was supportive of the project as submitted. She noted the proposal contained Engineering conditions as well and directed the BOA to those conditions. Vice Chairperson Sypinski suggested a reference to encroachment had been incorrectly entered into the Staff Report and clarified which section of code should have been included. He stated he was concerned with on street parking in that neighborhood and asked if there would be an appropriate number of parking spaces included for the proposal. Planner Bristor responded Staff had found areas of concern regarding parking further to the north of the site rather than in the vicinity of the site. She added the Deviation for Greater Yellowstone Coalition had been to allow less than the required number of parking spaces rather than to allow on street parking. She noted this site plan proposal met the requirements of the ordinance and added they were technically including ½ an additional space. Vice Chairperson Sypinski stated the Staff Report had not specifically addressed the requested Deviations and asked if that was typical. Planner Bristor responded Staff had addressed the review criteria for the Deviations, but had not specifically listed out each deviation separately. The two deviations for lot area are much the same. Mr. Lee asked if the garden shed would be removed from the site or if it would remain and be enlarged and brought up to code. Planner Bristor responded the original submittal had included the relocation of the shed on the site, but the last mention by the applicant was that the shed would be removed. Mr. Ugorowski asked for clarification with the site plan in regard to the shed. Planner Bristor responded Mr. Ugorowski was correct. Mr. Ugorowski asked if the fence that had been an issue in the DRB minutes would need a deviation. Planner Bristor responded the fencing to remain could be grandfathered at six feet in height, but relocated or new fencing would need to comply with the current code. Ms. Jamison asked why the subdivision did not have to occur prior to the construction of a new residence. Planner Bristor responded the deviation approval of undersized lots has to occur first so the subdivision is abiding by zoning code; she added the deviation would only allow the proposed design with future subdivision. Chairperson Pomnichowski asked for clarification of how a construction of a new structure would mitigate the asbestos issues on the site. Planner Bristor responded the site was outside of the area where asbestos mitigation had occurred and would likely not be affected. Mr. Cooper added that the plan area had been approved with an addendum to the plan to address the outlying areas of the “facility” with the outline being the west boundary of the library site, west to the Wallace Avenue right of way, and north to Main Street. He stated it did not include the Greater Yellowstone property but an entire excavation of Wallace Avenue had not occurred. He noted part of the addendum to the clean up plan included preventative maintenance. He stated the other preventative measure was to cover the pedestrian right of way; he added the area had been identified and the City Engineering Street Cut Permit included additional safeguards for that purpose. Planner Bristor added that Engineering condition #15 described the potential asbestos contamination and required a Street Cut Permit if necessary. Chairperson Pomnichowski asked if a deed restriction had been placed on the site and if there would be a need for that; she added her concern was that contamination would not be as neatly contained and identified. Mr. Cooper responded no deed restriction had been placed on the site and he did not see a need for it; he noted any asbestos found to the west of the site had more likely been used as fill. He added the City had cleaned what they could find though they were not required to do more than that; he stated it was an allowable institutional control because all of the area was covered with the only threat being if the site was opened. He noted the Street Cut Permit would require someone who was trained to identify the risk of asbestos be present during any excavation. Chairperson Pomnichowski stated it was possible to subdivide the lots prior to construction and asked if Staff had required the applicant to do the current proposal instead. Planner Bristor responded that a subdivision exemption could not occur first because it would not abide by local zoning code with the undersized lot area. Chairperson Pomnichowski asked if the carport would be on a zero lot line after subdivision. Planner Bristor responded she was correct and a zero setback agreement would be in place. Chairperson Pomnichowski asked if the zero lot line would require a deviation. Planner Bristor responded it would not be necessary to request a deviation if the zero lot line agreement were in place. Mr. Robertson asked if the zero lot line would remain in place after subdivision; when it would be in place. Planner Bristor responded the zero lot line agreement would be in place during Final Site Plan approval. Mr. Robertson asked if a new structure were proposed would it be reviewed. Planner Bristor responded it would be a separate Certificate of Appropriateness Application. Mr. Robertson stated sidewalk had only been included to the existing house with no curb and gutter being shown on the site plan. Planner Bristor responded the Final Site Plan would show the sidewalk extending the perimeter of the lot and would include curb and gutter, as conditioned by Engineering Staff. Mr. Lee stated the newly proposed fence was six feet in height and stated he thought the fence could only be four feet in height. Planner Bristor responded the six foot high fence that Mr. Lee was referencing was located in the rear yard and the four foot high requirement was for the front yard areas. Chairperson Pomnichowski asked for presentation by the applicant. Ben Lloyd joined the BOA to present as the applicant for the proposal. He stated the owners of the property had intended to reduce their carbon footprint and lessen their impact. He stated the amount of traffic in and out of the library’s rear entrance was the primary concern for the owner and the design reflected the sense of privacy the owner was seeking. He stated the amount of six foot high fence would be reduced; the new fence was lower in height. He noted the materials would be stone and wood with passive solar. He stated it was the owner’s goal to attempt to re- use the existing garden shed structure and they were amiable to Staff conditions. Chairperson Pomnichowski asked why the owner had not subdivided. Mr. Lloyd responded Staff had not been supportive of the Exemption for the property until a deviation was obtained for the undersized lot area. Chairperson Pomnichowski expressed concern that the BOA would be approving the zero lot line as a non-conformance. She asked if Mr. Lloyd had conducted a study for asbestos on the site. Mr. Lloyd responded the property owners had not, but he had consulted the City Engineering Department and the same information Mr. Cooper had referenced earlier. Chairperson Pomnichowski asked the number of the lots on the site. Mr. Lloyd responded there were portions of five lots that made up the site. Chairperson Pomnichowski asked how portions of five lots could be reviewed without going through subdivision review. Planner Bristor responded the property was viewed as a whole as it was under single ownership which was common in the historical portions of town. Chairperson Pomnichowski asked if the consolidation of lots would be necessary. Planner Bristor responded Staff viewed the future subdivision exemption would deal with the aggregation of lots in addition to creating a new boundary line. Chairperson Pomnichowski asked if there were five separate lots. Mr. Lloyd responded he could not clarify the size of the lots any better. Chairperson Pomnichowski stated it seemed there were more deviations than the BOA should have been seeing; she added she thought there should be four or five deviations and the application had presented the proposal as one lot. Planner Bristor responded three Deviations had been identified and noticed by Staff and they had concurred that Subdivision Exemption should occur after the approval of the Deviations. Mr. Ugorowski asked if a diagonal was depicted across all five lots on the plat. Mr. Lloyd responded there was a diagonal depicted across all five lots. Mr. Ugorowski stated the zero lot line would be allowed as long as the agreement was in place and the review processes would be in place. Ms. Jamison asked if the owner received one tax bill for the property. Mr. Shea responded Ms. Jamison was correct. Chairperson Pomnichowski opened the public comment portion of the meeting. Jeff Krauss, 508 Park Place, stated he and Commissioner Rupp were paying attention to the proposal as defining zero lot lines and boundary realignments. He stated the proposal was asking to switch the orientation of the structures on the lots and noted there were tons of lots within the City that would have been better suited for the current proposal; he asked how many places the BOA wants to allow the proposal. He stated he had approved a similar proposal on the north side and suggested curb and gutter be included in the approval of the proposal. He stated both sides had been presented with the property being seen as a whole and as five separate lots needing boundary realignment. Seeing no further public comment forthcoming, Chairperson Pomnichowski closed the public comment portion of the meeting. Vice Chairperson Sypinski stated he was unclear as to whether or not the shed would be removed from the site; he suggested the shed be clarified in the conditions of approval. He stated the proposed new construction would have an affect of altering the entire open space of the property; he suggested placing another house would detract from the view. He stated he did not think it met the criteria of being appropriate for the neighborhood or provide visual interest to the community. He stated the slight encroachment equated to roughly 30% which was not a slight encroachment to his way of thinking. Mr. Robertson stated with the infill language in the Design Guidelines and the site design would be a positive thing especially with regard to the proximity of the parks. He stated small footprint and the 30% encroachment into the setbacks still left a large portion of the lot as open space. He stated he did not see the necessity of leaving the existing back yard as Peet’s Hill provided views in the area. Mr. Ugorowski clarified that the re-use of the shed would be up to code and would be set back the two feet required. He stated that overall; he thought the small scale would fit well into the neighborhood as a homestead collection. Mr. Lee stated he liked the design as proposed and he thought it would be a good addition to the neighborhood. Ms. Jamison stated she had initially had some of the same concerns that Mr. Sypinski had voiced, but her concerns had been satisfied and she thought it would be a nice project. Chairperson Pomnichowski stated she agreed that the proposal was a nice project but the BOA was charged with reviewing proposals under the same criteria in the interest of fairness. She stated the first criteria had been met and the historic character could be seen to be met. She stated the proposal as submitted had been with consideration for one lot; she noted the deviation would be tacitly granted with the consideration of the proposal and there would be a non-conforming use on the site which would disallow the approval criteria to be met. She stated it was hard to separate enthusiasm for an infill project from the hard and fast code. She stated the lot could be subdivided so the south lot would be 5,000 sq. ft. lot and the non-conforming lot would be grandfathered with the existing residence. She stated she did not believe she had seen an application where a deviation was requested if subdivision occurred. She stated setbacks were required for the safety of the site and the rest of the City; she noted the zero lot line arrangement did not lend to the safety of the community. She stated she did not find the criteria for approval of the requested deviations to have been met. Ms. Jamison asked if the lot had to be subdivided. Chairperson Pomnichowski responded the site did not have to be subdivided. Planner Bristor responded the property did not have to be subdivided. Mr. Cooper added the deviation for less than allowable lot size would need to be approved in order for the lot to be subdivided. Mr. Lee stated that if the owner did not subdivide the property they could not sell the second residence with a separate lot. Planner Bristor responded he was correct and clarified that the application was not for subdivision at this time. Mr. Lee stated that if the owner did not subdivide, the zero lot line for the carport would not be an issue. Planner Bristor responded Mr. Lee was correct. Mr. Ugorowski stated the application was not necessarily a future deviation being granted. Chairperson Pomnichowski clarified that the review was for one lot. Planner Bristor responded the review was for one site with a legal description that included portions of five lots. MOTION: Mr. Ugorowski moved, Mr. Robertson seconded, to approve Shea Residence SP/COA/DEV #Z-09164 with Staff conditions. Vice Chairperson Sypinski stated he was conflicted on this particular project, but he would have to agree with Chairperson Pomnichowski’s interpretation of the findings of fact and that the proposal did not meet the review requirements. The motion carried 4-2. Those voting aye being Mr. Lee, Mr. Ugorowski, Mr. Robertson, and Ms. Jamison; those voting nay being Vice Chairperson Sypinski and Chairperson Pomnichowski. 4. In Vito Veritas Cabaret License CUP #Z-09146 (Riley) 2251 West Kagy Boulevard, Suite 1 * A Conditional Use Permit Application to allow the on-premise consumption of beer and wine. Associate Planner Doug Riley presented the Staff Report noting the proposal was for an existing establishment and it’s location in the Kagy Village Business Center that had been approved in 2004. He noted the property was within the B-2 zoning designation and was surrounded by County land to the west and south of the site. He directed the Board to a photograph of the interior of the structure and noted the limited seating in that location. He noted Staff had found no traffic or parking issues had been identified with the granting of the CUP. He stated no public comment had been received for the proposal and Staff was supportive of the proposal as submitted. Chairperson Pomnichowski stated condition #5 regarded the expansion of the outdoor seating and asked if patrons could have alcohol on the patio. Planner Riley responded they could have alcohol on the patio as long as the State requirements had been met; he added any expansion would need to be reviewed to determine that parking was adequate. Mr. Lee asked if there were any plans for the surrounding County lands. Planner Riley responded much of the property was MSU property and he had seen no plans for development in those locations. James Healow, applicant, stated he was the attorney representing his mother for the proposal. He stated the State had determined the number of liquor licenses allowable in Bozeman. He stated the establishment would be run the same and the patrons would only notice a difference in that they could have a drink of Italian wine with their Italian food. He stated the BOA was the only remaining requirement and every other agency had reviewed and approved the proposal. Ms. Jamison asked if Ms. Anderson would be the holder of the license and would lease it. Mr. Healow responded Ms. Jamison was correct. Ms. Jamison asked if the lease could be retracted. Mr. Healow responded the lease could be retracted. Ms. Jamison clarified that the proposal was for use of the CUP on that land. Mr. Healow responded Ms. Jamison was correct, and if the establishment were moved, the BOA would be seeing him again for the new location. Chairperson Pomnichowski asked the hours of operation. Ms. Anderson responded the hours of operation were 9:00 a.m. to 6:00 p.m. Chairperson Pomnichowski asked if there would be special events that would extend the hours of operation. Ms. Anderson responded there would be a few, but the average hours of operation would remain from 9:00 a.m. to 6:00 p.m. Mr. Sypinski suggested the applicant install some sort of division between the outdoor seating area and the sidewalk. Chairperson Pomnichowski stated there was a geographical separation between the outdoor seating and the sidewalk that would satisfy some of the Board’s concerns. Chairperson Pomnichowski stated the review criteria had been met and she was supportive of the proposal as presented. MOTION: Vice Chairperson Sypinski moved, Ms. Jamison seconded, to approve In Vito Veritas Cabaret License CUP #Z-09146 with Staff conditions. The motion carried 6-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Ugorowski, Mr. Robertson, Ms. Jamison, and Vice Chairperson Sypinski; those voting nay being none. ITEM 5. Briefing by City Attorney Greg Sullivan (As necessary.) Chairperson Pomnichowski stated she had received an e-mail from an applicant in appreciation of the BOA’s findings being included in their approval. She stated that because their decisions were final and could be appealed only to District Court, it is very important that findings be made; she suggested each Board member address the findings individually as basis in fact for their decisions. Mr. Lee stated one other job the Board of Adjustment had was if a person had a disagreement with the City Commission they could request BOA review and the decision could be overturned. ITEM 6. Briefing by Planning Staff (As necessary.) There were not items presented for discussion. ITEM 7. ADJOURNMENT There being no further business before the BOA, the meeting was adjourned at 8:03 p.m. ______________________________ JP Pomnichowski, Chairperson City of Bozeman Board of Adjustment