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HomeMy WebLinkAbout10-11-11 Board of Adjustment Minutes BOARD OF ADJUSTMENT MINUTES TUESDAY, OCTOBER 11,2011 ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Pomnichowski called the regular meeting of the Board of Adjustment to order at 6:00 p.m. in the City Commission Meeting Room, City Hall, 121 North Rouse Avenue, Bozeman, Montana and directed the secretary to record the attendance. Members Present Ed Sypinski, Vice Chairperson JP Pomnichowski, Chairperson Dan Curtis Pat Jamison Cole Robertson Chris Mehl, City Commission Liaison Members Absent Staff Present Brian Krueger, Associate Planner Keri Thorpe, Assistant Planner Tim McHarg, Planning Director Tim Cooper, City Attorney Tara Hastie, Recording Secretary Visitors Present John Ludin Nick Fulton Carolyn Boyd John Berg ITEM 2. MINUTES OF JUNE 14,2011 MOTION: Mr. Curtis moved, Vice Chairperson Sypinski seconded, to approve the minutes of June 14, 2011 as presented. The motion carried 5-0. Those voting aye being Chairperson Pomnichowski, Mr. Robertson, Ms. Jamison, Mr. Curtis, 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.} Page 1 of 9 Board of Adjustment Minutes—October 11,2011 Chairperson Pomnichowski opened the general public comment period. Seeing no general public comment forthcoming, the public comment period was closed. ITEM 4. PROJECT REVIEW 1. Ellen Theatre Cabaret License CUP #Z-11235 (Krueger) 17 West Main Street * A Conditional Use Permit Application to allow the on-premise consumption of beer and wine at events held throughout the year. Associate Planner Brian Krueger presented the Staff Report noting the proposal was for a Conditional Use Permit to add a beer and wine license for on-premise consumption. He stated the building existed and noted its location was on the north side of West Main Street between Tracy and Willson Avenues. He noted the primary locations of the public areas within the building. He stated the project had been noticed and no public comment had been received. He stated Staff recommended approval of the proposal with six standard conditions of approval. He added he would be happy to answer any questions. Vice Chairperson Sypinski asked if alcohol would be allowed in the seating areas at the establishment. Planner Krueger responded Staff had assumed it would be allowed, but it would ultimately be at the discretion of the owner. Vice Chairperson Sypinski asked if the alcohol at events would be catered by another establishment. Planner Krueger responded he would defer to the applicant to respond as he was uncertain. Chairperson Pomnichowski asked for clarification and stated that one page of the Staff Report indicated there would be outdoor seating and then later in the report indicated no outdoor seating was proposed. Planner Krueger responded there was no outdoor seating proposed and the Staff Report contained a typo; he apologized for his error. Chairperson Pomnichowski suggested Planner Krueger correct the Staff Report for the official record. Planner Krueger concurred. Chairperson Pomnichowski asked if signage would be included in the establishment that would indicate that alcohol could not leave the premises. Planner Krueger responded that it didn't seem necessary due to the limited events taking place at the location. John Ludin, Executive Director of Montana Theatreworks, addressed the BOA. He stated alcohol would be consumed in the lobby and seating areas. He stated there was only a short time to serve alcohol before the event or during the intermission. He stated his staff would take classes to be certain no minors were served on the premises and he would include signage if required. Vice Chairperson Sypinski asked if the events serving alcohol would be catered through another establishment. Mr. Ludin responded the events would not be catered and they were seeking a permanent license for their location. Page 2 of 9 Board of Adjustment Minutes—October 11,2011 Chairperson Pomnichowski noted that if alcohol left the premises, the City of Bozeman open container law would apply. Chairperson Pomnichowski opened the item for public comment. Seeing none forthcoming, the public comment period was closed. Vice Chairperson Sypinski stated he saw the application as being appropriate and complimentary to supporting downtown development and he was supportive of the proposal with Staff findings as outlined in the Staff Report. Ms. Jamison stated she was supportive of the proposal and added it had been put together very well. MOTION: Mr. Curtis moved, Vice Chairperson Sypinski seconded, to approve Ellen Theatre Cabaret License CUP #Z-11235 with Staff findings as outlined in the Staff Report. AMENDED MOTION: Mr. Curtis moved, Vice Chairperson Sypinski seconded, to amend the motion to include that no outdoor seating was proposed or approved with this application. FINAL MOTION: Mr. Curtis moved, Vice Chairperson Sypinski seconded, to approve Ellen Theatre Cabaret License CUP #Z-11235 with Staff findings as outlined in the Staff Report to include that no outdoor seating was proposed or approved with this application. Chairperson Pomnichowski stated that the review criteria as set forth in the ordinance had been met and listed those criteria for the sake of those present at the hearing. The motion carried 5-0. Those voting aye being Chairperson Pomnichowski, Mr. Robertson, Ms. Jamison, Mr. Curtis, and Vice Chairperson Sypinski; those voting nay being none. 2. Berg/Boyd Addition/ADU CUP/COA/VAR#Z-11220 (Thorpe) 1314 South 3rd Avenue * A Conditional Use Permit with a Certificate of Appropriateness and a Variance Application to allow the construction of an Accessory Dwelling Unit in the basement and to allow the entrance to the Accessory Dwelling Unit to be located on the front fagade. Assistant Planner Keri Thorpe presented the Staff Report noting the request was for an Accessory Dwelling Unit in the basement of the residence with a Variance to allow the entrance to the ADU to be located on the front elevation. She stated the house was currently under renovations through the previous approval of a Certificate of Appropriateness Application. She stated the condition to widen the driveway should remain though the applicant had revised the submittal to reflect those conditions. She stated the ADU must be clearly incidental to the principal structure; she added the applicant had addressed most of the review criteria. She stated the home had originally been Page 3 of 9 Board of Adjustment Minutes—October 11,2011 built with two front entrances which was a common feature of ranch style homes of that period; circa 1950. She stated the utilization of the existing entry would lessen the hardship of a major redesign which would compromise the historic integrity of the property. She stated there was a slope to the property and the entrance at the rear of the house would create an inconvenient and possibly hazardous condition for the applicant, particularly in winter. She stated Staff had concurred that the request observed the spirit of the title and would respect the residential character and quality of the area. She stated Staff wanted to maintain the ADU as incidental to the structure and Staff would require screening of the entrance to make it appear subordinate to the main entrance. She stated one written public comment had been received and provided to the BOA in their packet materials. She stated the primary concern was parking congestion and renter occupied residences; she stated at least one of the dwellings had to be occupied by the owner as part of the conditions of approval. She stated Staff was supportive of the project as proposed, subject to the conditions as outlined in the Staff Report. Ms. Jamison asked for clarification of the CUP approval running with the property. Mr. McHarg responded it would be recorded and would show up on the title report for the property. Vice Chairperson Sypinski asked the size of the lot. Planner Thorpe responded she thought it was around 15,000 square feet. Vice Chairperson Sypinski stated the Staff Report had indicated maintaining a three bedroom household and he had not seen the third bedroom on the plans. Planner Thorpe responded Staff counted rooms that could be used as bedrooms and contained a closet; the applicant had been willing to amend the design to remove the closet. Vice Chairperson Sypinski asked if there were any bedrooms proposed for the ADU. Planner Thorpe responded there would be no bedrooms and the ADU would be a studio style. Mr. Curtis asked if the BOA could review a window schedule. Planner Thorpe responded that the window replacement had been approved in a previous Certificate of Appropriateness Application and she would defer to the Building Division with regard to compliance with fire separation and building codes; she added condition of approval 99 addressed those concerns. Mr. Robertson directed Mr. Curtis to a depiction of the window size in question and added that it was the size of an egress window. Chairperson Pomnichowski asked for clarification of the door replacement indicated in the plans. Planner Thorpe responded the door in question was a garage door. Chairperson Pomnichowski asked the plan for the driveway. Planner Thorpe responded the paved pad and one stacking space were to be used exclusively for the ADU. Chairperson Pomnichowski asked if the area was "Resident Parking Only". Vice Chairperson Sypinski responded the area was within the "Resident Parking Only". Nick Fulton, Bechtle Architects, addressed the BOA. He stated window Q was an egress window and would include a well. He stated the clients would be residing in the main residence and renting the studio space downstairs. He stated the applicant would prefer not to have to screen the door so that it could remain the way it has historically been. He stated they were happy to follow Page 4 of 9 Board of Adjustment Minutes—October 11,2011 all of the other conditions of approval. Chairperson Pomnichowski asked what work was being done on the site currently. Mr. Fulton responded renovations to the property had commenced without inclusion of the ADU. Carolyn Boyd addressed the BOA. She stated her husband's family had lived on the property and had later rented the property (2002-2010) to college students. She stated she did not know of any time an ADU had been included on the site. Chairperson Pomnichowski asked for clarification that no improvements to the basement were being undertaken. Mr. Fulton responded there was currently an open basement with renovations to the mechanical room and other refinishing of the basement. Chairperson Pomnichowski asked if there had been any consideration of an alternative entry. Mr. Fulton responded the layout and use of the site was most easily accommodated by the existing entrance. Chairperson Pomnichowski asked the square footage of the basement living area. Mr. Fulton responded the whole basement was —665 sq. ft. which would make the living area—300 sq. ft. Vice Chairperson Sypinski asked if the addition would be the new master bedroom. Mr. Fulton responded he was correct and the existing master bedroom would be remodeled to a master bathroom; he added the closet in the office would be demolished to that it would not be considered a bedroom. Chairperson Pomnichowski asked the applicant what the plan would be if they were not going to include screening. Mr. Fulton responded the entrance would remain as is. Ms. Boyd added the building had always had two doors and had been designed by a well know architect who knew what he was doing; she stated it had two doors for fifty years and both the principal residence and ADU would use the entrance. Chairperson Pomnichowski opened the item for public comment. John Berg, husband of Carolyn Boyd and part owner, addressed the BOA. He stated renting the house had not been going well due to the habits of the renters. He stated he and his wife had retired and had lived in Laurel Montana until they decided to move back to Bozeman. He stated the house was a Don Cheever designed house and both doors had always existed. There being no further public comment forthcoming, the public comment period was closed. Chairperson Pomnichowski stated she thought there was a requirement that separated the units wholly. Director McHarg responded that he was not certain the Building Code would differentiate the entrance to a unit by a renter; he suggested the application could be conditioned to provide a separate entry to the downstairs unit or to direct Staff to follow up with the Chief Building Official to determine compliance with Building Codes. Mr. Fulton added there were two doors in the stairwell from the kitchen to provide separation with separate keyed entrances. Mr. Robertson responded there was a contract law with regard to renting a unit and the owner Page 5 of 9 Board of Adjustment Minutes—October 11,2011 would have a key to the unit regardless but would be required to give notice to the renter prior to entering their home. Vice Chairperson Sypinski stated he thought there did have to be separate and distinct entrance for the ADU as outlined in the ordinance; if the Variance were approved there would have to be some differentiation in entrances. Mr. McHarg added that the rationale behind the screening requirement was to mitigate the secondary entrance and make it more subordinate to the primary entrance. Chairperson Pomnichowski asked the BOA if it would be wisest to make separate motions on the CUP and the variance requests. Vice Chairperson Sypinski stated he would like to act on the CUP and variance separately. Mr. Cooper responded his recommendation would be to act on the CUP first because if it were denied the variance would be moot. Mr. Curtis stated he found the application to be in keeping with the review criteria as set forth in the ordinance. MOTION: Mr. Curtis moved, Ms. Jamison seconded, to approve the Conditional Use Permit with Staff conditions as outlined in the Staff Report. Mr. Robertson stated he found it odd that Vice Chairperson Sypinski was supportive of the screening requirement as the historic integrity of the property would not be maintained. Vice Chairperson Sypinski responded the house was not historic. Mr. Curtis noted that the screening requirement was not a part of the CUP review. The motion carried 5-0. Those voting aye being Chairperson Pomnichowski, Mr. Robertson, Ms. Jamison, Mr. Curtis, and Vice Chairperson Sypinski; those voting nay being none. MOTION: Mr. Curtis moved, Mr. Robertson seconded, to approve the Variance request with Staff conditions of approval as outlined in the Staff Report with the exception of condition#4. Mr. Curtis stated his reasoning for elimination of condition 94 was that historically the fagade had included the 2nd door and he felt the screening would be a detriment to the original character of the house. Vice Chairperson Sypinski responded the original house did not include an ADU and changes in use triggered the requirements of the screening section of the UDO. Mr. Curtis responded if the entry was to be added to the front of the house, the screening would apply, but the entrance was original. Vice Chairperson Sypinski reiterated that the ADU was considered as a new use on the property. Chairperson Pomnichowski stated the granting of a variance was one of the most important applications the Board reviewed. She stated the criteria included not being contrary to and will serve the public interest. She stated the application for the proposed use met those review criteria Page 6 of 9 Board of Adjustment Minutes—October 11,2011 requirements; she thought it would be a hardship as the staircase was located in the same spot since 1948. She stated a moratorium on ADU's had been instituted in that area of town by the City Commission as so many people were proposing them with existing parking inadequacies. She stated she was supportive of the proposal. Ms. Jamison concurred with Chairperson Pomnichowski that there seemed to be no parking hardships at that location. The motion carried 4-1. Those voting aye being Chairperson Pomnichowski, Mr. Robertson, Ms. Jamison, and Mr. Curtis; those voting nay being Vice Chairperson Sypinski. ITEM 5. Briefing by City Attorney (As necessary.) No items were forthcoming. ITEM 6. Briefing by Planning Staff(As necessary.) No items were forthcoming. ITEM 7. NEW BUSINESS Mr. Mehl stated the City Commission had broadly discussed the Board of Adjustment and there were three thrusts of where the discussion went. He stated areas of more discretion to Planning Staff had been discussed but the BOA would be maintained in some capacity. He stated there had also been some political discussions. He stated another issue they had discussed was that the City Commission agendas were not as heavily loaded as in the past; the schedule was less busy on the BOA agendas; they had decided to keep the BOA. He stated they had made no progress on when to reclaim jurisdiction on an item and when to defer to the BOA. Ms. Jamison thanked Director McHarg for the information he had provided to the Board. Mr. Curtis stated that his personal feelings on the political aspects was that the Commission was remiss in bringing up the ethical appearance; Bar IX asked for City Commission review after being denied at the BOA level and he was disappointed in the City Commission for their decision. Mr. Mehl stated Mr. Curtis had made some good points that he would express to the other Commissioners. Mr. Curtis suggested the City Commission take on an agenda item if the Board of Adjustment requested such. Attorney Cooper stated his understanding of the history of the Board of Adjustment included the State requirement that there be an appeals board for zoning regulations; he added there was currently no plan to abolish the Board. He stated the original intention of the BOA was to be an appeal body; the main thing was that the Commission had over 20 administrative actions on their plate that would typically be handled at the Planning Department level. He stated the Page 7 of 9 Board of Adjustment Minutes—October 11,2011 Commission was being used by people who wanted it heard somewhere else for their own reasons; there was a new mechanism that was being tested in conjunction with the recreation of the Board. He added the Commission would need to determine which applications were to be heard by which entity. Mr. Mehl suggested the BOA procure another copy of Director McHarg's memo to the City Commission regarding the Board of Adjustment. He stated there was not interest in abolishing the Board, but there would be careful consideration of the public and their review processes without removing the citizen's right to approach the City Commission. Mr. Robertson stated there was a lot of thought and process with regard to the decisions of the Board of Adjustment. He stated it felt as though the Board's findings were dismissed very quickly by the City Commission and none of their concerns had been addressed. He stated it worried him that as decisions were made by the BOA they were undermined at the City Commission hearing. He stated he did not have a solution, but the City Commission seemed to ignore the findings of the Board. Mr. Mehl apologized for being late. He stated there was no doubt that the Commission in fact and in attitude operated at a 30,000 foot level; it was part of knowing your strengths and weaknesses. He stated they also felt the City Commission was like the Supreme Court, though a full agenda was not an excuse; he added it was frustrating on all sides. He stated he did not think a project reviewed by the BOA should have been reclaimed by the City Commission. Chairperson Pomnichowski stated she thought there was some discomfort by the City Commission because the BOA was an approval board, not an advisory board. She stated it just can't happen;people asking "dad"when"mom" says no. She stated some of the appellant functions were not being accomplished by the BOA. She stated she felt they served a vital role and she would like to see the Board serve their entire vital role. She stated reclaiming jurisdiction had always felt uncomfortable for her as it had become favoritism; some applicants will seek out City Commission review when they aren't sure what the BOA will decide. She stated each project received fair and equitable treatment at the BOA hearing. She stated the Board did not need to be rescued from controversial projects; they were careful that every application met the criteria as set forth in the ordinance. She stated the liability on the City was also too great a risk. She stated she was comforted to hear that some of the Commission saw value in the BOA and she thought the Board should have entitlement to its review jurisdiction. She stated Planning Staff had also recommended the City Commission reclaim jurisdiction of a proposal. Mr. McHarg responded he disagreed with Chairperson Pomnichowski unless there was an aspect of the proposal that had been previously reviewed by the Commission or the applicant had requested the reclamation. Mr. Mehl stated there would be discussions regarding the role of the Board as well as the Commission. He stated a clear majority wanted to keep the BOA going and apologized for not Page 8 of 9 Board of Adjustment Minutes—October 11,2011 thanking the Board enough for their hard work and dedication. He stated the jurisdictions would need to be clarified. ITEM 8. F.Y.I. Chairperson Pomnichowski asked the members to recruit friends and family as the Board was currently at five members. ITEM 9. ADJOURNMENT There being no further business before the BOA, the meeting was adjourned at 7:50 p.m. JP Pomnichowski, Chairperson City of Bozeman Board of Adjustment Page 9 of 9 Board of Adjustment Minutes—October 11,2011