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Board of Zoning Appeals Minutes: July 24, 2014

BZA minutes are transcribed in a summarized manner. Audiotapes are available in the Planning Department for reference. Videotapes are also available for viewing in the Audio-visual (CATS) Department (phone #349-3111 or E-mail address: moneill@monroe.lib.in.us) of the Monroe County Public Library, 303 E. Kirkwood Ave.

The Board of Zoning Appeals (BZA) met in the Council Chambers at 5:30 p.m., members present: Aquila, Hoffmann, Williams, and Southern (Jo Throckmorton absent).

APPROVAL OF MINUTES: None at this time.

PETITIONS CONTINED TO: August 28, 2014

· UV-46-13 GMS - Pavilion Properties, LLC

306 E. Kirkwood Ave.

Request: Use variance to allow a bank drive-through in the Commercial Downtown (CD) zoning district.

PETITION WITHDRAWN:

· AA-27-14 Dylan Wood

308 W. Madison St.

Request: Administrative Appeal of the lawful non-conforming status of an existing multi-family use

PETITIONS:

· V-14-14 Jaina Solo Holdings, LLC

401 E. Cottage Grove

Request: Variances from front and side yard setback standards for a new single-family home.

Case Manager: Patrick Shay

Patrick Shay (Development Review Planner) presented the staff report. The property is located at the northeast corner of Grant Street and Cottage Grove, and within the Residential High-density (RH) zoning district. The petitioner is requesting variances from setback standards to allow an addition to a single-family home. For many years, this property has consisted of a single-family home that was a rental. It's surrounded by some multi-family and single-family structures. Shay noted that most of the multi-family use is located to the north and east. This structure was an older home with many additions; an existing detached garage is located on the northern portion of the lot. Originally the petitioner thought to construct a new five-bedroom single-family home, but worked with Staff to create a petition that would involve an addition to the existing structure with five-bedrooms. In doing so, this would create a second story and allowed them to fill-in a notch at the back portion of the property along Grant Street. Upon beginning construction of the addition, the petitioner's contractor discovered that many of the structural walls and sills were extensively damaged with rot and termite damage.
At that point, the contractor removed the walls of the former structure. However, it was determined by Staff that removing the walls was not consistent with the 2012 approved variances for the addition (A variance from the E. property line to allow an 11-foot setback rather than 15 ft.; the other setback variance was along Grant St.). Furthermore, several of the criteria for these variances were based upon the setbacks for the existing structure. With the removal of the structure, Staff found it necessary to require the petitioner to seek a "new" variance before construction could continue. So the Planning Department stopped the project. To that end, the petitioner is seeking approval to allow the same structure that was approved with the original variance package with minor elevation changes. These changes include the addition of a door to the north elevation and the addition of a dormer and bay window to the west elevation to further break-up the massing of the structure. Staff also had the petitioner explore an alternative plan that further reduced the massing toward Grant St. by removing a portion of the second story at the northwest corner of the structure. In the prior approval, the proposal was deemed appropriate. Shay added the proposed addition would consist of cementitious siding. Also, the east side is not changing with this request. The current proposal is to build in the exact same location as the previous structure-to rebuild at 7 feet; the code requirement is 15 feet. Many homes in the area have setbacks that range from 0 to 10 feet. Staff believes this is a unique situation that fits the development pattern of the area and therefore warrants variance. This is a multi-family zoning district that allows five bedrooms; it could have multiple units with additional density. Ultimately, Staff doesn't like how we got to this point, but the two variances being requested are appropriate. Also, the proposed addition is the same massing that was approved in 2012. Although the setbacks were justified by the setbacks of the former house, the proposed setbacks are still appropriate for the area. As a side note, Staff received support from the Old Northeast neighborhood association regarding this petition. Staff hasn't received anything formal from the neighborhood, but the neighborhood has voiced some concerns with the massing of the proposed structure. Staff recommends approval of this petition based on the written findings in the staff report, including the following condition:

1. The structure must be consistent with the submitted architecture.

Michael Brahms, petitioner, said he's seeking a variance from the required front and side yard setbacks. I'm presenting a plan that was originally passed in June of 2012. In 2012, Staff findings were that the scale of what I was proposing was consistent with other buildings in the neighborhood, and there were no negative effects from the proposal on adjacent properties. In addition, in 2012 I met with the Old Northeast neighborhood association and presented the proposal to them and they didn't have any objections at that time. Unfortunately, it was discovered during construction that there was severe rot (floor joists and sill plate), and it wasn't possible to construct a safe structure without taking down the walls. In retrospect, I realize that as soon as it was apparent that I couldn't construct the project as approved, I should've contacted planning. Certainly that is my issue and why I am here today. Subsequent to the Stop Work Order, I had a meeting with the neighborhood association and explained some of the issues. I also understood some of their concerns during the meeting because what was originally presented is not what was being done. During the neighborhood meeting, they expressed some of the things they would like to have done. One of the changes being done; look at the west elevation, there is a door that's been added making it more consistent with the original house. In addition, they expressed concerns about guarantees that vinyl siding would not be used. I'm willing to record a Zoning Commitment that says, "It will be cement siding." I was also told that the Highpoint neighborhood association had some concerns. Prior to meeting with the Old Northeast neighborhood association, I contacted Chris Clark via email and offered to setup a separate meeting with his neighborhood association. I was advised by Chris (via email) that he didn't think a separate formal meeting was necessary, and that his neighborhood association would be able to attend the meeting with the Old Northeast neighborhood association. At that meeting, they expressed support for lifting the current Stop Work Order, provided I followed the input they had given me at the meeting, which I've done. I also contacted Chris Clark again, later that week, to see if another separate meeting was advisable. I did not receive a response. In June, I contacted him once more and received no response. After that, I emailed Patrick (Shay) to see if there was another contact with the Highpoint neighborhood association. To date, I was never provided with another contact name. I tried to reach out in order to address some of those concerns but unfortunately I've been unsuccessful in doing that. Since the original proposal, the only difference is that the studs and floor joists are being replaced. The original foundation and original porch is still there-all of that is still preserved.

Jenny Southern said it appears that it's a 3-story now. Is the upstairs going to be finished in any manner?

Brahms said the second floor is finished but not the upstairs. The appearance that's being given in the elevation is not accurate and I apologize for that. The height is the same that was originally approved. The attic will not be finished so that language can be included in any type of approval.

Southern: So the basement and attic will continue to be unfinished and it will continue to be a five-bedroom rental?

Brahms said absolutely. In the Hearing Officer packet; in order to preserve the house there was significant pillars and columns added. Currently, there are probably 15 columns in the basement and 3 pillars. In order to use the existing foundation and still build on it, it was necessary to put that in. The only thing that will be in the basement is a laundry room. Also, it really isn't usable space because of all of the pillars and columns down there.

Southern: The parking plan is still the same from the Hearing Officer?

Brahms: Yes ma'am.

Southern: Will you be restoring any shade trees to make it look more like its single-family?

Brahms said something expressed to me, outside the context of the meeting, was adding a tree in the front which I'm willing to do. I can also add a tree in the back.

Shay said with new construction street trees are a requirement, so if this petition is approved street trees would be required. We just haven't gotten to the permit stage yet.

Southern: If the tree plot is too small or the utilities are under there, can we require them to put large canopy trees somewhere on the lot?

Shay: Yes. We require those to be put back on their own property if it is.

Southern said when we say something is "restricted to a five bedroom" or we give permits for a duplex, does this go to Housing and Neighborhood Development (HAND) so when they're doing inspections they know what they're looking for?

Shay said it's actually not a restriction on the number of bedrooms.

Southern: But it's not a grandfathered property for seven.

Shay: Right. They can only have five. If we see more than five bedrooms that obviously raises a red flag. With this one we've required a Recordable Commitment that limits any further changes to increase it over five. The restriction is actually already on that property that it can't be more than five. Housing and Neighborhood Development (HAND) reviews all of our building permits that are for rental structures, so they get the floor plan at that point and review it. What HAND has been doing recently is adding the variance conditions, if applicable, to the rental property and putting a copy of those conditions in the rental file. I can make sure that happens as well.

Joe Hoffmann asked Staff if someone were approved for a setback variance and built a structure in conformance with that approval, and then the structure burned down, would they be allowed to rebuild or would they need to seek a new variance.

Shay said they would be allowed to rebuild-same architecture, same everything. There is a clause in the code that references that issue.

Hoffmann said he was a little bit confused regarding the south elevation on Pg.11 in the staff report. He said when I look at that elevation and then I look at the page that has the elevation in 2012; the wing that sort of fades out on the left (previous approval). So it's not true that it's the same as before except for windows and doors, there is a gable that is now in the new proposal that wasn't in the previous approval? Is that what you call the dormer?

Shay: Correct me if I'm wrong, but it's the side view of that dormer. They've added that just to break-up the roofline. The petitioner would be willing to do it either way.

Hoffmann: I understand. So that was done at the request of people in the neighborhood to break it up?

Shay said the door was. I don't remember if the dormer was requested by the neighborhood. I think the petitioner came up with that on his own just to try and break up that side. I don't think it was specifically requested by the neighbors.

Hoffmann: Is the dormer the reason for why it looks like a three-story? A dormer would typically indicate there is some kind of room behind it.

Shay said it's his understanding that it's an aesthetic dormer and not functional inside.

Pat Williams asked how much square footage is being added with the "fill-in" of a notch on the side of the existing house.

Brahms said roughly 250 sq. ft. The fill-in is roughly 15x10 and then you have two-stories. It's not just the bottom story; it's also the top story on top of the fill-in.

Sue Aquila: Just to clarify, two stories are 500 total square feet?

Shay: Between 500-600 sq. ft.

Williams said I was concerned that adding three bedrooms with 250 square feet seemed rather small.

Sue Aquila asked if the Stop Work Order issued was the result of a complaint or inspection.

Shay said we got a call that the structure was down and they were building a new structure, which was the case, so we went out and placed a Stop Work Order on it and that Stop Work Order is still in place.

Aquila: Is a petitioner notified when they are granted a variance previously that if they do new work, they should stop and contact planning prior to that?

Shay: No. We expect that if a contractor and an owner doing work under a permit are revising that permit in any way, that they would contact planning. It isn't specifically expressed to them each time we issue a permit.

Aquila: So you weren't notified, you actually received a complaint?

Shay: Correct.

Southern: If a builder does this more than once does it get flagged or anything? Has this happened before?

Shay: Has it happened before? Yes. Has it happened with this petitioner? No.

Public Comments:

James Ford said I live on 12th Street between Washington and Lincoln Streets in the Highpoint neighborhood. I ride my bike by this house twice a day. This house is at the corner of my neighborhood. It's a nice place to live. There are a few rentals that don't have trees, but there are mostly a lot of trees especially on Cottage Grove. This house sat vacant for years then suddenly piece-by-piece it started coming down except for the porch. It was a two-bedroom house and they wanted to replace it with a five-bedroom house. I see the proposal is actually larger than it was a few months ago. It seems to blend much more into the neighborhood. If we could make it look like the neighborhood then I could probably support it. The alternative roof line is much more tolerable.

Brahms said regarding the loft on the second floor. Not only is there a requirement that there only be five-bedrooms, the previously approved Zoning Commitment that was recorded, shows "no walls constructed" blocking that off. It's not possible for it to be used as a sleeping area. There are no walls-it opens directly into the steps. With regard to the dormer, I'm perfectly willing to remove the dormer. The thought was to break up the elevation and make it more palatable to people walking by. There isn't any functionality of that dormer and it's never going to be used as a third floor. The dormer can certainly be removed. With regards to the scale and scope of it, I view the piece as a transition piece. If you were to look directly to my east there is a two-story apartment building. If you look directly north there is another two-story apartment building. If you look directly south of me there is a house, but then in front of that there is another two-story apartment building. Personally, I feel the proposed structure is stronger than the alternative because it will block the apartment building and provide more of a transition to the neighborhood.

**Hoffmann moved approval of V-14-14 based on the written findings, including the one condition outlined in the staff report. Southern seconded.

Southern suggested a friendly amendment to remove the dormer.

Hoffmann: I accept that friendly amendment.

**Hoffmann moved approval of V-14-14 based on the written findings in the staff report, except for the removal of the non-functional dormer.

Aquila: Patrick is that acceptable?

Shay: Yes.

Aquila said nothing bothers me more than people irradiating structures and then coming to the Board of Zoning Appeals and asking for forgiveness. I think this was purposeful. The structure was removed and it does impact our community. I'm voting NO tonight.

Williams said this is no longer a single-family residence. Again, I think it's an issue of mass and size, and it would not exist in a single-family home in that area. I too, have concerns about that, and I have concerns about an expansion from a two-bedroom to the size that they're proposing.

Shay said I know that it's larger than some. We actually have larger houses in single-family neighborhoods all over town. By our definition it's clearly a single-family structure. If the Board were going towards a denial, I would not be comfortable with making any criteria for denial based on the fact that it's not a single-family home.

Williams: But it's not going to be a single-family structure.

Shay: It is by our code definition.

Williams said even though that's not the use.

Shay: It is the use. Our "Family" is defined up to a maximum of five (5) unrelated adults in our code-it's a multi-family zoning district.

Roll Call: Motion carried 3:1-Approved (Aquila opposed).

· V-25-14 Angela Lexmond

1302 S. Henderson St.

Request: Variance from front yard setback standards for the placement of a shed.

Case Manager: Jim Roach

Jim Roach (Senior Zoning Planner) presented the staff report. The subject property is located in the Bryan Park neighborhood. The house is located at the southwest corner of Driscoll and Henderson Streets, and is zoned Residential Core (RC). The site has been developed with a single-family home and it's surrounded on all sides by single-family houses. The petitioner is proposing to construct a detached garage in the southwest corner of the property. This garage would be accessed from the north-south alley to the west that was built in conjunction with the S. Dunn Street development. The petitioner would like to keep this shed and relocate it to a different part of the lot. The proposed shed location is north of the garage along the street, between the garage and Driscoll Street. The issue in this situation pertains to the front yard setback. The required front yard setback off of Driscoll (the side street) is 35 ft. from the right-of-way. The proposed shed location is only 8 ft. from the right-of-way. This location would place the shed in violation of the required 35-foot front yard setback requirement. To that end, the petitioner is requesting a variance to allow a detached accessory structure closer to the street than would normally be permitted. The petitioner believes this is the most appropriate location for the shed because it avoids her existing gas lateral and aligns the shed with the house to the west. Roach said that he suggested an alternative location on the lot for the storage shed that would meet setback requirements. However, the petitioner was not in favor of that suggestion. Her main issue with that location has to do with the view. The shed in this location would block views to the southwest. If you were to sit on the deck, the only thing you would see looking to the southwest is the new garage, the relocated shed, and the neighbor's garage to the south. When approving variances, Staff looks at practical difficulties and peculiar conditions. In this particular case, Staff finds no peculiar condition or practical difficulty about the lot. Again, there isn't anything peculiar about the lot. It isn't any different than any other corner lot. Also, there is an alternative location on the property where a shed could be placed to meet City standards. Roach reiterated that this petition does not meet the requirements of the criteria for the variance and it doesn't meet the spirit of the ordinance itself. The spirit of the ordinance is to have sheds inside rear yards, and the proposed shed location is closer to the street than the house on the lot. Therefore, Staff recommends denial of this petition.

Angela Lexmond, petitioner, said my request is basically aesthetic. If I comply with the ordinance at 35 feet away, we're technically still talking about my backyard. Because I live on a corner, I have to treat part of the back yard as a front yard which is very confusing to me. We're talking about my back yard no matter where I put my shed. If I put the shed there, I also block my view of that garage which I really love. It's a 1920's garage with a chicken coop in the back. It's not used for chickens but that was its intention. I also put a moon on that garage-it's "my" moon, and that's how much I love that garage. Basically, I decorated my neighbor's garage so I can look at it and enjoy it. And putting the shed in that location creates a cluster of buildings and it blocks-in my patio. So I would basically have a cluster of buildings in one part of my property where the rest of the back yard is empty. Also, I removed a play structure in preparation for building the garage. Of course, this happened before I got an education about where you're allowed to put your buildings. So that's what was in that particular location-you can see the mulch spot. I would like to place my shed there so that I can put the new, one-car garage in the spot where the shed is currently located. I didn't know it would be best to line it up with my own house or with my neighbor's house (blue house). My own instinct says to line it up with the blue house in order to create consistency, rather than a snaggletooth look. I think my shed is cute and that my request is reasonable, including being aesthetically preferable. I presented my proposal to the neighborhood association and they approved it.

Roach added that Staff didn't receive any phone calls about the petition.

Jenny Southern said Staff often uses, in their staff report, a peculiar condition that something is a corner lot but we're not using it in this instance. Is it something that could be used?

Roach: It could be. The Board would have to find that corner lots in some way were different, and that they need a different standard. Yes, there have been instances where we've used the fact that corner lots in the code doesn't quite work right. In this case, we find that it does work. It does provide an appropriate location for a shed and a garage. I recall there have been instances where the setbacks have created a situation on the corner lot where nothing can be built. These are situations where the lot is so narrow that with the 35-foot setback, there isn't any room left over for anything, a garage or an accessory structure. That isn't the case here but if the Board disagrees, it's your prerogative.

Southern asked if the petitioner would be allowed to abut her shed to her garage and not on top of the gas line. It seems like a very petite structure. It would almost look like an "L" off of her garage if they abutted it.

Roach said it's certainly a possibility. I know there are some concerns about that because of a gas line. The gas line for the house runs just north of that.

Southern: Do you know the size of your structure?

Lexmond said it's 8x12.

Roach said it's possible the shed could fit in that area. It's my understanding that isn't where Ms. Lexmond wants to put it though.

Lexmond said she would prefer not to have to take trees out.

Southern: The peak of your garage faces the alley?

Lexmond: No, the peak doesn't face the alley.

Southern: It faces the street-Driscoll?

Lexmond: Right.

Joe Hoffmann addressed the petitioner. Although you prefer to line up with the house of your neighbor, you're also willing to line it up with your own house?

Lexmond: Yes. What I understand is that I have to avoid the gas line but I think there is room for me to get closer to the gas line.

Hoffmann directed this question to Staff. The spirit of the ordinance is to have sheds in back or side yards. Just in terms of that spirit, without regard to the 35-foot setback, if the shed were lined up with the existing house would it qualify as a side yard shed? If it didn't get any closer to Driscoll than the existing house would it make it a side yard shed?

Roach said it still wouldn't meet the requirements of the code.

Hoffmann: I understand that but I'm asking in terms of the spirit of the ordinance to have sheds in sides and backs.

Roach: One could argue that, sure.

Patrick Shay, Development Review Manager, said a little history as to where that comes from might be helpful. Our older ordinances; the normal setback for a single-family home was 25 feet, and 35 feet was in place at that same time. It was essentially saying that it was hoping to get it recessed back from the front of the house about 10 feet, which was the original thought.

Hoffmann: Understood. So the 35-foot setback is just for sheds and not for the houses?

Shay: Correct.

Hoffmann: So this house is conforming?

Roach said I would have to research it, but yes it's most likely conforming.

Sue Aquila asked Staff if there is room for giving variances, etc., in terms of enlarging the proposed garage. I know right now it's proposed as a one-car garage.

Roach: There is room for a larger garage.

No public comments.

Lexmond said I have no interest in a larger garage because the original structures in our neighborhood are little. I think a larger garage looks silly with a small house.

**Hoffmann moved approval of V-25-14. I have to make findings since this is contrary to Staff's recommendation.

Roach said just for criteria #3. I would urge you to use more than just the fact that it's a corner lot as a peculiar condition.

Hoffmann moved approval of V-25-14 on the grounds that I make a finding with respect to criteria #3. Not only is this a corner lot in which the application of the two 35-foot setbacks is peculiar, but also the fact that it's adjacent to a house in a different neighborhood that has different requirements that were specifically granted by the City Council. These setbacks were much different than would be "normal" otherwise for this district being a Planned Unit Development. It's the combination of the corner lot and the adjacency of the Dunn St. Planned Unit Development that is the peculiar condition. In addition, there is practical difficulty once one takes into account the aesthetics. This motion is to have the shed be no closer to Driscoll than the existing house. Williams seconded.

Aquila said I don't think there is a peculiar condition here. Although the petitioner doesn't want a larger garage, a larger garage is possible. I really think sheds are a problem in our community in terms of how people place them as well their upkeep. I also think they diminish surrounding properties, in most cases. Not that the petitioner would do this, but again, it's an on-going problem so I will be voting NO.

Roll Call: Motion carried 3:1-Approved (Aquila opposed).

· V-28-14 Heri Thirteen, Inc. (Swifty Gas)

2200 W. 3rd St.

Request: Variances from building and parking setbacks, karst, entrance and drive, landscaping and impervious surface coverage standards.

Case Manager: Jim Roach

Jim Roach (Senior Zoning Planner) presented the staff report. The subject property is located on the north side of W. 3rd Street, immediately east of where 3rd Street crosses the railroad tracks. This is an existing gas station on a very odd shaped triangular lot. This property is zoned Commercial Arterial (CA). The Growth Policies Plan (GPP) calls out for Community Activity Center style uses in this area of Bloomington. Surrounding the subject property to the east and south are vacant, commercially zoned properties. To the northwest is a vacant property that has been approved for an assisted living facility. Located to the northeast is a cemetery (Valhalla Gardens). The petitioner would like to demolish the existing structure-the convenience store, rebuild it and enlarge it. The enlargement would mostly take place to the east. As part of this proposal, the petitioner would bring the site closer to compliance with several parts of the Unified Development Ordinance (UDO). However, a package of variances is required for this development. Roach noted that demolition and reconstruction of a building requires complete compliance with code or variance approval. Some of the areas of compliance; the petitioner will be landscaping the property. Also, lighting will need to be replaced on the property to comply with the current City lighting ordinance. Bike racks will be installed as well. The petitioner will also be creating a dumpster screen where there isn't one now. In general, the petitioner plans to construct a new and modern building. However, several variances are necessary for this project in order for it to move forward. These variances include a variance from the karst regulations, impervious surface coverage, driveway standards, building and parking setbacks and street trees. Karst regulations; we don't see many sinkhole variances mostly because when they're proposed we turn them away immediately. However, this one is unusual. This property is at the upper reaches of a very large blind valley. The open karst hole is located south of 3rd Street along Cory Lane. Members who have been on the Board for awhile may remember the variance that was approved in 2005 dealing with this larger karst feature. Inside of this karst feature-- there are two streets, half-dozen homes, and several businesses. The karst feature has been graded and piked and altered in many different ways over the years. The proposed building addition would intrude into the 10-foot karst building setback; it's closer than 35 feet from the last closed contour of the sinkhole. Again, there was a variance approved in 2005 for the construction of the Advance Auto Parts store (Case #V-55-05). At that time, The Board of Zoning Appeals acknowledged the history of this feature and the small flooding area when this variance was approved. Roach noted the proposed building addition would intrude into the 10-foot karst sinkhole. Staff recommends approval of the proposed variance based on the 2005 approved variance within the same system at an even higher elevation. The next variance is from impervious surface coverage. Right now the property is 72% impervious. The petitioner plans to drop that from 72% to 67%. However, the code requires complete compliance which is 60%. The petitioner has made a valiant effort to find additional opportunities for green space; creating bump-outs around the parking lot, parking spaces, and landscaping. With the inclusion of three (3) parking spaces along the western property line as pervious pavers, that number is going to decrease even further. Staff recommends approval of this variance, with the condition that those three (3) spaces be replaced with pervious pavers. The next variances deal with driveway standards. There are two drive-cuts on the property. These drive-cuts were recently poured by the City in association with the W. 3rd Street widening project. However, they're just a little bit too wide. Right now the curb-cuts are 40 feet and the code maximum is 35 feet. In addition, the far eastern cut is 70 feet from the driveway to the east, whereas the City requires a 100-foot separation along arterial roadways. These cuts have been in existence for at least three (3) years and have caused no issues. Again, this whole street was completely rebuilt in 2011. Staff doesn't believe it's appropriate to remove them or make them narrower at this time. Also with the median all of these cuts function as right-in/right-outs; no left turns are permitted from these cuts onto 3rd Street. Still looking at driveway standards; the code doesn't allow for drives parallel to streets. This provision of the code was created to prohibit restaurant drive-throughs from wrapping around buildings. However, it also comes into play with gas stations, where you have cars that are entering into the canopy. This driveway parallel with the street is necessary to get the vehicles into the spaces where the pumps are located. Roach noted the canopy isn't moving and the pumps and the fuel tanks are staying exactly where they are now. Again, Staff recommends approval of this variance. Parking setback; this is a variance to allow for an existing condition to stay the same. The existing parking setback to the northwest (along the railroad tracks) is 3 feet. The code requirement is 7 feet. The proposal is to keep the 3-foot setback. This setback is necessary because of the existing turning movements of vehicles on the site. Increasing that particular setback would make it difficult for vehicles to get in and out of the canopy area. In addition, the setback is up against a railroad track and not against another use that might need an additional setback or buffer. The other requirement dealing with the parking setback is the front parking setback. Because all of the drives access parking spaces directly it's all considered parking. The parking standard is to have no parking any closer to the street than 20 feet further back from the street than the building. In this case, that would mean a 20-foot swath of the front of this property would need to be removed and returned to grass. It would also make access to those existing pumps under the canopy completely impossible. Again, Staff recommends approval. Next is a variance from the building setback. The existing building is actually over the property line and encroaches into the railroad right-of-way. The requirement for the new building is 7 feet; proposed is a 3-foot setback. So that 3 feet will get the building and addition off of the railroad right-of-way, and it would provide a buffer distance adequate to construct the building-to maintain the building, without encroaching into that particular right-of-way. Again, Staff also recommends approval of this variance request. The final variance is from street tree requirements. Seven (7) street trees are required; proposed is zero street trees. Roach explained there is a very narrow tree plot along 3rd Street-approximately 3 to 3-½ feet wide. In addition, there are utility lines underneath the tree plot; there is a gas main that runs underneath, making the planting of street trees impossible. Typically in situations like this, we would take those street trees and place them opposite the sidewalk. In this case, there isn't any room for them and no additional planting area. Therefore, a variance is necessary for those street trees. Staff believes there is peculiar condition and practical difficulty based on the triangular shaped lot. There are existing conditions on the property such as a canopy, pumps, and tanks on the property that aren't going to move. Also, there has been previous construction in the sinkhole including two streets; the lot is very small. Staff finds the recent road construction and the adjacency to the railroad tracks create peculiar conditions and practical difficulties for the full compliance with code. Staff recommends approval of this petition based on the written findings in the staff report, including the following conditions:

1. These variances only apply to existing use. Future redevelopment of the site may be required to meet UDO standards in place at that time.

2. Building must meet arterial architectural standards.

3. The three parking spaces along the northwest property line should be surfaced with pervious pavers to further reduce the impervious surface coverage percentage.

4. All existing and new lights must meet UDO lighting standards. This includes lights under the canopy and freestanding lights. Fixture cut sheets and photometric plan must be approved prior to issuance of a building permit.

Bradley Myrick, Bledsoe Riggert & Guerrettaz, said we're trying to implement a new building on the site and trying to meet as many of the ordinance requirements as possible. We've eliminated some of the existing concrete on-site to achieve additional pervious areas as well as implementing as many of the requirements as possible. We're looking forward to moving ahead and making this a better site.

Pat Williams asked if the underground tanks would remain in place. Are there any environmental concerns when the above ground structure changes, going from a 420 square foot structure to a 2,000 square foot convenience store? Does that additional weight in construction impact the structure of those underground tanks?

Myrick said we're not going to be building over those tanks.

Roach added that's one of the main reasons you see the odd shape of the building. The petitioner is trying to maximize their square footage while avoiding the tanks.

Jenny Southern said she's concerned about visibility for the approaching train and whether or not the train is going to mow down and spray any landscaping they put there. It seems if the building was encroaching; the only green embankment I saw over there was mowed, sprayed, and cleared excessively.

Roach: Good question. I believe this crossing has gates. Doesn't it? I just don't recall. At the very least, there are lights and the bell, which are triggered by the train quite some distance away from where the crossing is.

Southern said she wasn't thinking in terms of pedestrians but rather cars.

Roach said I can work with our Environmental Planner to pick some hearty species. In terms of visibility, because of the speed of the trains and the distance necessary before they would see anything, I just don't see it as an issue.

Hoffman said she's talking about a car seeing the train not the other way around. She's referring to a car westbound not seeing the train because there are no bushes there.

Aquila: I'm assuming there are warning lights there?

Roach: Yes.

Aquila said I think they're highly visible too.

**Hoffmann moved approval of V-28-14 based on the written findings, including the four conditions as outlined in the staff report. This includes the understanding the Staff will work with the appropriate entities on the proper landscaping. Williams seconded. Motion carried 4:0-Approved.

· V-29-14 Bryan Rental

401 & 505 W. 17th St.

Request: Variance from parking setback standards, minimum lot size, maximum impervious surface coverage and drive standards to allow a new parking area and lot line adjustment.

Case Manager: Eric Greulich

Eric Greulich (Zoning Planner) presented the staff report. The subject properties are both zoned Commercial General (CG). One has been developed with a Marathon gas station and the other has been developed as a Smoking Jacks restaurant. Between the two properties is a surface parking lot. Historically, the surface parking lot had been used for parking for the adjacent gas station that had a service repair use inside. This surface parking lot is covered with gravel from property line to property line, and had been used for storage of vehicles throughout its entire life. The petitioner is requesting a package of variances in order to allow for this surface parking lot, which is currently located on the gas station parking lot, to adjust the lot line to transfer the ownership of the lot to the restaurant property. The purpose for this is to provide additional parking for the restaurant. As part of this request, the petitioner is also requesting variances to allow for new parking spaces for the restaurant. Proposed are fourteen (14) parking spaces that would be added to the restaurant the property. Staff has evaluated what variances are necessary in order to allow the lot line adjustment as well as to allow the additional parking spaces for the restaurant. In order for this to move forward, a front yard parking setback is necessary since the proposed parking spaces would not be located 20 feet behind the front of the building. Staff has worked with the petitioner to move parking spaces as far south as possible, while still allowing them to use the parking area as well as install new landscaping. Again, a variance is needed in order to allow for some of the parking spaces to still be located in front of the building. Also requested is a drive standards variance in order to allow for the drive (between the two properties) to be parallel to the road. The Unified Development Ordinance (UDO) restricts driveways to 45 degrees or less. To that end, a variance is needed to allow for the driveway to connect these two properties. The reasoning behind this is to allow for traffic to move between both properties. Some sharing of parking is expected in this situation, but predominately the lot will be used by the restaurant. Also requested is a parking buffer setback variance. Because the properties to the southeast of the site are zoned Residential Single-family (RS), our zoning code has an additional 15-foot setback requirement for parking areas, in addition to the base 15-foot. In essence, it would impact a small portion of the existing drive and therefore requires a parking buffer setback variance. Also requested is a variance from the maximum number of parking spaces allowed for a restaurant. As previously mentioned, the petitioner is requesting a variance to adjust the lot line. There are two variances needed for the Marathon lot in order to allow for the lot line adjustment. One is from minimum lot size in the Commercial General (CG) zoning district. For a corner lot, code requires a size and a half of the typical lot size (1/2 of an acre), so about 55,000 sq. ft. would be the requirement. Proposed is a 20,000 square foot lot. The next variance being requested is a variance from maximum impervious surface coverage. Greulich noted that when the petitioner originally filed this petition, we were expecting the maximum impervious surface coverage variance; however we were led to believe that the gas station would be able to meet this on their own. Once the Board of Zoning Appeals packet was produced, Staff realized that the proposed petition wouldn't meet that requirement. Therefore, this is an additional variance that isn't listed in the staff report. As part of this petition, there would be some site improvements to the restaurant property. These improvements include new landscaping installed around the parking area to meet code requirements, and a new sidewalk installed along a portion of 17th St. Greulich noted there is a portion of frontage that is missing a sidewalk, so this would fill in the gap along 17th St. Landscaping would also be installed around the restaurant property to fill in some of the landscaping that has died over the years, and to also bring it up to compliance with current code. Again, one of the variance requests is to allow more parking spaces than what the Unified Development Ordinance (UDO) would allow. A parking study has been included as part of your packet that was done by the petitioner. The petitioner went out on a week-long basis and counted the number of cars that were in the lot, both on the restaurant lot as well as the gravel lot to the east. As expected, the two busiest periods are lunch and dinner time. The average need during these two times was somewhere between 30 and 40 cars. There was a maximum peak at one time where they needed 44, but in general, their need was in the 30-40 space range. Greulich noted that in the past, Staff as well as the Board of Zoning Appeals, have looked to meet not necessarily the demonstrated maximum need on-site but have aimed at the 80% median of what has been the maximum need. The UDO would only allow this 4,000 sq. ft. restaurant to have twenty (20) parking spaces. The UDO breaks down parking ratios for restaurants; restaurants under 5,000 sq. ft. have a parking maximum of one (1) space per 200 sq. ft., but as soon as you get to the 5,000 square foot restaurant one (1) per 100 sq. ft. would be allowed. So this same building, under the 1 per 100 would be allowed 40 parking spaces, which is more than what they're requesting but it's important to note a little bit larger building would be allowed to have more spaces. In Staff's opinion, thirty-six (36) parking spaces would be an appropriate number for this use. Staff also worked with the petitioner to come up with the most efficient parking arrangement that would maximize the amount of green space in the front. To that end, new green space will be installed and increasing the setback substantially along 17th St. Staff is recommending thirty-six (36) parking spaces, which matches the petitioner's request. Staff believes that all of the criteria have been met in this instance. Staff recommends approval of this petition based on the written findings, including the following conditions:

1. A lot line adjustment combining the improved parking lot on the eastern lot with the lot to the west must be recorded prior to issuance of a grading permit or work to establish the parking area.

2. All existing gravel on the restaurant lot must be removed.

Bradley Myrick, Bledsoe Riggert & Guerrettaz, said the attempt to provide the additional parking and inter-connection between the two facilities, as well as improve the movement and flow between facilities was the whole intent of the project. We were able to reduce some of the impervious materials by adding grass and landscaping. We're looking forward to moving ahead with this project.

Joe Hoffmann asked Staff if they've been working with the petitioner. So this is a one-way route around the building-as it comes around, people can either go left-out or right-out……(End of tape) either by design or signage to stop people from coming the wrong way into that parking area.

Greulich said we do expect there might be that situation. The petitioner will most likely be installing signage that indicates that it's a one-way drive. Hopefully, the angles of these spaces will also be a physical clue not to go that way.

Hoffmann said it's a particular problem because you have a drive-through coming out the other way.

Jenny Southern asked about the additional variance being requested that wasn't in the packet.

Greulich said it's the maximum impervious surface coverage variance for the gas station lot. The area that's being transferred (the parking lot) is 100% impervious coverage. With this petition, it would be transferring from the gas station over to the rib shack. So the impervious surface coverage on the gas station lot is exactly what is there now.

Southern: But we're giving them a variance for what, to maintain the 100%?

Greulich said the gas station is approximately 75-80% so it would in essence be allowing the gas station to continue in the same shape configuration. It's very similar to the variance from the minimum lot size. In essence, it's preserving the gas station lot and its use and how things have been developed, while allowing the transfer of this lot which has substantial improvements over a gravel lot.

Southern: And there is no fence other than the tree buffer behind the residential and the restaurant?

Greulich said the property boundaries have a lot of mature trees. Most of the use on this property is up towards the front.

Southern: Did I see in the landscape plan where its "red" behind the rib shack that they're going to put a big tree there or something?

Greulich: Yes. That area is currently graveled and they would clean it up and plant new landscaping to meet code.

Southern said since this is a large package of variances, can we request the preservation of the large trees behind? Those trees make a nice buffer to the neighborhood behind this.

Greulich said they're actually required to have that landscaping. If they were to remove any of those trees, they would have to replant probably more than what is there in order to make up for the credit they get for preserving the existing vegetation.

Myrick said I feel with the additional landscaping on-site, including the existing landscaping, I think we've done a good job keeping green space. We've minimized the amount of impervious material. We're looking forward to seeing this one move ahead.

**Hoffmann moved approval of V-29-14 based on the written findings, including the two conditions outlined in the staff report. In addition, this approval also includes the impervious surface coverage variance that was added by Greulich and not stated in the written staff report. Williams seconded. Motion carried 4:0-Approved.

Meeting adjourned @ 7:15 p.m.