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HomeMy WebLinkAboutS-0326-O Staff AnalysisFILE NO.: S-328-D NAME: LOCATION• OWNER/APPLICANT: PROPOSAL: 1. Site Location Chelsea Square - Setback Variance 2111 Hinson Road, Lots 2 and 3 Floyd Fulkerson To reduce the setback along Hinson Road on Lot 2 from 30 feet to 11 feet and on Lot 3 from 30 feet to 28 feet. North side of Hinson Road in the curve immediately west of Pulaski Academy. 2. Compatibility with Neighborhood All of the nearby lots are single family, patio homes on small lots, some with very tight side and front yards. This rear yard area is the only conventional setback in the plat. 3. On -Site Drives and Parking All are to ordinance width or as approved by Planning Commission. 4. Screening and Suffers This is not an issue. A 6 foot brick wall screens these yard areas from Hinson Road. 5. City Engineer Comments There no comments to be reported. 6. Utility Comments There are no issues to be reported. 7. Analysis This plat and the housing type typically require adjustments when building these large houses on very small lots. One of these lots, Lot 2, is configured in such a manner that it is very difficult to build and meet a 30 foot setback. The lot is vacant at this time, but a buyer awaits a decision on this request. Lot 3 is more conventional in shape, but a different problem is presented. A permit was issued. A house constructed with an encroachment that was caused by the builder adding a fireplace on the north side and moving the house pad two feet south of the permit line and building line. 1 November 3, 1992 SUBDIVISION ITEM NO.: 13A and B (Continued) FILE NO.: 5-328-D Lot 3 is more conventional in shape, but a different problem is presented. A permit was issued. A house constructed with an encroachment that was caused by the builder adding a fireplace on the north side and moving the house pad two feet south of the permit line and building line. The owner approached staff to obtain setback. Staff refused in as much as plan and the Commission should review was given to all of the owners in the been received at this writing. 8. Staff Recommendation Staff recommended approval as filed. sign off on the this was a PUD site any change. Notice plat. No comment has PLANNING COMMISSION ACTION: (NOVEMBER 3, 1992) Richard Wood of the Planning staff offered the staff recommen- dation which was approval of the two variances requested. Wood offered a background on both of the lots indicating on Lot 2 that this lot is currently a vacant lot for which the approved site plan for the subdivision provides a 30 foot building line. Mr. Fulkerson, the applicant, desires to turn the structure 90 degrees on the property and extend the garage to the south, which would create the intrusion into the required 30 foot setback. The second request on this agenda was filed as the result of an enforcement action on a house under construction. The issue at hand is that the builder moved the house approximately 2 feet to the south in order to add a fireplace on the north wall of the structure. This movement beyond the authorized building permit placed the structure 2 feet over the building line. Wood pointed out that the issues before the Commission deal with the setback on both lots and no other issue. Wood stated that the neighbors have indicated that they have concerns about the placement of the existing structure on Lot 3. However, staff feels those issues are not pertinent to the specific request before the Commission. He further expanded on his comments to indicate the basis for the staff recommendation. Since the encroachment on Lot 3 is less than the 25% normally permitted without a variance and public hearing, staff might have signed off on the intrusion with approval of neighborhood association. On Lot 2 the proposed structure encroaches significantly more than 25% and this triggered the filing of the request for Planning Commission review. 6 November 3, 1992 SUBDIVISION ITEM NO.: 13A and B Continued FILE NO.: S-328-D The Chairman then asked the several parties signing cards, as interested in the request, to make their presentation. Mr. Shep Russell, the attorney representing the neighborhood association, began his presentation by offering that the neighborhood did not receive notice on Lot 2 of this application, they only received notice on Lot 3. He questioned whether the issue should be discussed on Lot 2 at this time. The Chairman asked staff to respond to this statement. Richard Wood of staff pointed out that the staff mailed two separate notices on this issue on Lot 2 first, and on Lot 3 at a later date. Both notices were mailed by certified mail through the City's mailing office. A list of all the current titleholders within the Chelsea Square Subdivision were utilized for mailing purposes. Mr. Russell then returned to his comments. He offered that the association's opposition here was not so much to these specific requests, but Mr. Fulkerson is not dealing with repairing and restoring several elements of the development which have been damaged in the construction of this houses and others, specifically the repair of the driveway on the neighbor's lot, Lot 4, adjacent to the north of Lot 3. There were other issues of concern such as cleaning up debris and its removal and damaged trees. The Chairman then asked if there were other persons present that wished to address the Commission. Mr. Tim Munro, a resident, represented the property owner's association, and offered comments concerning the history of this project and the difficulty with dealing with Mr. Fulkerson relative to the several houses which have been completed. He added a comment by saying one of their concerns was Mr. Fulkerson had not kept up-to-date or paid assessments on properties owned by him within this development. Dorothy Preddy, a resident of the neighborhood, offered her comments concerning her driveway which is in a damaged state as a result of the construction of the house on Lot 3. Ms. Preddy indicated that she had a serious problem with accessing her garage on the day of the construction with utilities to serve Lot 3. She indicated that she had difficulty communicating her concerns to Mr. Fulkerson and obtaining repairs to her premises. Mr. Fulkerson came forward and offered comments concerning his relationship to the street and contacts that he had made with the property owners. He said there was existing damage on the street prior to his project. Mr. Fulkerson indicated his communication with the neighborhood association had not produced a response. He stated that as a result of failing to receive any information from the association. He proceeded with a building permit and started construction on the house. Mr. Fulkerson commented on 3 November 3, 1992 SUBDIVISION ITEM NO.: 13A and B (Continued) FILE NO.: S-328-D the damaged driveway by saying that the City's Waste Water Utility spotted the location for excavation to tie the sewer line to the prospective house, and the plumber performed this excavation. He stated that he was not there and not aware of the issue. Mr. Fulkerson further stated he was prepared to repair this damage at such time when he places the driveway on the house under construction. He closed his remarks by saying that he felt any damages in the common area drive was the responsibility of the association, and not his. Commissioner Walker then made reference to the issue of the association Master Deed and convenants of the association. He asked Mr. Russell as to whether he had looked at the convenants with respect to the association relationship and with approval of the building line issues. Mr. Russell responded by stating that he had not reviewed that material. Commissioner Walker expanded his comments to say that with the wall which is in place and the absence of a request or need by City for additional street widening on Hinson Road, it appears the issue with the setbacks are matters for association to approve. Commissioner Walker stated he felt that his vote on this application would be one of releasing the issue to the neighborhood to deal with these various relationships. Mr. Russell indicated that he had not really looked at this issue, but regarding the request they only wanted to deal with one lot issue at this time, Lot 3. The Chairman then asked Stephen Giles, Assistant City Attorney, to comment on whether the issue is was one of involvement by the Planning Commission in the broader question of the condominium and in terms of design or simply the setback issues. Mr. Giles' response was that at this point, it appeared that the setback issues were the only concerns the Planning Commission could address. Mr. Russell then asked the Chairman if he would please have it explained for the neighborhood persons present, the ordinance or regulations requiring the action taking place at this meeting since they are not familiar with the regulatory structure. The Chairman asked Richard Wood of staff to respond to that request. Wood commented by saying that the reason these items are before the Commission is that staff had reviewed the ordinance standard for encroachment within a building setback on Lot 2, which was the initial contact by staff with Mr. Fulkerson. Our determination was that the encroachment exceeded the allowable 25% for administrative relief and that it would require a review by the Planning Commission to modify the plan. On Lot 3 a residence was issued a permit and in fact, has been constructed on that lot. The issue which had brought that matter to the Planning Commission was the movement of the structure after the permit was issued. The movement of some 2 feet encroaches upon a building setback line less than the 25 feet. However, we felt that because the two issues were associated they should both be approved by the Commission. 4 November 3, 1992 SUBDIVISION ITEM NO.: 13A and B Continued FILE NO.: S-328-D Wood stated staff had offered Mr. Fulkerson that he could perhaps approach the neighborhood and come to an understanding or approval of the two dimension issues. Wood stated that apparently Mr. Fulkerson felt uncomfortable with this, and this did not happen. Wood further elaborated by saying that in these kinds of developments, patio homes or condominiums, large homes on small lots, the office practice is to always gain insight of the association of the neighbors in some manner prior to taking any action that changes the approved plan. He indicated that staff was aware that it could not waive convenants or standards set forth in a Bill of Assurance or other condominium site provisions or in fact enforce those standards. Stephen Giles of the City Attorney's Office asked staff if they felt like they had the authority to sign off on this if it was less than 25% encroachment? Wood responded by saying that staff could have felt comfortable signing off on it, only with the approval or some sign off by the association. Jim Lawson then stated that this is a PRD, and not a conventional zoned or platted site, and what Mr. Fulkerson had offered was not in keeping with the approved plan. Commissioner Putnam then commented on his experience in dealing with condominiums. He felt that the Bylaws state very deep concerns such as setbacks and Bill of Assurance. He felt the Commission was a little early in acting until the issue was resolved by the association. Stephen Giles then commented that perhaps Mr. Russell and his clients now understand these are in fact private issues to be resolved internally. The question was then raised by the Chairman as to whether or not we had an issue to deal with. It was pointed that the discussion had apparently separated the two issues because one of the lots has a house in place and less encroachment. Commissioner Walker then commented that perhaps the Commission could deal with this as to the portion which may offend the public and return the internal issue back to the association. He ended this comment by asking Commissioner Putnam if he felt that the Commission should do nothing. Mr Putnam responded by stating that convenants such as this are out of our hands. A lengthy discussion then followed with several commissioners involved in debating the appropriateness of the commission action and the specific direction. Commissioner Walker felt that we should perhaps move to approve the public requirement, being the setback and leave the balance of the issues to be determined internally. Commissioner Nicholson asked whether it would be an appropriate action of the Commission. Stephen Giles responded by saying that the Commission had in the past voted on issues involving private convenants. He reminded the Commission that they had always been instructed to look too Bills of Assurance and such for guidance in making decisions on public matters. The Commission can vote on an item such as this, even if it conflicts with the Bylaws. 5 November 3, 1992 SUBDIVISION ITEM NO.: 13A and B Continued FILE NO.: S-328-D Commissioner Oleson then offered a motion that the two items be split on this agenda for vote purposes. In response to a question from Commissioner Nicholson, Commissioner Oleson stated that her motion was based upon her feeling that she was perhaps in support of one, but not the other. The notice issue was not the question for her because the staff had indicated that the notices were in order. Brief discussion of the separation issue raised the question of how the items arrived on the agenda together and two separate issues. Richard Wood of staff pointed out that Item No. 2 had been filed by Mr. Fulkerson as a request for variance based upon discussions at the building permit level. In the course of that review and preparation for this hearing on Lot 2, the enforcement issue on Lot 3 occurred and the two items were attached at that time. The Chairman then asked for a vote on the motion and the variance for Lot 3. The motion passed by a vote of 9 ayes, 0 nays, 1 absent and 2 abstentions (Selz and Putnam). After a brief discussion concerning the percentage of the encroachment, the brick wall and other relationships on Lot 2. A motion was made to approve the encroachment. The motion passed by a vote of 6 ayes, 1 nay, 1 absent and 3 abstentions (Selz, Putnam and Oleson). M