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PUBLIC HEARING on
BZA-V-2001-02. Application by Bennett Grate, 1746 N. Terry Lane, Andover, for a variance of the minimum side yard from the required 8 feet to 5’9” in the
R-2 Single Family District.
CALL TO ORDER:
Chairman McEachern opened the public hearing at 7:39
p.m.
It is 7:39 p.m. and
I now call Agenda item # 5 which is pubic hearing on Case No. BZA-V-2001-02
pursuant to Section 10-107 of the City Zoning Regulations requesting a
variance of side yard setbacks from the required 8’ minimum limitation for
the purpose of construction a carport on property zoned as the R-2 Single
Family Residential District. Chairman McEachern welcomed the public to the
hearing and laid out some of the ground rules.
1. “It is important that you present any fact or
views that you have as evidence in this hearing so that findings can be made
as a basis of facts for the decision of this Appeals Board. In order to
grant a variance, five specific written findings of facts must all
be met according to the state statutes and the City Zoning Regulations.
2. This board is authorized by state statute to
make a decision appealable only to District Court and not to the Governing
Body.
3. After the Zoning Administrator provides us with
some background information we will call upon the applicant and then we will
hear from other interested parties. After all have been heard, each party
will have an opportunity for final comments. The Board will close the hearing
to further public comments and they will then consider their decision during
which time they may direct questions to the applicant, the public, the staff
or our consultant.
4. In presenting your comments, you should be aware
that the Board can require that the site be platted or replatted if necessary
or dedications be made in lieu of platting and that screening in the form of
fencing and/or landscape may be required. Furthermore, the Board may impose
such conditions upon the premises benefited by the variance as may be
necessary to comply with the standards set out in Section 10-107D which would
reduce or minimize any potentially injurious effect of such variance upon
other property in the neighborhood and to carry out the general purpose and intent
of these regulations, including methods for guaranteeing performance such as
are provided for in Section 10-108D. Failure to comply with any of the
conditions attached to the zoning permit for a variance shall constitute a
violation of the regulations.
5. You should also be fully aware that if the
applicant chooses to describe various features of their development plans,
the City can only enforce those provisions which are covered in zoning and
other City codes. For example, if the applicant proposes to build a brick
building with shake shingles and later decides to build a concrete block
building with asphalt shingles, it’s not something that the City can enforce.
6. Anyone wishing to speak must be recognized by
the Chairperson and give their name and address.
DISCUALIFICATION DECLARED AND QUORUM DETERMINED:
So at this time we would like to proceed with the
hearing and I would like to ask if there are any Board members who would want
to disqualify themselves from hearing, discussing or voting on this case
because they or their spouse’s owning property in the area of notification,
or have conflicts of interests, or a particular bias in this matter.
No one disqualified himself or herself.
NOTIFICATION:
According to Les Mangus, Zoning Administrator,
notice of this hearing was published in the Andover Journal on March 22,
2001. The notices were mailed to the applicant and the real estate property
owners of record in the area of notification on March 22, 2001. Unless there
is evidence to the contrary from anyone present, I will declare that proper
notification has been given. No one made any comment.
EX PARTE COMMUNICATION:
Have any of the Board members received any ex parte
verbal or written communication prior to this hearing that you would like to
share with other members at this time? As you know, it is not important to
disclose the names of the parties, but to share important information.
Chairman McEachern stated that Mr. Grate called him
and asked him to come over and look at the situation. Mr. McEachern told Mr.
Grate he could come look but couldn’t give a yea or nay as to what the Board
would do but that Mr. Grate could bring this before the Board. Mr. McEachern
did look at the property with Mr. Grate.
ZONING ADMINISTRATOR’S REPORT;
Les Mangus, the Zoning Administrator gave a brief
background on the case. He stated that this is a typical 10,000 square foot
lot in the R-2 Single Family Residential District. The peculiarity of this
property is that it has a side load garage instead of a front yard load
garage. Mr. McEachern stated that there is a letter from a neighbor that is
most affected, but he has no problem with the carport.
APPLICANT’S REQUEST:
Mr. Bennett Grate stated that he has lived there for
25 years. He stated that he talked to Mr. Mangus 3 times about the set back
issue and got the same answers each time. He stated he had measured and
measured again so he sent his builder in for a permit. That is when the
homeowner found that he had measured the side yard incorrectly and has
already put the 2 5” steel posts for the footing (36” deep and 2 ½’ square)
in the wrong place. He stated that it would take $500-$600 to cut these out
and put in new.
PUBLIC COMMENTS:
There were no public comments.
WRITTEN
COMMUNICATIONS:
There
was a written communication with the packet to the Board from Mr. L. W.
McGovern of 1738 N. Terry Lane who lives next door to the South of Mr.
Bennett Grate which stated he has no problem with the 2’3” variance that Mr.
Grate is asking for.
DISCUSSION BY THE BOARD:
Quentin
Coon asked which way the roofline on the carport was running. Mr. Grate
stated it is running the same as the roofline of the house. Les Mangus
stated that the Zoning Regulations allow for the roof the overhang 36” over
the 8’ side yard setback.
CLOSING
THE HEARING:
The public hearing was closed at 7:49 p.m. There
will be no further public comments unless the Board wishes to ask questions
to clarify information
APPEALS BOARD DELIBERATIONS:
The Board will now deliberate the request. First,
we need to determine if the request is one of the instances under which the
Zoning Regulations authorize us to grant a variance. For example, it cannot
be a “use” variance. Those permitted are found in Section 10-107C and are
listed as follows:
1. 1. To vary the applicable
minimum lot area, lot width, and lot depth requirements.
2. 2. To vary the applicable
bulk regulations, including maximum height, lot coverage and minimum yard
requirements.
3. 3. To vary the dimensional
provisions for permitted obstructions in required yards including fences in
Section 3-103F.
4. 4. To vary the applicable
number of required off-street parking spaces and the amount of off-street
loading requirements of Article 5.
5. To vary the applicable dimensional sign
provisions of Section 7-102 regarding general standards and Section 7-104
regarding district regulations.
6. To vary the applicable requirements in Sections
10-107 C1 through 5 above in conjunction with conditional use applications
for nonconforming, nonresidential structures and uses under provisions of
Section 8-105.
7. To vary the applicable provisions permitted by
the flood plain district.
Based on the application, this request meets the
criteria for Section 10-107C pertaining to a variance of the bulk regulations.
In determining whether the evidence presented
supports the conclusions of the five findings required by Section 10-107D1,
the Board shall now consider the extent to which the evidence demonstrates
that:
a.
The particular physical
surroundings, shape or topographical condition of the specific property
involved would result in a practical difficulty or unnecessary hardship upon
or for the owner, lessee or occupant, as distinguished from a mere
inconvenience, if the provision of these regulations were literally enforced;
b.
The request for a variance is
not based exclusively upon a desire of the owner, lessee, occupant or
applicant to make more money out of the property;
c.
The granting of the variance
will not be materially detrimental or injurious to other property or
improvements in the neighborhood in which the subject property is located;
and
d.
The proposed variance will not
impair an adequate supply of light or air to adjacent property, substantially
increase congestion on public streets or roads, increase the danger of fire,
endanger the public safety or substantially diminish or impair property
values within the neighborhood.
Each of the five findings of fact will be read and
our collective opinion will now be summarized for the minutes. When a
condition is not found to exist, the wording may be altered by adding or
deleting the word “not” as appropriate.
a.
That the variance requested
arises from such condition which is unique to the property in question and
which is not ordinarily found in the same zoning district, and is not created
by an action or actions of the property owner or the applicant; Yes, it
is unique to this property due to the size of the side yard.
b.
That granting of the variance
will not adversely affect the rights of adjacent property owners or
residents; Yes, the adjacent property owner has no concern with the
variance.
c.
That strict application of the
provisions of these regulations from which a variance is requested will
constitute unnecessary hardship upon the property owner represented in the
application; Yes, he will have to dig again and have additional costs.
d.
That the variance desired will
not adversely affect the public health, safety, morals, order, convenience,
prosperity or general welfare; Yes, it will not adversely affect the
public health, safety, morals, order, convenience, prosperity or general
welfare.
e.
That granting the variance
desired will not be opposed to the general spirit and intent of these
regulations. Yes.
In determining whether the
evidence supports the conclusions required by Section 1-107(D)(1), the Board
shall consider the extent to which the evidence demonstrates that:
1.
The particular physical
surroundings, shape, or topographical condition of the specific property
involved would result in a practical difficulty or unnecessary hardship upon
or for the owner, lessee, or occupant, as distinguished from a mere
inconvenience, if the provisions of these regulations were literally
enforced. Yes.
2.
The request for a variance is
not based exclusively upon a desire of the owner, lessee, occupant or
applicant to make more money out of the property. Yes, maybe for a
convenience, but not to make more money out of the property.
3.
The granting of the variance
will not be materially detrimental or injurious to other property or
improvements in the neighborhood in which the subject property is located. Yes.
4.
The proposed variance will not
impair an adequate supply of light or air or adjacent property, substantially
increase the congestion in the public streets, increase the danger of fire,
endanger the public safety, or substantially diminish or impair property
values within the neighborhood. Yes.
DECISION:
Having discussed and reached conclusions on our
findings, I now call for a motion and, if approved, any conditions that might
be attached:
Motion made by Joe Robertson, seconded by Ron Roberts as follows: Having considered the evidence at the hearing and determined that the
findings of fact in the variance report have been found to exist that support
the five conditions set out in Section 10-107 D 1 of the Zoning Regulations
and K.S.A. 12-759(e) of the State Statutes which are necessary for granting
of a variance, I Joe Robertson move that the Chairperson be authorized to
sign a Resolution granting the variance for Case No. BZA-V-2001-02 as
requested with no conditions.
There was no discussion. Motion passed 6-0.
Motion was made by Joe Robertson, seconded by
Quentin Coon to adjourn the Board of Zoning Appeals and reconvene the
Planning Commission.
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