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BZA-V-2001-04 Public
Hearing on an application for a variance in the 6’ height limitation for
fences to 6’6” in the R-2 Single-Family Residential District.
CALL TO ORDER:
Chairman Coon opened the public hearing at 7:19 p.m.
It is 7:19 p.m. and I now call
Agenda item # 7, which is pubic hearing on Case No. BZA-V-2001-04 pursuant to
Section 10-107 of the City Zoning Regulations requesting a variance of 6’
maximum height limitation for the purpose of allowing a 6’6 fence on property
zoned as the R-2 Single Family Residential District. Chairman Coon 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 September 6,
2001. The notices were mailed to the applicant and the real estate property
owners of record in the area of notification on September 6, 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.
No one received any ex parte communication either
verbal or written.
ZONING ADMINISTRATOR’S REPORT;
Les Mangus, the Zoning Administrator gave a brief
background on the case.
APPLICANT’S REQUEST:
The applicant, Ed Hill, 1626 Lantern Lane, Andover, presented information regarding the application. Mr. Hill stated
that the fence is located on Douglas Avenue between the houses on Douglas Avenue and the mobile home park. He stated that due to the fence being placed in a
drainage ditch he needs a 6’6” fence to actually achieve the effect of a 6’
fence.
PUBLIC COMMENTS:
There were no public comments.
WRITTEN
COMMUNICATIONS: None.
DISCUSSION BY THE BOARD:
There was general discussion regarding the fence.
The general consensus of the Board was that a 7’ fence would be acceptable;
however, Les Mangus stated that the Board can only grant the advertised
request or a lesser request.
CLOSING
THE HEARING:
The public hearing was closed at 7:31 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. To vary the applicable minimum lot area,
lot width, and lot depth requirements.
2. To vary the applicable bulk regulations,
including maximum height, lot coverage and minimum yard requirements.
3. To vary the dimensional provisions for
permitted obstructions in required yards including fences in Section 3-103F.
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 a unique condition because single-family homes adjacent to manufactured
home park without a screening fence is unique.
b.
That granting of the variance
will not adversely affect the rights of adjacent property owners or
residents; Yes, the new homes in the Hilltop Addition are being built higher
than the mobile home lots.
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, the fence was already constructed.
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 because the additional 6” height is not a significant variance.
e.
That granting the variance
desired will not be opposed to the general spirit and intent of these
regulations. Yes, because screening fences are a common buffer between
differing zoning classifications.
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/True.
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/True.
2.
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/True.
3.
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/True.
DECISION:
Having discussed and reached conclusions on our
findings, I now call for a motion and, if approved, any conditions that might
be attached:
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 Sheri Geisler 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. John McEachern
seconded the motion.
There was no discussion.
Motion passed 7-0.
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