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HomeMy WebLinkAbout11031983BOAMINUTES OF MEETING OF VARIANCE BOARD - NOVEMBER 3~ 1983 MEETING WAS CALLED TO ORDER BY CHAIRMAN LOUIS PRIORE AT 7:38 P.M. PRESENT: CHAIRMAN LOUIS PRIORE, WALTER SHIELDS, ARNOLD PECHSTEIN, GALE MATTHEWS, CITY ATTORNEY DANIEL KILBRIDE, BUILDING OFFICIAL DANIEL BLAIR. ALSO: DONALD HUGHES, HARBOR FEDERAL, ALEAIS CUNNINGHAM, PROPE'RTY OWNER. ABSENt: ANNE O'BRIEN. CHAIRMAN PRIORE MADE THE FOLLOWING OPENING STATEMENT: WELCOME TO THE BOARD OF ADJUSTMENT AND APPEALS MEETING. THIS BOARD'S PURPOSE IS TO HEAR PERSONS AGGRIEVED BY THE STRICT, LITERAL ENFORCEMENT OF CITY ZONING CODE. THE POWERS OF THE BOARD INCLUDE HEARING APPEALS OF CITY OFFICIALS' DECISIONS CONCERNING THE ZONING CODE, THE GRANTING OF VARIANCES IF HARDSHIP SHOWS STRICT ENFORCE- MENT OF THE ZONING CODE TO BE IMPROPER, GRANTING OF SPECIAL EXCEPTIONS AS DEFINED BY THE CODE. THIS BOARD DID NOT CREATE THE ZONING ORDINANCE NOR DO WE AMEND IT. THIS IS THE PROVINCE OF THE CITY COUNCIL. WE MERELY DECIDE IF APPLICANT HAS A VERY SPECIAL REASON FOR NOT COMPLYING WITH THE CITY'S ZONING LAWS AS WRITTEN. WE TRY TO BE FAIR. IT IS UNDERSTANDABLE NOT EVERYONE WILL AGREE WITH OUR DECISIONS. CHAIRMAN PRIORE STATED THIS I~ A VARIANCE BOARD MEETING CONCERNING AN APPLICA- TION FOR A VARIANCE SUBMITTED BY MRS. AILEEN PRUITT, HARBOR FEDERAL SAVINGS AND LOAN ASSOCIATION, ON BEHALF OF MR. ALBAIS CUNNINGHAM, WHO OWNS THE PROPERTY INVOLVED, LOCATED ON LOT 30, BLOCK 301 UNIT 10, SEBASTIAN HIGHLANDS, 1319 BARBER STREET. SINCE THERE WERE NO MINUTES AVAILABLE FROM THE MEETING OF OCTOBER 27, CHAIRMAN PRIORE SUGGESTED THAT WE GO OVER THE HIGHLIGHTS. HE EXPLAINED THAT THE LOT LINE IS ENCROACHING ON THE SETBACK LINE BY 2 FEET'AND.SOME ODD INCHES AT ONE POINT AND 1 FOOT AND SOME ODD INCHES AT ANOTHER POINT. THE HOUSE IS SITTING INSIDE THE SETBACK LINE OF 10 FEET (THE SETBACK LINE ESTABLISHED BY THE ZONING ORDINANCE). THIS IS IN VIOLATION OF THE CITYIrS SETBACK CODE. CHAIRMAN PRIORE ASKED FOR INPUT FROM THOSE PRESENT. Mk. DONALD HUGHES, HARBOR FEDERAL, REVIEWED THE REASONS FOR REQUESTING THE VARIANCE. FIRST, THE EXISTING PROBLEM IS NOT THE FAULT OF THE CURRENT OWNER OR THE LENDER. SECOND, THE EXISTING INCONSISTENCIES COULD POTENTIALLY CAUSE HARDSHIP TO MR. CUNNINGHAM IN THE EVENT MAJOR DAMAGE WAS CAUSED TO THE PROPERTY AND HAD TO BE RE-BUILT ACCORDING TO CURRENT SETBACK REQUIREMENTS. THIRD, THE LOCATION OF THE BUILDING IS NOT VISUALLY PERCEPTIBLE AS THE CITY INSPECTOR MISSED THE PROBLEM WHEN HE INSPECTED THE BUILDING EARLY IN ITS CONSTRUCTION. FOURTH, THE IMPROVEMENTS DO NOT PHYSICALLY ENCROACH ON ANY SURROUNDING LOTS. FIFTH, THE SURROUNDING LAND OWNERS HAVE NO OBJECTIONS AS EVIDENCED BY THE VARIOUS SIGNED APPROVALS WHICH HE HAS SIGNED COP~ES OF. SIXTH, THE SALES CONTRACT WAS CONSUMMATED WITH THE UNDERSTANDING THAT THE VARIANCE WAS REASON- ABLE AND WOULD BE GRANTED. THERE IS ALSO A LETTER FROM MR. BLAIR RECOMMENDING THAT THE VARIANCE BE GRANTED. MR. HUGHES ADDED THAT THIS SEEMS A REASONABLE REQUEST. THE ORIGINAL LETTERS WITH--SIGnATURES E~~OM SURROUNDING PROPERT~ OWNERS WERE TURNED OVER TO TH~ VARIANCE BOARD. MR. BLAIR STATED THAT HE HAS LEARNED THAT THE HOME WAS ERECT~'D BY AN OWNER~ BUILDER, NOT BY A CONTRACTOR. MR. SHIELDS ASKED MR. CUNNINGHAM IF THE SURVEY WAS DONE BEFORE HE BOUGHT THE HOUSE. MR. CUNNINGHAM REPLIED THAT THE SURVEY WAS REQUIRED BY HARBOR FEDERAL AT HIS EXPENSE AND THAT IS WHEN THE PROBLEM WAS DISCOVERED. MR. SHIELDS ASKED HIM WHY HE BOUGHT THE HOUSE WHEN HE KNEW THERE WAS A VIOLATION. MR. CUNNINGHAM STATED THAT HE HAD CALLED SEVERAL PEOPLE ASKING WHAT THE SITUATION WOULD BE, CHECKED WITH HARBOR FEDERAL, AND MADE A CLOSING WITH ~EM PROVIDED THERE WOULD BE A VARIANCE REQUEST. MR. HUGHES REMARKED ~AT THE FACT IS THAT THERE WAS AN ERROR IN PLACEMENT; WHOSE FAULT IT WAS IS IRRELEVANT. HE ADDED THAT IT WAS HIS UNDERSTANDING ~AT THE PURPOSE OF THE VARIANCE BOARD WAS TO HELP TO SOLVE PROBLEMS. THIS PROBLEM HAS BEEN DISCUSSED ROUND AND .ROUND AND HE IS LOOKING TO HAVE IT WRAPPED UP. MR. MATTHEWS STATED HE DID NOT THINK THE BOARD SHOULD TAKE CARE OF VIOLATIONS OF THE BUILDING CODE. A VARIANCE SHOULD COME BEFORE, NOT AFTER THE DAMAGE HAS BEEN DONE. HARBOR FEDERAL IS THE REASON IT WASN'T BUILT PROPERLY. THEY WERE LOANING THE MONEY. MR. HUGHES WOULD NOT ACCEPT THAT BECAUSE IT WAS NOT THEIR RESPONSIBILITY TO BUILD THE BUILDING. ONLY RECENTLY HAVE LENDERS BEGUN TO REQUIRE SURVEYS. CHAIRMAN PRIORE REMARKED THAT HARBOR FEDERAL KNEW THEY WERE LENDING MONEY TO AN OWNER-BUILDER AND THAT OWNER-BUILDERS CAN'T BE RELIED ON LIKE GENERAL CONTRACTORS. YOU'RE LENDING THE MONEY AND IT SHOULD BE YOUR RESPONSIBILITY TO SEE THAT NO MISTAKES ARE MADE. CHAIRMAN PRIORE READ THE FOLLOWING STATEMENT: "VARIANCES SHOULD NOT BE GRANTED TO ENABLE AN OWNER TO RECEIVE SPECIAL ADVANTAGE SOLELY TO ALLEVIATE PERSONAL FINANCIAL DISTRESS OR TO RESOLVE AESTHETIC OBJECTIONS TO THE ORDINANCE. GRANTING A SPOT PRIVILEGE BY ADMINISTRATIVE FIAT UNDERCUTS THE INTEGRITY AND EFFICIENCY OF THE ZONING ORDINANCE. THE BOARD OF ADJUSTMENTS MUST ALSO FIND THAT THE GRANTING OF A VARIANCE WILL NOT CONFER ON THE APPLICANT ANY SPECIAL PRIVILEGE DENIED BY THE ZONING ORDINANCE TO OTHER LANDS, BUILDINGS OR STRUCTURES IN THE SAME ZONING DISTRICT OR A PARTICULAR ADVANTAGE NOT AVAILABLE TO OTHER SIMILAR SITUATED REGULATED OWNERS." WHAT' THIS MEANS IS WE CAN'T GRANT THIS SAME PRIVILEGE TO OTHER OWNERS IN THAT AREA. IF WE GRANT IT HERE, WE WILL HAVE TO GRANT IT IN OTHER PLACES. ATTORNEY KILBRIDE STATED WE ARE NOT TALKING ABOUT BUILDING CODE VIOLATIONS; WE ARE TALKING ABOUT ZONING CODE VIOLATIONS AND THE VIOLATION IS THAT IN THE R-1 SINGLE FAMILY DISTRICT IT REQUIRES THAT THERE BE A 10 FOOT' SIDE YARD SETBACK. CHAIRMAN PRIORE STATED HE WOULD ACCEPT A MOTION TO BRING THIS TO A VOTE. MOTION BY MR. MAT?'HEWS, SECONDED BY MR. SHIELDS, TO BRING TO A VOTE. CHAIRMAN P~IORE ASKED IF THERE WAS ANY MORE DISCUSSION. MR. PECHSTEIN STATED THAT MR. CUNNINGHAM HAS SPOKEN ABOUT' HAVING TO MOVE THIS STRUCTURE AS PART OF THE HARDSHIP IF VARIANCE IS DENIED. WHO SAID THE. BUILDING WOULD HAVE TO BE MOVED? MR. HUGHES STATED THAT IT IS HIS UNDERSTANDING THAT IF THE BUILDING IS 60% OR MORE DESTROYED, IT MUST BE RE-BUILT TO CONFORM WITH BUILDING AND ZONING CODE RESTRICTIONS. THAT IS THE POTENTIAL HARDSHIP. ATTORNEY KILBRIDE STATED THE REASON WE ARE HERE IS NOT BECAUSE IT'S A NON- CONFORMING USE. THE REASON IS THAT WHEN THE PROBLEM WAS DISCOVERED AND MR. CUNNINGHAM WAS ADVISED TO APPLY, WHEN THE PERMIT WAS GRANTED TO BUILD IT WAS WITH THE PROVISO THAT IT MEET SETBACK REQUIREMENTS. OBVIOUSLY IT WAS BUILT IN VIOLATION. YOU BROUGHT IT TO OUR ATTENTION. WHAT THE BOARD IS SAYING IS THAT THE VIOLATION CANNOT CONTINUE. IT MUST BE CORRECTED AND THAT IS THE RE~ON YOU ARE HERE NOW SO YOU DON'T HAVE TO MOVE IT. MR. PECHSTEIN FELT THAT WE WOULD BE SETTING A PRECEDENT TO GRANT THIS VARIANCE. MR. HUGHES REMARKED THAT HE THOUGHT THE WHOLE PURPOSE OF A VARIANCE WAS TO TAKE INTO CONSIDERATION CIRCUMSTANCES THAT MAY DIFFER FROM THE NORM. MR. PECHSTEIN AN EXCERPT FROM A SUPREME COURT RULING WHICH STATES THAT A BOARD OF ADJUSTMENT MUST FIND THAT SPECIAL CIRCUMSTANCES MUST NOT RESULT FROM A SELF-CREATED HARDSHIP. IT WAS ALSO POINTED OUT THAT THE PURPOSE OF THE BOARD IS TO ACT BEFORE THE FACT, NOT AFTER. MR. HUGHES STATED THAT THIS SITUATION WAS ONE WHICH WAS INHERITED BY HARBOR FEDERAL AND MR. CUNNINGHAM. HE ADDED THAT ASKED ATTORNEY KILBRIDE IF THE HE HAD NO FURTHER DISCUSSION. MR. PECHSTEIN KILBRIDE REPLIED THAT THE CITY BUILDING WOULD HAVE TO BE MOVED AND ATTORNEY COULD TAKE STEPS TO REQUIRE IT. MR. BLAIR ADDED THAT THE WHOLE BUILDING WOULD NOT HAVE TO BE MOVED. JUST CUT BACK 2 FEET. MOTION BY MR. MATTHEW,S,SECONDED BY MR. SHIELDS, TO DISAPPROVE THE VARIANCE. ROLL CALL VOTE: AYES: NONE. NAYS: MR. MATTHEWS MR. SHIELDS MR. PECHSTEIN MR. PRIORE UNANIMOUS VOTE ATTORNEY KILBRIDE ~KED THE BOARD IF THEY COULD GIVEYHIM SOME DIRECTION TO HE COULD ADVISE THE CITY WHETHER TO PURSUE THE CORRECTION OF THE VIOLATION. MR. PECHSTEIN FELT THAT THE CITY WOULD NOT REQUIRE THE BUILDING TO BE MOVED AND HAD NO OBJECTION TO IT REMAINING AS IT IS. MR. MATTHEWS CONCURRED WITH THIS CHAIRMAN pRIORE THOUGHT THE CITY SHOULD DO SOMETHING RATHER THAN LET . ~ THE DECISION OF THE BOARD IS GOING TO BE OVER- THE VIOLATION STILL EXIST. ~F , R THAN THE CITY BY ALLOWING THIS RULED, HE WOULD RATHER IT W~ THE COURTS RATHE TO EXIST. IF THIS HAPPENS THERE WAS NO POINT IN GOING THROUGH ALL THIS. MR. SHIELDS FELT THE BOARD HAS DONE THEIR JOB AS FAR AS THE VARIANCE IS CON- CERNED. MEETING ADJOURNED AT 8:41 P.M. MR. HUGHES THEN BROUGHT THE BOARD'S ATTENTION TO THE FACT HE BELIEVED IT WAS THE INTENT TO DENY THE VARIANCE. HOWEVER, THE WORDING OF THE MOTION AND THE VOTES OF THE MEMBERS WOULD GRANT THE VARIANCE. ATTORNEY KILBRIDE RECOMMENDED THAT THE MEETING BE RE-CONVENED. CHAIRMAN PRIORE CALLED THE MEETING BACK TO ORDER. MR. MATTHEWS W~ ASKED TO RE-PHRASE THE MOTION. MOTION BY MR. MATTHEWS, SECONDED BY MR. SHIELDS, THAT WE DENY THE REQUEST FOR A VARIANCE SUBMITTED BY MR. CUNNINGHAM. ROLL CALL VOTE: AYES: MR. MATTHEWS MR. SHIELDS MR. PECHSTEIN MR. PRIORE NAYS: NONE. MOTION CARRIED. MEETING ADJOURNED AT 8:48 P.M.