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HomeMy WebLinkAbout9/20/2018 - Zoning Appeal - Minutes -Board of Zoning Appeals MINUTES Thursday, September 20, 2018, 4:00 PM Council Chambers, City Hall, 114 North Broad Street 1. Call to Order A public hearing of the Board of Zoning Appeals of the City of Salem, Virginia, was held after due and proper notice in the Council Chambers, City Hall, 114 North Broad Street, at 4:00 p.m., on September 20, 2018. Notice of such hearing was published in the Salem Times Register, a newspaper published and having general circulation in the City. The Board, constituting a legal quorum presided with; Steve Yost, City Attorney; Charles E. Van Allman, Jr., City Engineer, Mary Ellen Wines, Zoning Administrator; Rita Wygal, Secretary and the following business was transacted: Chairman Dubois called the hearing to order at 4:00 p.m. and requested roll call: Mr. Sellers - Aye Captain Copenhaver - Aye Mr. Eanes - Aye Vice Chairman Gresham - Aye Chairman Dubois – Aye 2. Election of Officers Chairman Dubois pushed election of officers to the end of the hearing to move on with the requests before them today. 3. Approval of Minutes Chairman Dubois stated that there were no minutes to be approved. Chairman Dubois read the declaration for everyone in attendance. If anyone disagrees with the Board’s decision today, they have the right to appeal to the Circuit Court of the City of Salem. They must exercise their right to appeal no later than 30 days following the Board’s decision by filing a petition to the Circuit Court specifying the grounds to which they are aggrieved. He asked if everyone understood and, if not, ask questions when they got up to speak in front of the Board. 4. New Business A. Variance Request Consider the request of 17th Century Builders, LLC, contractor, and Allen and Linda McDaniel, property owners, for a variance from Section 106- 202.3(B)(1), minimum setback requirements, of the Code of the City of Salem, to allow the construction of an attached 24’ x 25.3’ garage at 430 Kimball Avenue (Tax Map #235-2-1). Section 106-202.3(B)(1) states that for corner lots the setback on the side street shall be equal to the setback observed by the principal structure on an adjoining lot. The adjoining lot maintains a 24.6’ setback. The petitioners require a 6.6’ setback. Therefore, the request is for a variance of eighteen feet (18’). Proper legal notice has been given, and the neighboring properties were notified. Mr. Steve Poff from 17th Century Builders, LLC, a contractor located in Salem, addressed the Board. Mr. Poff stated that he had come to represent Allen and Linda McDaniel, who are present and asked if everyone had a copy of the letter that he had presented and, if not, he had extra copies. He stated that the property owners have been at 430 Kimball Avenue for over 30 years and, with the need of wanting to look to the future to do a patio home, they could not find what they were looking for. The property owners approached him after he had done a garage behind them. He has known them forever. They thought they would proceed to try to do a garage that would make them happy so that they could stay within the City of Salem. Because of the endless search, as he alluded to in the letter, they could not find what they wanted. They would rather not relocate out of the jurisdiction here. With the surrounding properties, they could not find what they wanted. They want to stay here. Mr. Poff stated that the variance they are asking for of 18’, he will be honest he thinks is a little large. He has done some of these but, in this case, with the adjacent property that is behind them that dictates this setback, he does not think this is going to be a deterrent to the neighborhood at all. He has reached out to several adjacent property owners in the Kimball Acre area. They do not have a problem with it or at least they did not tell him that they did. With the grant of the variance, obviously, it does not change the zoning. It would remain Residential Single Family. He asked if everyone had the plat in front of them that he had presented. We can see that the McDaniels have a pool. With the given layout of their one-story brick ranch and with the pool in the backyard, obviously, they are not going to move the pool. They cannot go to the left. This is the most logical, practical place for this addition. It is highlighted there on the plat. The driveway is already in place. Really, what they are going to do is footing of three walls and erect the garage where the driveway is on the plat. To do so, the property owners need grant of the variance. He stated that the most logical, practical place is where it is highlighted. Even though it is a rather large request, he does not think it is a deterrent at all for the area. It is going to improve the look of their home plus give them what they want without moving out of their City of Salem jurisdiction. Being longtime residents as they are, he does not feel like they want to do that. Mr. Poff stated that he would like to open it up to the property owners if they would like to speak. He asked if the Board had any questions. Chairman Dubois asked if everyone has had a chance to look at the property and if there were any questions. Captain Copenhaver stated he thinks he knows the answer from the two plat drawings but asked if the garage itself does not expand the footprint of the driveway. Mr. Poff stated that is correct. The gutter line, which gutter lines count in the City of Salem jurisdiction for setbacks, is the second bold line where it says 1’ gutter. It is right on the outside of the pavement and that is the only thing that would encroach. Mr. Derr asked if the structure is going to be the same height as the house. Mr. Poff stated that the garage will be a little lower or they could make it the same. Chairman Dubois asked if they were going to blend it in with the existing roofline. Mr. Poff stated that he thinks it ought to step down a little. If you notice right in the center of the highlighted area, there is a series of outdoor stoop steps right there that are about 30” tall. If they start down at the ground and go up, they could go to this same wall plate and height. He is going to get technical as far as the top plate of the ranch house and even it out, then make the same plane. He stated that he thinks it would look better if it was set down a little and have that look from an aesthetic standpoint. Chairman Dubois asked if the City of Salem had noticed the stop sign on the corner and, if approaching that corner, whether the garage would block the stop sign. Mr. Van Allman stated that it would not. He stated that vehicles can pull out to see. On the technicality whether it is within the 25’ sight triangle, he is not sure because he cannot really place the road as it sits off the property line, but vehicles can pull up and get pretty good sight distance either way. Mr. Copenhaver asked if it would restrict the distance that drivers can see the sign while approaching. Mr. Van Allman stated that he did not believe that it did. Mr. Eanes stated that he had driven it a couple of times to see if he thought that there was an obstruction at the corner, and he did not think there was. Mr. Van Allman stated that he does not remember looking for the sign as much as getting up to the stop sign or at least a decent amount of space back from the sign and being able to look both ways for traffic because that is the movement basically as you are coming up and stopping and looking for traffic. On that, he clearly remembered that he could see both ways, but he does not know whether it would block the stop sign. He does not think it would but, without the structure there, it would be hard for him because he did not really think along those lines. He thought to come up to the stop sign, look both ways and is it clear. Captain Copenhaver asked, since there is not a street directly across, could a stop sign be put across the street directly in front of the road. Mr. Van Allman stated that usually that is frowned upon because it would probably confuse people more than it would help them. Mr. Poff stated that he had grown up in Kimball Acres over on Pearl Drive on the opposite end. He got his license in that subdivision and came to that stop sign many times going to church at Bethel. What used to be there was a sign with big pine trees, etc. on both sides because the Conners lived on the other side that was he thinks 500 Kimball. That was more of a deterrent to him. Allen and Linda McDaniel had those removed. He can understand that. He does not think the structure would deter in his opinion even if he was a young driver of 16 again. Vice Chairman Gresham stated that one of the requirements that they have here in the conduct of evaluating variances is to determine whether this property owner has a hardship that is not shared by the rest of the neighborhood. He asked if they could describe what that special case is as to why this variance should be granted. Mr. Poff stated that he does not see a problem that would arise. Mr. Copenhaver brings a good point about the stop sign. Mr. Poff agrees that safety is always first. He does not see a deterrent at all to letting this grant go through as far as the structure and the McDaniels having what they need to remain in the City of Salem. Vice Chairman Gresham asked that the hardship he is describing is their preference to have it there versus farther in the backyard as a garage or setting like that. He stated that really is not a hardship in the definition that they have to deal with. Mr. Poff stated that he understands. With the location of the pool, etc., they have had an addition on the east side of the property years ago where they extended so that negates that idea. There is no square footage over there within side yard setbacks. Mr. Eanes stated that since the major changes that were made in the State code in 2015, our State code and our ordinance say that a variance shall be granted if the evidence shows that the strict application of the terms of the ordinance would unreasonably restrict the utilization of the property or that granting the variance would alleviate a hardship due to a physical condition relating to the property or improvements. If there is one of those threshold questions that they feel this fits into, they would move to the five criteria that have to be present. Really, only three are applicable. The other two are rarely applicable but we have to make a finding if it gets past the threshold requirement. One, that the property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant. Two, the granting of the variance will not be a substantial detriment to adjacent property and nearby properties in the proximity of that geographical area. Three, the condition or situation of the property concerned is not so general or recurring a nature as to make reasonably practical the formulation of the general regulation to be adopted as an amendment to the zoning ordinance. Four, the granting of the variance does not result in a use that is not otherwise permitted. It is still for residential use, so that would not be applicable. Five, the relief or remedy solved by the variance application is not available through a special exception. It is not, so that one is also not applicable. The threshold question that the applicant has to answer is does the evidence show that the strict application of the terms of the zoning ordinance, the side setback in this particular case would unreasonably restrict the utilization of the property or that the granting of the variance will alleviate a hardship due to a physical condition relating to the property or improvements thereof. As we talked about many times since these changes in 2015, the prior requirements were more stringent. Before 2015, a property owner was required to prove that the zoning ordinance created an unnecessary or unreasonable hardship that would effectively prohibit or unreasonably restrict the use of the property. Most commentators he knows that are experts in this field feel that the 2015 amendments gave Boards of Zoning Appeals greater latitude than they had previously. There is still dispute as to some that think it really is not terribly different, maybe a little, and some that think it is a major change. He guesses they will find out when cases work their way through Circuit Courts, and they get Supreme Court opinions. One of the prongs, hardship, is one of the issues. There is another prong, however, they can go with in which the terms of the zoning ordinance unreasonably restricts the utilization of the property. Chairman Dubois stated it is difficult to say it does after they have been there for 30 years. Vice Chairman Gresham stated that it is their decision to make. Chairman Dubois asked if there was any correspondence or if there is anyone else who would like to testify. The staff reported that there had been no correspondence. Mr. Eanes asked about the statement by Mr. Poff that he had spoken to some of the neighbors. He asked if he had spoken to the next-door neighbor. Mr. Poff stated that he had spoken to Mr. Clingenpeel who is the one adjacent directly behind across the street which are fairly new neighbors. They just changed ownership over there. No opposition at all. They did not want to create any problems with a negative move-in. They were fine. Then the property behind that has sold as well. Neither one of them has had any opposition. Mr. Poff stated that he had done a garage for the Clingenpeels at 513 Pyrtle that was back in an alley that they closed maybe 2 to 3 years ago. Mr. Clingenpeel could not be here, but he does not have any opposition. If he had any opposition, he would be here. Chairman Dubois asked if anyone else would like to say anything. Mr. Van Allman wanted to point out that the right-of-way there is 60’ wide and then shrinks down to 50’. The City has no plans to utilize that extra 10’ of right-of-way because they would have to acquire more down the road and the traffic would not mandate that you need that 60’. Vice Chairman Gresham asked if that was the right-of-way on Pyrtle. Mr. Van Allman confirmed that it goes down to 50’ right behind the house. Mr. Poff stated he thinks that was a wise move in the development back at that time. Captain Copenhaver stated just to clarify that this proposed garage does not in any way move into the City’s right-of-way. Mr. Van Allman answered no. Chairman Dubois stated that what this means is if the people did apply to have that taken away, they could get those extra 10’ and then we would be asking for much less of an easement. Mr. Van Allman stated that they would get 5’ on either side when petition for a 50’. The City will usually not go below a 50’ right-of-way unless for good reasons. He seriously doubts that they have any utilities or anything in that area that would prohibit not granting that type of request. He cannot do that, only the City Council can, but he has seen many similar situations where there has been a petition for a vacation and they have been granted. Mr. Sellers stated that if they could redraw the lines, we would not be asking for an 18’ easement. Mr. Van Allman stated that they do not require to redraw the line by ordinance of City Council but we could. Chairman Dubois asked for any questions or comments and asked if there was a motion for approval. Mr. Eanes motioned for approval. Mr. Sellers seconded the motion. Chairman Dubois called for a roll call vote: Mr. Sellers -Aye Captain Copenhaver -Aye Mr. Eanes -Aye Vice Chairman Gresham—Aye Chairman Dubois -Aye Chairman Dubois stated that the request has been approved with unanimous vote. Chairman Dubois pushed to move to the next request. B. Variance Request Consider the request of Theresa L. Deel, property owner, for a variance from Section 106-202.3(B)(2), minimum setback requirements, of the Code of the City of Salem, to allow the placement of a storage shed at 319 East 7th Street (Tax Map #185-2-10). Section 106-202.3(B)(2) states that accessory structures shall be placed behind the rear building line of the principal structure. The petitioner is therefore requesting a variance to allow the placement of the storage shed in the side yard. Proper legal notice has been given, and the neighboring properties were notified. Chairman Dubois asked that they state their name, address and relationship to the request. Theresa Deel of 319 East 7th Street addressed the Board and stated that she has been the owner of the property since September of 2011. Last year, she had to remove a metal storage building that was placed on the property by the previous owner at the back of her driveway because of structural damage. She had no knowledge of what the code was regarding storage sheds in Salem. She assumed she could place it on her property. In her research with Mary Ellen Wines, she found out that she could not replace that metal storage building at all because she lost any grandfathering once she removed it. She has approximately 2.6’ of backyard space. She has no back yard. She feels that the code as it reads right now unreasonably restricts her use of the property because she has nowhere to store anything. She cannot put up her lawn equipment. She has to leave it uncovered in the driveway. Because she removed that building, she has nowhere else to put a building based on the code as it reads right now. Her proposal is that she would like to construct a moderately sized 8’ x 12’ or 10’ x 10’ storage building probably no taller than 10’ or so in her side yard which is more than large enough to accommodate that size storage shed. She believed that the Board had a picture of where she proposed to place it in her yard. She did speak with the neighbor that would be affected by that on the right-hand side in the condo and she does not seem to have any problems with it. It really would not affect her sight or vision as far as when she is pulling out of her driveway. She does not think it would affect the sight triangle. Her property is exposed to being on the corner lot. The property was subdivided prior to her purchasing, and it took her back yard, so she has none. Without a code variance, she has no way to put a building there. Chairman Dubois asked of her using the term construct and if she was going to buy prebuilt and move it in or is she going to build it. Theresa Deel stated that it is going to be a prefab building, probably from Lowes or Home Depot, one of the major big box stores. Chairman Dubois asked if she was planning on pouring footers or anything like that. Theresa Deel stated no. She commented that she is not an architect. She did build her own deck, but it will probably be constructed on a gravel base. If they recommend that she put in concrete footers, she may do something like that. It is not going to be big. Chairman Dubois stated in that case she would need a building permit and she would be better off just sitting it on something. Mobile is better in this case. Theresa Deel stated that it will probably be on a concrete base. It is not going to be anything fancy, and she would not be building it herself. That would be up to Lowes or Home Depot or wherever she buys it from. They would construct it for her. Captain Copenhaver asked if this was the backyard picture right here. Theresa Deel said yes, it was a picture of her side backyard. She stated the building she is looking at has black trim on it with the roof and everything so it will match the property. She has worked hard over the last 7 years to try to upgrade the property. Looking at the pictures of the property, one picture was not long after she bought the property and that metal storage building. There is no real landscaping to speak of. It is a work in progress right now and she does what she can afford to do when she can afford to do it. he house needs even more work, but this is a start. At least she would have somewhere. She has a lot of tools she has started building and doing things herself. It would give her a place to store those and it really would improve the way things look on the left side of the house. Right now, she has some fencing that is covered, and she has nowhere to put it so it sits in her driveway waiting for the fencer to install it. Everything has kind of been put on the back burner until she could apply for the code variance. Vice Chairman Gresham said he was not sure if she saw the comment about placement of the building being behind the house next door. Mary Ellen Wines confirmed that she had made that comment. Vice Chairman Gresham stated that without a tape measure, he cannot tell whether there is enough room to get that building in there. It is still set back. It looks she might have 6 to 12 to match the edge because she does not want to get too close to that air conditioning unit. She would have to get somewhere in between the air conditioning unit and the corner of the house. Whether or not she can get that 12’ building in there without measuring himself, he does not know. Mary Ellen Wines confirmed that there was room there. She stated that the way she had shown on the drawing is it is in line with the stoop of the adjacent home. Mr. Sellers indicated that there is a handwritten drawing that he may have not seen. Mr. Eanes said he had seen the drawing, but his question was going to be at the corner of the walkway, about the step coming down. He asked if that is the corner she is talking about. He asked if this is the actual corner of the house because if it is, when you come off the porch there of the neighboring house, when you come down, there is steps, then a little pad there. If it is the end of that, she has plenty of room to work with. If it is the corner of the house, it might be little. Theresa Deel stated it really will not be close to that. There is plenty of room even if she brought it out a little farther into the yard, that would give anyone plenty of room back there on the neighboring property. Vice Chairman Gresham stated that what she is wanting is at the neighbor’s house or the corner of the house, she does not want the building to jut past it and he is asking if it is at the corner of the house or at the end of the steps and the stoop. Mary Ellen Wines stated that they would prefer the corner of the house if possible. Vice Chairman Gresham asked if they would work with them if it was a little bit more or if it might be a problem. Mary Ellen Wines stated she could, depending on what the Board granted today. Mr. Sellers stated he actually went down and measured it today. He came 5’ off the deck and measured for a 12’ building and, as best as he could in line of sight by eye, it did not exceed the primary structure next door, not the stoop. If she gets a 10’ building, it would be well within the area. Vice Chairman Gresham added that from a technical legal perspective, the variance is from the zoning ordinance requirement that this accessory building be in the rear yard, but if the Board as a body was inclined to grant the variance, they can place conditions on the variance such as generally shown on this plat. referring to whatever Mary Ellen Wines stated, that the setback from Tennessee Street would not be greater than the front setback at the adjacent dwelling at 825 Tennessee. They could certainly make that a condition of the variance. Chairman Dubois stated that he wanted to make sure with a condition that we do not limit her so she has to come back and see the Board again. Captain Copenhaver wanted to ask a question that would help him with orientation and how they are setting this up. When she looks at the front of her home, if permission is granted to build it, will the door to the shed be on that same side or will the doors be on one of the sides. Theresa Deel stated that it will probably be on the same side because she would like them both to face the street kind of like a house and mini house. Captain Copenhaver stated that considering that situation, as we face the home and the proposed shed door, what we are asking here is that the side of your building cannot extend farther than the front of the house behind the shed. He asked if that was a good understanding. Mary Ellen Wines stated that is correct. Chairman Dubois asked if she can live with that. Theresa Deel stated that she thinks that she can do that. When she measured it, she noted the stoop and she did not think that it went that far. Chairman Dubois asked if there was any correspondence from anyone in the neighborhood. Mary Ellen Wines stated that she had a phone call inquiry, and she believes he is present today. Chairman Dubois asked if he had any comments and wanted to speak. Carl Hart, 720 Mt. Vernon Avenue in Salem and own the house across the driveway from Ms. Deel. She takes care of her place and has it looking nice. He does not have any problem with this at all. He is concerned about the fence she was talking about and they have adjacent driveways. That is the only thing he has a problem with is if she puts a fence, depending on where she puts it because the driveway is not wide, it could inhibit the use of my driveway that is between them. As far as the shed and it pointing towards the street, he thinks she will do a great job. He does not see a problem. Chairman Dubois asked about the fence there already and if she is talking about extending that fence. Carl Hart answered no. Theresa Deel stated that she is not planning on putting a fence between the driveway areas. The fence would start at the corner of her house. She would not fence her driveway in because she would not be able to get in it. Carl Hart stated that she will do a great job, and she is a good neighbor. Chairman Dubois asked if there are any other questions for Ms. Deel. Mr. Eanes asked Mr. Hart if his concern was with the fence, not with the building itself and if this is true. Carl Hart stated that Ms. Deel said she would not fence the driveway. Theresa Deel stated that she is not fencing the driveway in. the fence would run to the left-hand corner of her house. She has a dog, and she is considering fencing in just the yard itself. Mr. Sellers asked, based on where she is asking for the variance to go, he would assume that would be her preference no matter what existed. He asked if she would prefer it there and if that is correct. Theresa Deel stated that is correct because she has no back yard. Her preference would be where she has requested for it to go. Mr. Eanes asked Ms. Deel that, because she lost her grandfather for where the old shed was located, she really did not want the old shed there anyway. Theresa Deel stated that it did not look very good there. She stated that there was a shed in that side yard at one point on that property. When she went back and looked at some of the pictures from the property records, there was one. Chairman Dubois asked if anyone would like to make a motion to approve. Mr. Eanes made a motion to grant the variance with the stipulation that the east wall of the storage building not extend beyond the east wall of the primary structure next door. Captain Copenhaver seconded the motion. Vice Chairman Gresham also motioned that it would be placed in the location in accordance with the plat that she provided. Chairman Dubois stated that they will include the comment about the location on the drawing that she provided. Chairman Dubois asked for a roll call vote: Mr. Sellers -Aye Captain Copenhaver -Aye Mr. Eanes -Aye Vice Chairman Gresham -Aye Chairman Dubois -Aye Chairman Dubois stated that the request variance has been approved with unanimous vote and Theresa Deel can proceed with her building. Theresa Deel requested clarification on how sight triangles work. Mr. Van Allman explained at an intersection, there are property lines where they come to a point. What a sight triangle is as you come back from that point 25’ on the one approach, then 25’ on the other approach and connect those points. That gives a triangle area. Within that area, they cannot have anything that can obstruct or block the view to traffic including shrubbery. You can have things in there, but they cannot block the view. Theresa Deel asked if the measurement is from the corner of where her property line is. Mr. Van Allman stated that is right. The corner of the intersection of the property lines, which is actually going to be in the grass, and back 25’ on both lines, connect the dots and that makes a triangle. 5. Election of New Officers Chairman Dubois asked if there were any nominations for Chairman and Vice Chairman. Mr. Eanes asked how long the term is. It was confirmed that the term for officers is one year. Vice Chairman Gresham stated that there is also a provision that says that if an officer is not replaced, they serve until a replacement has been elected. Chairman Dubois asked for nominations for Chairman. Mr. Sellers motioned to leave the Board as it is right now. The motion was seconded by Mr. Eanes. Chairman Dubois asked for a roll call vote. Mr. Sellers -Aye Captain Copenhaver -Aye Mr. Eanes -Aye Vice Chairman Gresham -Aye Chairman Dubois -Aye Chairman Dubois asked for nominations for Vice Chairman. Mr. Copenhaver nominated Mr. Gresham. The nomination was seconded by Mr. Eanes. Chairman Dubois asked for a roll call vote. Mr. Sellers -Aye Captain Copenhaver -Aye Mr. Eanes - Aye Vice Chairman Gresham -Aye Chairman Dubois -Aye Chairman Dubois asked for nominations for Secretary. Mr. Sellers nominated Rita Wygal. Mr. Eanes seconded. Chairman Dubois asked for a roll call vote. Mr. Sellers -Aye Captain Copenhaver -Aye Mr. Eanes -Aye Vice Chairman Gresham -Aye Chairman Dubois -Aye Chairman Dubois asked if there were any unfinished new business to discuss. The Staff confirmed there was no unfinished business to discuss. 6. Adjournment Chairmen Dubois adjourned the meeting at 4:39 p.m.