BOARD OF ZONING
APPEALS
CITY HALL, 100
LOCKVILLE ROAD
THURSDAY, APRIL
27, 2006
PUBLIC HEARING
7:00 P.M.
A. Review and request for a motion to approve a rear yard setback variance for a deck at 992 Washington Street (Windmiller Ponds Subdivision).
Mr. Schultz stated Zoning History: None. Proposed Use. The owner is proposing to construct a 14-ft x 20-ft (280 square feet) treated wood deck that would be protruding into the setback by 4-ft. Variance Request: Chapter 1276.09 – Required Site and Building Dimensions – In a R-4 district the rear yard setback is 35-ft. The proposed deck and patio would be located approximately 31-ft from the rear property line to the north. It protrudes approximately 4-ft into the rear setback. The property has residential properties on both sides and across the street from it. The rear yard shares a property line with vacant land that is zoned R-4. The deck would likely impact the property to the north the most. Staff supports the deck if the adjacent residents do not have a legitimate compliant because it protrudes only 4-ft into the setback and the BZA has approved similar requests in the past. The subdivision has several houses with large decks and the proposal would not be out of character for this subdivision. Staff Recommendation: Staff supports the rear yard setback variance request for the deck with the following condition: That the rear setback for the deck shall be reduced from 35-ft to 31-ft. Additional Comments: An approved zoning certificate is required prior to submission for building permits.
Mr. Linek asked if all neighboring residences where notified and if there is anyone here to speak on this. The builder was in attendance, but had no further comments then what staff stated.
Mr. Wright
moved to approve that the rear setback for the deck shall be reduced from
35-ft to 31-ft. Mr. Cline seconded the motion. Roll was taken: Mr.
Linek, Mr. Wells, Mr. Boruszewski, Mr. Cline, and Mr. Wright voted “Aye”. Motion
carried 5-0.
B. Review and request for a motion to approve a side yard and rear yard setback variance for a house at 51 Homestead Drive (Tabled 2/23/06).
Mr. Linek entertained a motion to remove this item off the
table. Mr. Linek moved to approve Mr. Boruszewski seconded the motion.
Roll was taken: Mr. Linek, Mr. Wells, Mr. Boruszewski, Mr. Cline, and Mr.
Wright voted “Aye”. Motion carried 5-0.
Mr. Schultz stated Zoning History: None. Proposed Use: The owner has constructed an addition to the house that is located within the required 10-ft side yard setback. In addition, after review of the as-built survey provided by the owner, the house addition is constructed within 10-ft of the rear yard setback. The rear yard setback is required to be 35-ft. The owner is proposing to install a block wall adjacent driveway and shrubs and landscape stones along the side yard of the house. Variance Request: Chapter 1276.09 – Required Site and Building Dimensions – In a R-4 district the required side yard setback is 10-ft and the rear yard setback is 35-ft. Side Yard Setback: The house addition was constructed between three (southern portion of the elevation) and five feet (northern portion of the elevation) from the side yard property line. The property is surrounded by residential properties and impacts the house to the west the most because of the topography of the site. The owner is requesting a variance for a future block wall that would be located adjacent to the driveway. The wall would be required when the owner paves the driveway. A site plan is not provided to determine the setback variance requested. Rear Yard Setback: The owner constructed the house addition within 10-ft of the rear yard property line. The rear yard setback is required to be 35-ft. The house to the south is the most impacted because of the topography of the site. Analysis: Staff approved a building addition on May 25, 2004, that identified the proposed garage addition being 10-ft from the side yard setback and more than 35-ft from the rear yard setback (See Exhibit 1). The application submitted in 2004 is not consistent with the as-built survey provide in January 2006 because the 2004 application appears to identify a larger parcel in respect to the rear yard setback (See Exhibit 2). Furthermore, the garage addition was not constructed in the same location and configuration per the May 2004 application. In addition, the garage addition has evolved into a house addition. The construction of the house addition is not compliant with the following City development standards: Storm Water – Each site is required to retain/detain the storm water within the site and release it per City engineering standards. There are several outlet pipes on the site that releases stormwater on the adjacent properties. The site is required to comply with the City stormwater standards. Building Code – It appears the footer for the house addition is at finish grade on the southeast corner of the addition (along western elevation of the garage). Building code standards require a minimum 32 inches of soil (in height and width) above the bottom of the footer. The existing condition does not appear to comply with City building code standards. Engineering Standards – Developments are required to comply with accepted engineering standards as they relate to site grading. The site grading slopes (south and west) appear to exceed city standards. Recommendations: The garage addition does not meet side and rear yard setback zoning requirements and appears to be non-compliant with engineering and building standards. The Board of Zoning Appeals enforcement options range from requiring the owner to remove the portion of the structure that is non-compliant with the zoning setback requirement to approving a variance as constructed. At a minimum, staff recommends requiring the garage addition to be compliant with engineering and building code standards. In addition, staff recommends installing a landscape wall (see attached examples) along the west and south elevation to help create a more aesthetic appealing design for the adjacent residents. The landscape wall would create a barrier between the resident’s driveway to the west and south of the house addition and help reduce the visual impact. The building code and engineering requirements may necessitate a wall at these locations. Staff Recommendation: Staff supports the side and rear yard setback variances request for the house addition with the following conditions: That the site plan shall comply with City engineering standards. That the house addition shall comply with building code standards. That a landscape wall shall be constructed along the west and southwest portions of the site. That the side yard setback shall be reduced from 10-ft to between three and five feet per the submitted survey dated January 12, 2006. That the rear yard setback shall be reduced from 35-ft to approximately 9-ft per the survey dated January 12, 2006. That compliance with the engineering standards and landscape wall construction shall be completed no later than 3-months after BZA approval.
Mr. Linek verified why this needed two variances, Mr. Schultz stated the variances are for a rear and side yard setbacks.
Mr. Richard Ricketts, after being duly sworn, requested to have all others planning on speaking for the applicant be sworn in at the same time. Mr. Ricketts stated that he is the applicants attorney. Mr. Ricketts stated the magnitude of this case and wanted to bring all parties to the current status. This request was originally set for February 23rd BZA meeting and the Hall’s had contacted him on February 20th to understand the issue at hand. He requested the report from Mr. Schultz that was to be presented at the February meeting. He reviewed the issues and clearly identified that there are two major items, building code and site compliance requirements. He recommended that the Hall’s, myself and City staff meet and determine exactly what the issues were and move forward to resolve as many of those to make this processes easier and also move forward with demonstration of good faith by the Hall’s to address the concerns from staff. He requested for a continuance at the February 23rd meeting. Mr. Ricketts stated after that he had met with Mr. Schultz, Paul Lane, George Parsley, and Michael Stacy on March 1st, to discuss all outstanding issues as they currently understood them. After reviewing the comments from that meeting, Mr. Ricketts again met with everyone except Mr. Stacy on March 8th and provided a set of plans that had been prepared by Mr. Hall to address a number of those issues. On March 10th Mr. Ricketts clarified with Mr. Schultz of what were the remaining issues and also spoke with Mr. Lane about continuing our efforts to get things resolved. Mr. Ricketts also offered to meet with the adjacent property owners to see if there were any issues that could be addressed on March 20th. He did meet with some adjacent property owners and discussed drainage issues. Prior to the March meeting Mr. Ricketts had a discussion with City legal council and concluded that it would be in the best interest with everyone involved that they sought another continuance, at the March 23rd BZA meeting. He met again in early April with City staff and neighbors on site to try and discuss their concerns with stormwater. He also stated some personal happenings occurred to the Hall family during the last 30 days, which delayed some of the corrective work to be done. During a discussion earlier this week, Mr. Hall stated that even with the delay in the ability to do some of the work, he still wanted to move forward with this meeting. Mr. Ricketts stated based on conversation with Mr. Lane that there where just a few more outstanding issues. One being a concern of potential pop ups being put on drainage lines off the new structure and about alternatives to solve the drainage issues. Mr. Ricketts indicated it was his understanding the drainage issues has been resolved, but has not been conformed with Mr. Lane. Regardless the Hall’s are willing to address the remaining issues as a condition of approval. The second issue being the depth of the footer, on the southwest corner of the new construction. Mr. Ricketts can confirm that this is more than 32 inches clearance by personal observation. Mr. Parsley was there today but no official report has been released to confirm the depth of the footer. Now to move forward to address the six items for staff approval. First being the site plan should comply with the City engineering standards and the second one being the house addition should comply with building code standards. There is no opposition with these two items. Over the last few months the Hall’s have made a good faith effort to correct these issues and are not something that is of concern that relates to the condition of this approval. If there are remaining items that remain unsolved in the opinion of Mr. Lane, Mr. Stacy and Mr. Schultz as part of this process then we will review those items and continue to work on them in good faith. But is in my understanding as of today they have effectively been addressed. The third item is that a landscape wall be erected the west and southwest portion of the site. The Hall’s ask for consideration in approving the variance without this conditioned requirement. The fourth item is (number six) that the engineering standards and landscape wall shall be completed no later then three months after BZA approval. There is no issue with this as it relates to civil engineering and building code standards as long as everyone understands that the interior is still a work in process, and that Mr. Hall is doing this work himself. Mr. Schultz reiterated that the conditions pertain to engineer standards and the landscape wall site work. Mr. Ricketts stated that there is no difficulty with staff recommendations except for the installation of the landscaping wall. Mr. Ricketts provided exhibits of different pictures. Exhibit one indicates a relatively small cottage with substantial improvements to it over time and the addition is a material improvement and that the addition was not done with intent to harm. Exhibit two shows the different surveys that had been done over the course of this project. Myers Surveying Company, prepared the mortgage survey and where is most of the problems may have aroused. Mr. Ricketts stated the dimensions and placement of a preexisting shed in relevance to this addition. The discrepancy is in the surveys and that is noted on exhibit two in comparison to the preexisting shed and originally submitted survey. Surveys that were done where by Myers Surveying (mortgage survey) and Raab Surveying. Mr. Ricketts questioned why did it take two years for there to be any notice of this addition being in a setback area. Mr. Linek clarified that on the original mortgage survey the width of the garage was to be 27 feet. Mr. Ricketts stated the subject case is here because of the error in the surveys and addressing corrections to this. Mr. Ricketts made reference on how the Hall’s feel in a letter dated January 31, 2006, in the last sentence in the next to last paragraph on page 2: “we pride ourselves on trying to build a property that ourselves, our neighbors, and our city can be proud of and by following all the set procedures and guidelines the city, the inspectors, and building codes have in place. We would never knowingly and intentionally go against those procedures and codes.” Mr. Ricketts stated, even by concerns of others, feels that the Hall’s have tried to work things out in good faith. This was an innocent mistake and there was no intent to harm. Mr. Ricketts stated that there are other outstanding water drainage issues but hopes that as this discussion continues that things do not go off track. Also, he stated that it is true that things do need to be within code and that the Hall’s are working and feel that things are going in the direction. Mr. Ricketts indicated exhibit three shows the grade of the property before the addition. They are requesting to waive the requirement of adding a landscaping wall for the following reasons: 1. The grade is not substantially different from that the original yard. 2. There could be appropriate landscaping with grass and bushes and that should be enough and if this is not enough then in the future a wall would be installed if necessary. 3. The City had replaced the bridge on Center Street and that grass was installed and is working just fine at nearly the same grade as existing site . 4. The outstanding personal interaction with neighboring property owners could inhibit construction on adjacent properties. Mr. Schultz stated that he would like to clarify a few points. The drainage needs to be approved by the City engineer and has not be confirmed at this time. Sheds and garages are permitted to be 5-ft from the property line and the preexisting shed likely would have been there prior to our zoning codes. The mortgage loan survey, exhibit two, is not stamped by a surveyor and the bottom line on it states in capital letters: ‘The information shown hereon is not to be utilized for the installation of buildings, fences, landscaping or other permanent improvements.” It is incumbent on the owner that buildings be constructed in the appropriate location. The subsequent as-built survey indicates that they are within the setbacks. Mr. Linek asked for the age of the building, Mr. Schultz stated that is was likely built before zoning.
Mr. Craig Hall, being previously sworn in, stated that he is the home owner. Mr. Cline asked him that if it was obviously he knew that you had to submit plans to the City and that there are setbacks. When he staked this out didn’t he have any concerns that this may be to close to the property line. Mr. Hall stated that he did not stake this out and that he had a surveyor do that. Mr. Cline again clarified that when Mr. Hall started to build that he did all the work on his own. Mr. Hall stated that he did and the City required him to have a surveyor stake and string out the area and felt that he was within the setback. Mr. Cline again was trying to clarify with Mr. Hall if you know and understood the setbacks. Mr. Hall stated that he did and felt that he was within setback according to surveys that he had and that he tried to do everything in accordance to City code. Mr. Wells then verified the placement of the property pin, if it was in the middle of the driveway. Mr. Hall stated that the stakes in the driveway area had been moved several times (six times), by several different surveys and not even sure if it is truly correct at this time. Mr. Wells stated that when this was originally started that the pin was in the driveway. Mr. Hall agreed that the back pin had moved. Mr. Linek asked for any further comments.
Mrs. Athena Apple, being previously sworn in, stated she is glad to see such a beautiful addition. She stated that if anyone happens to live in a flood area it is their reasonability to take care of their own property and not to rely on all your neighbors to hope that their run-off doesn’t come into your yard. She questioned where are the stormwater drains in front of the homes.
Molly Meyer, being previously sworn in, stated that she lives on Homestead Drive. She stated the addition increases the value of the Hall’s home and the entire neighborhood.
Jeff Rogers, being previously sworn in, stated that Mr. Hall has did everything that he needed to do and if not he should not be where he is with this project. He agrees that this addition has added a great increase in value to the area. He also stated that he doesn’t feel that the Hall’s intentionally would go against any process.
Mr. Wright, stated that it is understood by this Board that there are a lot of emotion involved with this project but the decision of this Board is on the facts and not the emotions. We try to look at these cases by what I would do or be willing to do to be in compliance with the zoning code. Mr. Ricketts stated that they are willing to work with all but one condition, being the landscaping wall. Mr. Cline verified with Mr. Schultz that the drainage issue needs to be verified with City Engineer, which is required for every site in the City. Mr. Ricketts stated that as a condition of approval there is no problem with this requirement. Mr. Wright stated landscaping would not be a better option than a wall. Mr. Ricketts stated that the water is not from this addition but from across the street. Mr. Wright stated he doesn’t dispute that but this is the property that is being addressed. Mr. Hall stated that they purchased this property and that his wife had lived there for 40 years and that the grade of the property has not changed. Mr. Linek asked if Mr. Ricketts wanted to complete his presentation at this point. Mr. Ricketts referred to Mrs. Hall.
Carol Hall, being previously sworn in, stated that she had lived there for 40 years and had cut the grass for the last 20 years and that there has been no change to the grade of the hill and that the water drainage has not changed over the years. Mr. Ricketts then stated that the City of Pickerington variance request process is quite liberal compared to the ORC and the part of the Pickerington Code 1272.05: “a variance from strict application of the provisions of this Code for both zoning lots and sign regulations to relieve exceptional difficulties or undue hardship, provided such relief can be granted without substantial detriment to the public good”. This is the legal stance the City of Pickerington uses to consider the approval of a variance. The board should give consideration to the approval of this variance unless you find that it is of substantial detriment to the public good. Substantial is defined, under Ohio law meaning real, not seeming or imaginary. Detriment means loss or harm suffered in personal property. Public good isn’t just one adjoining property owner, but the good of the entire community. Mr. Ricketts stated that there is a substantial detriment and acknowledges these errors and to correct this in a fair and common solution. We ask for you to approve the variance and agree with staff recommendations on items 1 and 2 and make sure that these are done within 3 months. The only request that we are making is that you give consideration to whether or not the wall should be a requirement given the situations that exist. Mr. Wright, verified the number of downspouts and where do they go. Mr. Hall verified that they don’t go into the ground any longer due to City staff recommendation that pop-ups were installed and stated that everything was approved during an inspection today. Mr. Schultz stated that confirmation needs to be made with the building department about any and all inspections that were done today. Mr. Wright also requested flow from the sump pump, Mr. Hall stated that he did not have one. Mr. Linek verified how long ago did the work on the addition start. Mr. Hall stated a little over two years ago. Mr. Ricketts stated according to the zone approval stamp that it started around May 25, 2004. Mr. Linek asked how did it get this far. Mr. Stacy believed that a footing inspection was done in August 2004 and the inspector stated that the location was not something that was looked at. Mr. Linek verified that there were no measurements from lots lines. Mr. Schultz stated at that time this was the norm. Mr. Stacy stated that the only inspection until recently was a rough plumbing inspection in November of 2004 and there has been no known activity since then. Mr. Boruszewski verified that there was no framing inspection required. Mr. Stacy stated that yes framing inspections are required but there had been no inspections since November 2004 until early this year. Mr. Boruszewski asked if it is the property owners responsibility to ask for the appropriate inspections at that time. Mr. Stacy stated yes it is. Mr. Boruszewski stated that what he sees in the plans is a proposed garage, the pictures that have been presented is something other. Mr. Cline stated there is now living space. Mr. Ricketts stated that that is not in question, it is the structure only. Mr. Cline questioned about the plan submitted in 2004. Mr. Schultz stated that it was the site plan that was approved by planning and zoning department. Mr. Ricketts stated that the blue prints submitted to the building department has always been a two-story garage.
Mr. Linek
then swore in all others who wished to speak on this matter.
Ken Erwin, being previously sworn in, stated that he owns property to the west of this property and that the main issue has been drainage and how the drains are right on the property line. He also questioned who would build the wall. Mr. Ricketts was informed that as along as it was a contractor and not Mr. Hall it would be acceptable. Pictures taken by Mr. Parsley in regards to the water in the driveway was likely from a sump pump, since there was no other weather factors on that day. He has been a resident for 50 years and there has been a change to the grade due to this addition and that there should not be any variance given until this drainage problem is taken care of and this has been going on for five years. The reason that all this has come about is four years ago the City had the Hall’s remove some drains lines on the west side. Mr. Erwin had spoken with Mr. Parsley about these lines and at that time it was realized there was a setback issue.
Zela Erwin, being previously sworn in, stated that she is the co-owner of the property next door. That this water is coming from a sump pump and has pictures showing this. She stated that Mr. Leonard Lewis would not sign off on this project with the drains where they were. She stated that they have been working with the City to solve the water issue, but feels that if a variance is given Mr. Hall will not do as requested by the Board. Mr. Linek verified that in the picture was her driveway and that one of the drain pipes in question was coming out of the wall. Mrs. Erwin verified that it was along with the sump pump drain. Mr. Erwin stated that there was a survey done on a neighboring property in July and that was well after the project was started. Mr. Linek asked Mr. Erwin to show where his property is located. Mr. Erwin stated the Edna Erwin owns lots 3,4,5 and 6 and that he shares a driveway with Edna Erwin. Mr. Ricketts stated that one drain is the sump pump and that two other drains were for the original home and the other new drains related to the new construction were inspected today. Mr. Ricketts indicated that if there are any outstanding issues with the drains the Hall’s will work on correcting them. Mr. Erwin asked that even though they have been approved it also states in the code that your drainage should contained on your own property. Mr. Schultz stated that he needs to get all engineering issues verified with the City engineer and that he has not been given any final inspection reports. Mr. Schultz also stated that all drainage needs to meet today’s engineering requirements.
Paul Smith, being previously sworn in, stated that he has attended all the meetings and had spoke with several City staff members about this addition. Mr. Smith stated the wall would help prevent the dirt erosion. He indicated the landscaping for the bridge was done professional and works there, but feels that would not work on this property. Mr. Boruszewski asked Mr. Schultz about the difference in the placement of the addition being originally in line with the front of the home now the as built is set back about 25 feet. Mr. Schultz indicated that the building plans have never been approved. Mr. Linek asked if they were to be approved before start of construction. Mr. Stacy stated that there were plans submitted in 2004 and that he did not do the review of those plans. They were reviewed by someone else and the approval was given based on what was submitted is his understanding. Mr. Stacy does believe that there was an issue that came up in the middle of 2005 about the floor over the garage. Mr. Schultz stated that there has not been a final occupancy certificate issued. Mr. Stacy stated that from the meeting on March 1st that there where plans to be submitted to the building department to reflect what is actually proposed to build because the plans that were initially submitted did not include everything, plumbing locations, restrooms, etc. Mr. Stacy could not confirm if these where submitted to date or not. Mr. Schultz, stated that before the final occupancy certificate is issued the drainage issue must be corrected. Mr. Ricketts did concur that they will work on this as with the conditions of this approval. Mr. Erwin stated that he did see a letter that there was a “stop work” letter issued. Mr. Schultz stated he had no knowledge of that.
Edna Erwin, being previously sworn in, stated she is the property owner being effected and hopes that the wall will correct the drainage issue. Mr. Linek again verified that this setback variance is going from 35ft to 9ft in the rear yard. This does seem extreme and is considerable difference from the code. He further stated one of points of the City to have these codes is to allow people to enjoy their property as everyone else does, How do the Erwin’s get to enjoy their property by giving the Hall’s a 24-ft. variance? Mr. Ricketts stated that there really isn’t much change to the property in relationship to the preexisting shed. Mr. Linek stated that there is no relevance to a 40 year old freestanding shed to this attached addition in regards to the proposed variance and that this does not grandfather the new building Mr. Ricketts stated that there are different, Mr. Linek verified that the original garage was supposed to be 20 feet. Mr. Hall stated that actually it is smaller and not as tall as original submitted plans. Mr. Schultz stated that the City has one survey on file and that is the 2006 Raab survey.
Mr. Linek asked for any other questions from the Board. Mr. Cline asked Mr. Schultz about the size and height of the landscaping wall. Mr. Schultz stated without engineering plans being submitted we are not able to know the size. Mr. Schultz further stated that typically when such large variances are granted we request something like a fence or wall when protruding into a setback. Mr. Schultz stated that he would like to see submitted plans identifying the walls length, height and location. Mr. Boruszewski, stated that he would not have a problem tabling this for a month until engineer plans are submitted and reviewed. Mr. Schultz stated this case has already been tabled twice.
Bruce Caruthers, being previously sworn in, stated that he lives on Homestead Drive. There are flooding issues in this area and the City needs to clean the ditches out. He continued to state there have been water flow issues from this property’s sump pumps. Mr. Caruthers, stated that he has spoken with the City and has been told that they do not have City water. The fire hydrant was just flushed the beginning of this week at the corner of Homestead Drive and Center Street. Mr. Schultz stated that we will relay this information to the City Service Director to try and rectify the problem with the ditches. Mr. Erwin stated that he respected Mr. Caruthers opinion but that water coming from the drainage pipes and the ditches are two different problems. Mr. Linek stated that as Mr. Schultz stated everything discussed tonight will be taken in consideration at final approval and right know we are just considering the variance issues. Mr. Schultz stated that the issue tonight is not the flooding that is coming from other areas just the water run off from this property.
Mr. Cline
moved to approve with these following conditions: That the site plan shall
comply with City engineering standards. That the house addition shall comply with
building code standards. That a landscape wall shall be constructed along the
west and southwest portions of the site with plans submitted and accepted by
the City. That the side yard setback shall be reduced from 10-ft to between
three and five feet per the submitted survey dated January 12, 2006. That the
rear yard setback shall be reduced from 35-ft to approximately 9-ft per the
survey dated January 12, 2006. That compliance with the engineering standards
and landscape wall construction shall be completed no later than 3-months after
BZA approval. Mr. Linek seconded the motion. Roll was taken: Mr. Linek,
Mr. Wells, Mr. Boruszewski, Mr. Cline, and Mr. Wright voted “Aye”. Motion
carried 5-0.
Mr. Erwin asked if there was a time limit and the Board verified that there is a three month limit. Mr. Ricketts asked for a verification of the approval. Mr. Cline stated it was approved with staff recommendation with the addition of submitted plans that the City would be able to approve. Mr. Hall than stated why don’t all parties, himself, the City and adjoining property owners pay for the landscaping wall. Mr. Linek reiterated that the variance is granted as stated.
RESPECTFULLY SUBMITTED:
___________________________________________
Dawn-Elizabeth M. Romine, Administrative Assistant
ATTEST
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Lance A. Schultz, Director of Planning and Zoning