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HomeMy WebLinkAboutBoard of Adjustment 02/25/2004 MINUTES OF THE BOARD OF ADJUSTMENT REGULAR MEETING HELD WEDNESDAY, FEBRUARY 25, 2004 CALL TO ORDER Chairman Resnik called the meeting to order at 7 :05 p.m. in the Commission Chambers at City Hall. He led the Pledge of Allegiance to the Flag and led a moment of silence. Chairman Resnik called the roll and declared a quorum to be present. PRESENT: Chairman Resnik, Members Cox, Colburn, Kimbrell, and Wilsen. Also present were Building Official Phelps, Principal Planner James, Zoning Inspector Dunsford, Code Enforcement Officers Loeffler and Siegrist, and Deputy City Clerk Maxwell. ABSENT: Member Tice, who was unexcused. Vice-Chairman Savino, who has resigned. APPROVAL OF MINUTES Member Cox. seconded bv Member Kimbrell. moved to avvrove the Julv 24.2003. Board of Adjustment Minutes as vresented. Motion carried 5-0. NEW BUSINESS APPLICATION FOR VARIANCE - KOHLMEIER-KELLEY VR-04-001 Principal Planner James presented exhibits and the staff report for the Kohlmeier- Kelley variance located at 465 Meadow Sweet Court. BACKGROUND & DISCUSSION The Applicant is requesting a waiver to allow the driveway to encroach into the 2-foot side setback area required of all residential driveways. This encroachment is not allowed according to Subsection 6-4.H. (2) of the Ocoee LDC, which states in part; ".. . Any residential.. . driveway. . . shall be set back at least two (2) feet from the side or rear property lines..." Although "hardship" can be alleged, it was self- inflicted when the Applicants failed to adhere to specific instructions by the Zoning Inspector prior to the driveway widening construction. Also, according to Subsection 4-9.A. (1) through (4) of the LDC, the applicant does not meet the requirements of this variance. RECOMMENDATION Staff recommends that the Board of Adjustments recommend denial of the Richard J. Kohlmeier and Virginia R. Kelley variance request to the Mayor and City Commissioners, and further recommend that the case be referred back to the Code Enforcement Board to proceed with whatever actions is necessary to correct this violation. Board of Adjustment Regular Meeting February 25, 2004 Chairman Resnik inquired as to where the property line was in relation to the fence. Principal Planner James said the fence is on the property line but their concern is about the widening of the driveway. Members inquired as to why the neighbor on the left side of the driveway was allowed to have their driveway up to the fence line. Principal Planner James said he is not aware ofthe driveway to the left. He further stated Code Enforcement is only contacted on a complaint basis. A member of the board inquired as to who complained about the driveway. Principal Planner James said he believes it was some of the neighbors. Building Official Phelps said the complainant is anonymous. He further stated the key points to this case is that Mr. Kohlmeier was advised prior to the concrete being put down that he would be required to pull a permit. During the review process the Zoning Inspector stated that the driveway would have to be cut back and stay 2-feet offthe property line (fence line). The concrete was poured without the permit and approval to do the work that was performed, which resulted in Mr. Kohlmeier going before the Code Enforcement Board, who granted him sufficient time to apply for the variance. Building Official Phelps said, after reviewing the variance application, in his opinion there is no "hardship" and nothing that would require Mr. Kohlmeier to apply for a variance. Building Official Phelps further said that in this case it is not a variance for some work that they want to do in the future but a variance to try to correct something that has already been done. He also added his concern is if the variance is granted it will send a message to other citizens that the way to get around the code is to do what you want and then apply for a variance. Building Official Phelps said he supports staff recommendation of a denial. A member of the board inquired as to what work would be involved to correct Mr. Kohlmeier's driveway. Building Official Phelps said they could take a saw and cut a straight line down 2- feet off of the edge of the pavement and leave the broken concrete as crushed rock or lay grass down. It should be an area that allows water to absorb into it. A brief discussion ensued regarding others in the area that may have violated the same code and whether they would be required to bring their property up to code. Richard Kohlmeier, 465 Meadow Sweet Court, said he has done everything the Building Department has asked him too. He further stated he had offered to take 2-feet off and was told by the Building Department not to do that. He also tried to get a permit and the Building Department denied it. Richard Kohlmeier said he is not sure what else to do, this issue has been going on for months. Chairman Resnik inquired as to why the job was done without a permit when he was told not to do it. Mr. Kohlmeier said he would like for the City to show him where/when they told him not to do the work. Chairman Resnik then inquired as to when the permit was granted and why the work was done without a permit. Mr. Kohlmeier stated that a contractor did the work and Mr. Phelps was given the name of the contractor. Chairman Resnik explained to Mr. Kohlmeier that he needs to explain to the board his case and why they should approve variance and what the hardship was. Mr. Kohlmeier said there was no hardship, but that he did the driveway to beautify his yard. He further stated he poured the concrete to the fence line 2 Board of Adjustment Regular Meeting February 25, 2004 exactly the way it is done across the street. Chairman Resnik explained the code to Mr. Kohlmeier. Building Official Phelps said regarding staff stating the concrete should not be removed is something staff suggests if the applicant is intending to apply for a variance. He further stated they do not tell the applicant that they have to take the concrete up because if the applicant is granted the variance the City does not want to have to pay to put it back down. Building Official Phelps said the applicant could have corrected the issue anytime he wanted to. The public hearing was opened. A member of the board inquired as to when the work for the driveway was completed. Mr. Kohlmeier stated it was completed in August of 2003 or before that. A brief discussion ensued regarding the permitting process and what steps were taken. Zoning Inspector Dunsford said that the initial time that Mr. Kohlmeier applied for the permit for the fence and driveway was in March of 2003. He further stated during the review process he marked the height of the fence and showed the 2- foot width requirement to Mr. Kohlmeier. The permit was denied due to the homeowner not filling out the permit application properly. The homeowner had filled out the application under the name Kohlmeier and the property appraisers showed the home being owned by Virginia Kelley. Building Official Phelps explained to the board that when a permit application for owner/builder is received it must be in the name of the property owner. A member ofthe board inquired as to how Mr. Kohlmeier could request a variance for the property if his name is not listed as the owner. Building Official Phelps said Mr. Kohlmeier is representing Virginia Kelley. A member of the board inquired if Mr. Kohlmeier had a power of attorney or some authority to represent Ms. Kelley. A member of the board inquired if the property owner was ever advised in writing that a permit was required and that they had to have a 2-foot setback. Code Enforcement Officer Seigrist said they were told both verbally and in writing. Building Official Phelps said the issue they are at with this board is whether they will grant a variance to allow for the work that is already done. He further stated Mr. Kohlmeier was told by the inspector that he needed the permit and it had to be 2-feet offthe property line. A member of the board stated that fact could be disputed since the representative of the owner has said he was not advised. Building Official Phelps said if Mr. Kohlmeier was disputing the fact that he was not advised he needed to do so with the Code Enforcement Board when they granted his order to come into compliance. The Building Department satisfied the Code Enforcement Board that they had met the burden of proof but now the applicant has asked for consideration from the Board of Adjustment. A lengthy discussion ensued regarding the process of informing Mr. Kohlmeier of his permit denial. 3 Board of Adjustment Regular Meeting February 25, 2004 A member of the board said he thought the contractor was the person who was to pull the permit. Chairman Resnik stated they had something similar to this issue come before them in the past and it was relayed to them by the contractor that it is up to the person who is getting the work done to pull the permit. Building Official Phelps said it is the owner's responsibility even though some contractors may work as an agent on behalf of the owner and make application for them; it is the owner who must make sure that everything is in place. He further said the key issue to this variance is that it was acknowledged that a permit was required regardless of the 2-foot issue. Danny Howell, 895 Marlene Drive, briefly explained his meeting with Mr. Kohlmeier and the Building Department. He further stated there are 7 houses in that area that have the driveways right up to the property line. Danny Howell further said he has been to the property and does not feel there were any neighbors who had a problem with the driveway. He further stated he does not feel that it was the homeowner's responsibility to pull a permit ifhe hired a contractor. Danny Howell briefly explained he has been a contractor for 30 years and most homeowner's do not know anything about the building process. He further stated on most jobs that he does the owner almost never inquires if a permit was pulled. Pete Zeitler, 466 Meadow Sweet Court, said he is Mr. Kohlmeier's neighbor and is speaking in support of his neighbor. He said he has been in A/C contracting for 25 years and permitting is a difficult situation because most homeowners' do not have time to research the codes so they rely on contractors. Mr. Zeitler briefly stated the good work the City and Code Enforcement has done. He further said that he does not know who called in and complained but he would like to know what the issue was and their concern was. Mr. Zeitler said the codes are there for a purpose and citizens will never know all the codes like the Code Enforcement Officers; however, he would like to know what is the issue and concern of this case. Building Official Phelps said the City Commission created the Land Development Code as a way they would like things done in the City of Ocoee. He further said those codes are instructions for the Building Department to follow and that is what they are attempting to do. Mr. Zeitler said that there is a drain field along the driveway, which serves the purpose of the 2-foot section. He further said indirectly the code is met and he does not see the issue. A brief discussion ensued clarifying the initial complaint made to Code Enforcement regarding the Kohlmeier- Kelley property. The public hearing was closed Members reviewed the guidelines for a variance to decide if any of the guidelines applied to Mr. Kohlmeier's case. 4 Board of Adjustment Regular Meeting February 25, 2004 Member Wilsen. seconded bv Chairman Resnik. moved that the Board of Adjustment recommend denial of the Variance to the Citv Commission. Motion carried 5-0. OTHER BUSINESS None COMMENTS Chairman Resnik thanked Members for making it to the Special Session. Chairman Resnik announced Volunteer Dinner was to take place tomorrow at 7:00 p.m. Building Official Phelps apologized for not having all records of Code Enforcement for this particular case readily available. He further stated it was his first time attending a Board of Adjustment meeting. ADJOURNMENT The meeting adjourned at 8:00 p.m. i. Melanie Sibbitt, Deputy City Clerk For Brenda Brasher, former Deputy City Clerk John Resnik, Chairman 5