MINUTES

Board of Adjustment Hearing

November 15, 2016

 

The Clarkson Valley Board of Adjustment, pursuant to notices posted October 31 and on the web page met at City Hall in the Clarkson Executive Center to consider three agenda items.

 

            Board of Adjustment Members present were:

                        Darryl Brody, Chairman

                        Tom Berkeley

                        Paul Mercurio

                        Phyllis Newmark

                        Terry Rosenstrauch

 

The City Attorney, Mr. Patrick Butler, and Building Commissioner, Jack Schenck attended and the City Clerk, Michele McMahon recorded the Minutes.  Board Members Jim Barry, Jack Hauser and Alternate Member Karen Koshak were unable to attend. 

 

The City Attorney and Chairman explained to the petitioners they are present tonight to ask this Board to grant a variance from the Clarkson Valley Code at Section 405.060.E.3. establishing that no building (or structure) shall intrude upon the area required for front, side and rear yards; Section 405.040 regarding attached garages; and Section 405.080 regarding garage openings by proving practical difficulties or unnecessary hardships in carrying out of the provisions of the code due to topographic or other conditions. 

 

The Chairperson then asked the petitioners if they had objections to any of the Members of the Board of Adjustment, to which they responded they did not.  He then asked the Board Members if they had an opportunity to view the properties to which all stated they had.  After the meeting was called to order and protocol established, the petitioners, friends, family members and contractors that were to speak this evening were sworn in.  Darryl Brody read the Notice of Public Hearing for the agenda items. 

 

1.  To consider the request of:

            June Hood

            2052 Kingspointe Drive

for replacement of an existing deck that extends beyond the rear building line by approximately 17'.

 

2.  To consider the request of:

            Mr. and Mrs. Young Park (Gerald Ellington, son-in-law)

            #1 Saddle Creek Court

to construct a non-attached garage/basement with a front-facing garage door that extends beyond the building line by 7.7'.

 

3.  To consider the request of:

Mark and Marla Maloney

129 Chippenham Lane

for new construction of a deck that would extend thirty-five (35) feet in length, approximately eleven (11) feet beyond the rear building line on the east side at its farthest point, approximately five (5) feet on the west side; and two retaining walls (Walls 5 & 6) on the east side of the lot that would extend fifteen (15) feet beyond the side building line for an approximate length of eighty-three (83) feet and approximately two (2) feet beyond the front building line.  (For the record, it is noted the highest point of the retaining walls pertaining to Agenda item 3 will not exceed 8'.)

 

Robert Weaver, with Chesterfield Fence and Deck, introduced himself, stating he is representing Mrs. June Hood.  He stated the Hoods contracted for replacement of the 28 year old deck.  He informed those present the builder of the original house constructed the deck which was approved in 1988.  The site plan submitted to the city at that time, however, indicated the construction fit within the building lines.  Apparently the builder shifted the original house to better fit the lot but the deck was then beyond the building lines.  He said if they rebuilt a compliant deck, the landing would be small and not fit the house.  He said the lot is unique as it lies on three streets.  The only neighbor that can view the deck has approved the request.  He concluded by saying he is here tonight to request a variance from the Board of Adjustment to replace the existing deck in the same location as the original construction.

 

The Chairman called for opponents or proponents, to which there was none.  The Building Commissioner made no comment.

 

The City Attorney, Patrick Butler explained to the Board Members the intent of the zoning code and read the merits and conclusion portion contained therein. 

 

Darryl Brody read the Agenda item again.  He asked the Members for their factual determination of the proposal to replace an existing deck that extends beyond the rear building line by approximately 17' to which: question (1) four are, one are not, (2) five will not, (3) five will, (4) five will not, (5) five will not, (6) five will.

 

The Chairperson then called for a vote of approval/disapproval to grant the desired variance to replace an existing deck that extends beyond the rear building line by approximately 17' with the following results:  Yeas.  Brody, Berkeley, Mercurio, Newmark and Rosenstrauch.  There were no Nays: 

 

The Chairperson declared the Hood's request for variance as having been approved.  Darryl Brody then advised Mr. Weaver the variance granted by the Board is based upon what took place tonight.  Any change making the variance greater than what was presented will negate the variance that was granted at this meeting. 

 

Darryl Brody read the second agenda item and gave the floor to the home owner’s son-in-law, Gerald Ellington, speaking on behalf of Mr. and Mrs. Young Park.  He introduced himself and his family and stated they are in the process of remodeling the existing house at #1 Saddle Creek Ct.  The house currently has a 2-car garage and they would like a 2-car garage addition with basement living space to create a retirement suite for his wife's parents and for his family with two children. 

 

He said they investigated other locations on the property but felt this configuration worked best with the topography.  He then mentioned he was requesting a variance for no connecting element, although the plans in the packet include the connecting element in case that does not pass.

 

Board Member Rosenstrauch asked if he considered taking the project to the right as you face the house to which Mr. Ellington responded they thought about pulling it forward, but then it would require a variance to the front yard setback.  Anything more than that, doesn't allow either because you are following a ravine.  If you pulled it back farther, it would align with the kitchen which wouldn't work. 

 

Chairman Darryl Brody asked if they considered a single car garage to which Mr. Ellington explained the Parks have one vehicle; they currently have two; and when the children get older, there will be more cars. 

 

Phyllis Newmark asked if they were still planning to construct a basement and they said they were.  He said he would love to have a workshop.

 

Mr. Ellington concluded by saying the existing and proposed garage floors are significantly below the ridge line cul-de-sac and are not readily visible from the street.  Additionally, the area is screened by existing trees and landscape.  He asked the Board to consider their requests favorably.

 

The Chairman called for opponents or proponents, to which there was none.  The Building Commissioner mentioned the necessity to consider the retaining wall which currently encroaches into the side yard.  If they will be replacing a portion of the wall, that will also have to be considered as part of the variance request. 

 

The City Attorney, Patrick Butler explained to the Board Members the intent of the zoning code and read the merits and conclusion portion contained therein.  He said the project requires four variances from the code:  Front-facing garage; detached garage (no connecting element); garage extending beyond side building line; and, retaining wall extending beyond building line.  The retaining wall is to be verified by a site plan if granted approval.

 

Darryl Brody read the Agenda item again to construct a non-attached garage/basement with a front-facing garage door that extends beyond the building line by 7.7' and replace a portion of an existing retaining wall that encroaches 25' into the side yard (to be verified by site plan) which: question (1) five are, (2) four will, one will not. (3) two will, three will not, (4) five will not, (5) five will not, (6) three will, two will not.

 

The Chairperson then called for a vote of approval/disapproval to grant the desired variance to construct a non-attached garage/basement with a front-facing garage door that extends beyond the building line by 7.7' and replace a portion of an existing retaining wall that encroaches 25' into the side yard (to be verified by site plan) with the following results:  Yeas:  Berkeley.  Nays:  Brody, Mercurio, Newmark and Rosenstrauch.

 

The Chairperson declared the Ellington's/Park's request for variance as having been denied. 

 

Darryl Brody read the third agenda item and it was determined this request would be considered by two votes; one for the deck; and one for the retaining walls.  Jim Zickrick, President of Landmark Construction and the general contractor for the Maloney's construction project took the floor.  He introduced himself along with the Maloney's.  He said the original plans for the deck were approved for a variance in October 2015.  He said if you granted a variance tonight, the Maloney's deck would be a standard rectangular shaped deck opposed to the one that conformed to the building envelope of the previous house (now demolished).  He said the deck will have a tempered glass railing and will not be an eyesore.

 

Mr. Mark Maloney then discussed the history of the land that was purchased by the golf course and how the building lines were reset.  He spoke of the Right of Restriction; the 1997 recorded Easement states that the Club "shall have no liability for injury to persons or animals, damage to property, or diminution in the usefulness or value of the servient property, by reason of exercise of the foregoing easement."  His point being if the Club believes the Easement is valid the Club has no liability for injuries that occur on the Chippenham property; the Club's opinions should not further restrict the enjoyment of the property by its current owners; the Club has no right to block the current homeowners from receiving the same variances that other homeowners have been granted.  He concluded that the decision to grant or not to grant the requested variance should be decided by the Board of Adjustment.  Discussion took place over private rights versus governmental rights, but everyone present agreed, the decision rests wholly with the Board of Adjustment.

 

Mrs. Maloney mentioned the safety aspect, considering the distance from the 11th hole tee box to the proposed deck, the chances that someone present on the proposed deck is struck by a tee shot vs. not being struck by standing on the previously approved design are infinitesimal.  She then mentioned the proposed deck is 14' wide, whereas the previously approved deck is 22'5" at the widest point resulting in a decrease in encroachment.

 

The Chairman called for opponents.  Scott Schultz, President of Trustees of the Forest Hills Club Estates introduced himself and said as a subdivision, we are very careful.  He asked why the Maloney's and their contractor didn't have everything approved before coming to the City.

 

Scott Douglass, Clarkson Valley Mayor, introduced himself and explained to those present the Board of Adjustment weighs the facts and makes a decision based on those facts.  He told the Maloney's he thinks they are building a beautiful home.  He said a house like this obviously has a reputable architect and the same criteria for the builder.  He asked why the architect and builder would not have knowledge of the codes of the City.  And if they did not, why didn't they ask?  Why wasn't the retaining wall requested at the first Board of Adjustment Hearing last year?  Why didn't you let us know you were removing the wall?  He concluded by saying this is what concerns him.  The contractor, Jim Zickrick explained to the Board he did not realize they required a variance to build retaining walls when the original house had retaining walls in the same location.  Chairman Brody corrected Mr. Zickrick stating the walls will not be in the same location, however, agreeing that the walls will perform the identical job they did with the original house.  Mr. Zickrick went on to explain the previous house had a side-facing garage and the new garage is rear-facing.  Further stating they had to move more dirt and need the walls for ingress to the garage. 

 

The Chairman called for proponents.  Mr. Hal John introduced himself, saying he has lived next door to the Maloney's on Herworth Drive for 16 years and has lived in his house since 1983.   He said they are building one of the most beautiful homes in the subdivision.  He is here tonight to support the Maloney's and hopes the Board will grant them their variance requests.

 

Mr. Ted Haumueller who lives on Chippenham welcomes this project in their neighborhood and likewise asked the Board to view these requests favorably.

 

Amy Setnicka, who lives around the corner one street away from the new house on Chippenham, said she is present tonight to show her support.  She said this house is a compliment to the neighborhood.  She reframed their request to state they are asking for a deck that is in proportion to the house.

 

The Building Commissioner made no comment.

 

The City Attorney, Patrick Butler explained to the Board Members the intent of the zoning code and read the merits and conclusion portion contained therein.  In determining a vote, the request for the retaining walls is based on the plans dated September 1, 2016 - Revision dated September 29, 2016 sealed by Michael James Yount, P.E.  It was also determined if the variance were granted tonight, an "as built" survey verification would be required.  Further stating that if the variance is approved; your request amends the previous approval and you are vacating the existing variance granted in 2015.

 

Darryl Brody read the first portion of Agenda Item 3 for new construction of a deck that would extend thirty-five (35) feet in length, approximately eleven (11) feet beyond the rear building line on the east side at its farthest point, approximately five (5) feet on the west side.  He asked the Members for their factual determination of the proposal to which: question (1) three are, two are not, (2) five will, (3) four will, one will not, (4) one will, four will not, (5) five will not, (6) four will, one will not.

 

The Chairperson then called for a vote of approval/disapproval to grant the desired variance for new construction of a deck that would extend thirty-five (35) feet in length, approximately eleven (11) feet beyond the rear building line on the east side at its farthest point, approximately five (5) feet on the west side with the following results:  Yeas.  Brody, Berkeley, Newmark and Rosenstrauch.  Nays:  Mercurio.

 

The Chairperson declared the Maloney's request for variance for the deck as having been approved.  Darryl Brody then advised Mr. and Mrs. Maloney and General Contractor, Jim Zickrick, the variance granted by the Board is based upon what took place tonight.  Any change making the variance greater than what was presented will negate the variance that was granted at this meeting.  He reiterated the previous variance for the deck is now considered vacated. 

 

Darryl Brody read the second portion of the Agenda item for two retaining walls (Walls 5 & 6) on the east side of the lot that would extend fifteen (15) feet beyond the side building line for an approximate length of eighty-three (83) feet and approximately two (2) feet beyond the front building line not to exceed 8' at its highest point.  He asked the Members for their factual determination of the proposal to which: question (1) five are, (2) five will not, (3) five will, (4) five will not, (5) five will not, (6) five will.

 

The Chairperson then called for a vote of approval/disapproval to grant the desired variance for two retaining walls (Walls 5 & 6) on the east side of the lot that would extend fifteen (15) feet beyond the side building line for an approximate length of eighty-three (83) feet and approximately two (2) feet beyond the front building line not to exceed 8' at its highest point with the following results:  Yeas.  Brody, Berkeley, Mercurio, Newmark and Rosenstrauch.  There were no Nays.

 

The Chairperson declared the Maloney's request for variance for the retaining walls as having been approved.  Darryl Brody then advised Mr. and Mrs. Maloney and General Contractor, Jim Zickrick, the variance granted by the Board is based upon what took place tonight.  Any change making the variance greater than what was presented will negate the variance that was granted at this.  Lastly, that an "as built" survey verification is required upon completion of the walls.

 

The meeting adjourned at 8:55 p.m.

 

           

 

                                                            Michele McMahon

                                                            City Clerk

                                                            City of Clarkson Valley