Those in attendance at the meeting were as follows:

Chairman: Bob Herb
Commissioners: Craig Belt, Frank Lombardi, and Dan Huntington
City Administrator and P&Z Secretary: Leigh Threadgill
Citizens Present/Guests: Arthur Salus, Donna Salus, Kieth McJenk, Ronnie Pridemore, Rob Pridemore, Joe Voyles and Irvin Gunter

I. CALL TO ORDER:
Herb opened the meeting at 7:36 p.m on July 16th, 2007 at 4040 South Berkeley Lake Road.

II. OLD BUSINESS:

a.) Minutes of the May 23rd, 2007 P&Z meeting

Lombardi motioned to approve the minutes. Belt seconded the motion. All were in favor. The motion passed.

III. NEW BUSINESS and PUBLIC HEARING:

a.) Variance to Section 39-804-5 of the zoning ordinance for 3805 Berkeley View Drive to reduce the required rear setback from 40 feet to 34 feet

Herb explained that just one corner is encroaching into the required setback and the applicant is looking for a 5’7” variance for the required rear setback of 40 feet. 

Salus introduced his application. He stated that he has lived in Miramont since 1996, and that he got into this addition to his home because of a major sinkhole in his back yard. 

He showed pictures of the sink hole and of the construction. He stated that he pulled a permit on April 16, 2007 from the city. Six weeks later the ordinance enforcement officer issued a stop work order because the structure encroached into the rear setback requirement along Ridge Road. He stated that he was about 80% complete when the stop work order was issued, and he is asking for the variance to finish the addition. The only portion of the addition that encroaches is one corner representing about 4.7% of the addition. All other requirements are met.  He stated that if he had known that the structure encroached he would have reduced the size of the addition.

Salus presented an inspection card signed off by the building inspector that indicated a pre-footing sign-off.  He stated that the plans submitted to the city for approval with the permit application did not show the detail of the new structure, but now he has cetified plans. He indicated that the rear property line is actually beyond the fence at the rear of the lot.

Lombardi asked if the setback request included the drip line of the structure. Herb stated that it did and that he has a very small roof overhang. The drip line only comes out about 6 inches.

Lombardi asked if the initial plans submitted for the permit application indicated the distance of the addition from the rear property line. Salus stated that the plans did not.

Herb stated that it doesn’t matter if the structure is complete when the violation was noticed, even if the plans submitted showed everything, the homeowner is ultimately responsible. Herb stated that there is a committee looking at ways to ensure that city staff catches these kinds of things during the plan review of the building application.

Herb stated that the irregular shape of the subject property was sufficient to allow the variance to be heard. The other key part is that only a small percentage of the structure is encroaching into the 40-foot required rear setback.

Belt asked about the undisturbed buffer requirement along the rear of the property. Salus stated that that was a 25-foot requirement from the rear property line, which is noted on the plans.

Salus stated that the county would have measured the distance to the rear property line on right angles from the rear of the structure because of the curve in the rear property line, and the relationship of the subject corner to the rear property line.

Belt asked Salus to confirm that there is no structure encroaching into the required undisturbed buffer, and Salus stated there was no encroachment into the required buffer.

Huntington asked how far the rear property line is off of Ridge Road. Herb stated that the road is very close to the rear property line. Salus stated maybe three to four feet.

Salus stated that the city should require a certified plat for any building permit application. 

Lombardi asked about the foundation inspection. Salus stated that the building inspector did not come out to do that inspection, even though it was requested. He stated that the building inspector inspected the footings but said that he didn’t need to return until the electrical work was ready for inspection.

Herb stated that a citizen committee is looking at requiring a survey to be performed at two points of the construction, the initial phase and at the end of the project because right now there is no way to verify that what is built is consistent with the plans that are submitted with the building permit application.  Essentially, this committee is looking at requiring an as-built, but if a survey is required earlier in the project, the hope is that any zoning violations will be noted then.

Lombardi motioned to approve the variance to change the required rear setback from 40 feet to 34 feet for 3805 Berkeley View Drive. Huntington seconded the motion.

Herb called for discussion. Lombardi asked for past history regarding approvals of the variance in situations such as these when structures have already been under construction.

Herb stated that you have to think about the request as if no construction had occurred. It doesn’t matter that the addition is almost complete. Herb stated that he thinks this variance would have been granted under the conditions, even without the addition having been built.

All were in favor. The motion passed.

b.) Variance to Sections 39-804-4 and 39-401-1 at 766 Lakeview Lane to reconstruct a detached accessory garage in the front yard and reduce the required front setback from 65 feet to 60 feet.

Herb provided some background information about the variance request. He stated that the variance was to reconstruct a detached structure that was destroyed by the storm. He stated that the reconstruction is essentially irrelevant, that they need to meet the requirements. The variance is for 5 feet from the 65 –foot setback required from the edge of the road along the front of the property. Herb stated that he looked at this to see if there was any way to meet the setbacks and attach the structure to the house, but stated that the topography of the land did not lend itself to that. He added that the front height will be a bit taller than before to allow some attic space for overhead storage. The front height will be 23 feet and the maximum permitted height is 35 feet. Herb stated that typically the planning and zoning commission considers whether the height has been reduced to mitigate the impact of the structure being located closer than the required front setback. In this case, the height is quite a bit lower than what is permitted.

Joe Voyles, agent for the applicant, introduced the project and stated that the intent is eventually to connect the garage to the house, but they are not ready to do that yet. He stated that if the structure is pulled back to meet the front setback requirement, the building would encroach into the side setback at a greater proportion and would have an impact on the neighboring property.  He indicated that the plan is to keep the structure on the original footprint and eventually tie the two structures together with a European cottage theme.

There was further discussion.

Lombardi asked for clarification about why this couldn’t be processed as an administrative variance. Herb stated that an administrative variance couldn’t be granted because this variance includes a request to permit an accessory structure in the front yard, which can’t be varied administratively. Herb further stated that he was going to be proposing later in this meeting that the code be amended to allow detached enclosed accessory garages to be located in the front yard when certain conditions are met because the planning and zoning commission has historically been approving them by variance.  The way that the code currently reads would not allow, even by variance, an accessory structure to be located in the front yard, but that has been the practice, and Herb wants to amend the ordinance to be consistent with the way that it has been applied.

There was further discussion.

Lombardi stated that the way the code is written now requires that we deny this, but Herb stated that the code hasn’t been applied that way in the past.

Lombardi asked if the text amendment to the zoning ordinance would require council review. Herb stated yes, and that it would be three or four months before it was approved and enacted.

Belt asked if the new structure would be taller than the original. Voyles responded that it would be about 8 feet taller than it used to be.

Belt motioned to approve the variance as requested. Huntington seconded the motion.

Lombardi asked about the application of the code in the past, which was not in accordance with the code but with common practice. He stated that he would have preferred that the Planning and Zoning Commission had just applied the code based on the way that it is written in order to have consistency. Herb stated that that is the goal and that he is trying to work on the code to get the application and the wording of the code to be consistent.

Huntington asked about what the past practice has been. Herb stated that if the accessory structure is enclosed, used for parking cars, and meets or only slightly varies from required setbacks, the planning and zoning commission has been granting approximately 90% of variances to allow them to be located in the front yard. 

Herb stated that variances should be to dimensional requirements, but that has not how the code has been applied in the past, which is why he is recommending changes to the code later in the meeting.

Lombardi asked Herb if based on past history his recommendation would be approval. Herb stated that he would recommend approval. 

Huntington asked Herb if he would have granted the setback variance administratively if the garage had been attached. Herb responded yes, if the garage had been attached, this would probably have been granted as an administrative variance.

All were in favor. The motion passed.

The applicant, Mrs. Pridemore, asked if they were required to attach the garage to the house. It was stated that that was not required. It was further clarified that if the garage is at some future point attached to the house there would be no requirement for another variance to be issued regarding the front setback of the garage.

Voyles asked for clarification about boathouses and the area limitation. Is the boat slip part of the maximum permitted square footage? Herb responded that it was. Voyles asked if the decking is attached to more decking on the shore, does the decking on the shore count toward the total square footage. Herb responded yes.

There was further discussion about the requirement that docks and boathouses not project more than 25 feet into the lake.

Voyles went on to ask about a hot tub insert at a retaining wall on 186 Lakeshore Drive. Near the water’s edge, the owner is planning to put a portable hot tub within about 10 feet of the property line. Voyles asked if it would be considered a structure. Herb responded that he didn’t think that this would be considered a separate structure. Herb stated that a structure has typically been defined as something with a roof over it.

c.) Consideration of changes to the zoning ordinance, including, but not limited to, changes to Section 39-401 (78-89 of municode), Accessory Structures.

Herb reviewed the existing language of the code and stated that, with the municode changes recently approved, the commission revised the language to require a 12.5 foot setback from side lot lines and 40 feet from the rear lot line.  Herb stated that he was now proposing additional changes. He read the proposed new language into the record to insert into the existing code following “…and setback 40 feet from any point along the rear lot line.”

The proposed amendment is as follows: “Due to the topography and the shape of the lots adjoining Lake Berkeley, an enclosed accessory garage, which has as its primary purpose to park cars inside its structure, may be permitted in the front or side yard of those lots that adjoin Lake Berkeley if it is determined by the planning and zoning commission that the shape and topography of the lot creates a hardship to locate the accessory garage in the rear yard.”

Herb stated that this kind of construction would be treated the way that the planning and zoning commission handles the addition of a second kitchen into dwellings.

Huntington asked about the lots not adjoining Lake Berkeley and whether this exception should be provided for other lots, especially if the applicant will have to get approval from the Planning and Zoning Commission. Huntington stated that if other residents who do not live on the lake have strange shape or topography creating a hardship, then perhaps they should be given the same consideration.

Herb went on to explain that he wanted to limit the scope and that the zoning ordinance already provides exceptions for those lots adjoining Lake Berkeley regarding minimum lot area and minimum lot depth.

There was further discussion.

Lombardi asked if we could broaden the language to say that the structure must be used to park motor vehicles. It was agreed that this change would be made. It was discussed that there is no way to prevent homeowner’s from converting a garage into a workshop once they’ve received approval to construct it in the front yard.

Herb stated that he wanted to provide for this exception because this is how the planning and zoning commission has been applying the code in the past.

Huntington stated that he would change the wording around somewhat because it seems like what has been presented is somewhat redundant when topography and shape are mentioned in two places. He suggested changing the wording to the following: “If it is determined by the planning and zoning commission that the shape and topography of the lot creates a hardship to locate an enclosed, accessory garage in the rear yard, an enclosed, accessory garage may be permitted in the side or front yard. This enclosed, accessory garage must have as its primary purpose to park motor vehicles within its structure and must meet the following setbacks…”  There was further discussion about rewording the proposed amendment.

Lombardi asked if minimum square footage or minimum dimensions should be specified to determine that the garage is large enough to accommodate the parking of motor vehicles.

There was further discussion.

Herb and Lombardi agreed that the words need to match what the practices are and they need to be enforceable and applicable.

There was further discussion about allowing accessory structures in the front yard and why it may be best to limit the exception to lots adjoining Lake Berkeley.

Lombardi stated that at first it seemed too restrictive to limit the exception to lots adjoining the lake, but he sees some merit to doing it this way.

There was further discussion about making this change, which represents a loosening of the code, but provides the language to be consistent with the common practice in the city.

Huntington stated that he thinks this provides special treatment for those who live on the lake, and he thinks there would be others who didn’t live on the lake that may have circumstances that would deserve consideration. He stated that he hesitates to grant something special to just those who live on the lake.

Lombardi asked if the six requirements for a variance would still apply. Herb stated that this change would create a special exception that would no longer require a variance, but applicants would still need to obtain approval from the planning and zoning commission. Threadgill suggested that language be added to clarify the process by which an applicant would go about obtaining approval from the planning and zoning commission.

Herb suggested adding a bullet to Section 39-1201 under the other circumstances, such as when applicants are trying to install a second kitchen, in which building permits require review by the planning and zoning commission.

Threadgill was asked to read the proposed amendment as she understood it. She read the following: “If it is determined by the planning and zoning commission that the topography and shape of the lot creates a hardship to locate an accessory garage in the rear yard, an enclosed, accessory garage may be permitted in the front or side yard (it was determined to eliminate the restriction that this exception would apply only to lots adjoining Lake Berkeley). This enclosed, accessory garage must be set back not less than 12.5 feet from any point along the side lot lines and not less than 65 feet from any point along the edge of the front road and shall have as its primary purpose to park motor vehicles within its structure.” 

It was stated that the garage being enclosed is critical because carports have not been given variances in the past.

Threadgill stated that she would add a bullet point in section 39-1201 that she will circulate for review.

Herb stated that we could not just continue to do what we’ve done in the past in dealing with detached garages in the front yard. If the code remains as is, then the practice would need to be modified to be consistent with what the code states, which would not allow accessory garages in the front yard.

It was determined that Threadgill would circulate these changes with the minutes to provide Hammond, who was absent at the meeting, the opportunity to review what was discussed and suggested. In addition commissioners expressed a desire to have Sipe’s review and comment on the proposed changes.  It was decided that the planning and zoning commission could consider these changes at their next meeting.


V. ADJOURNMENT

Lombardi motioned to adjourn the meeting at 8:40 P.M.  Huntington seconded the motion. All were in favor. The motion passed.







(Respectfully submitted by Leigh Threadgill, approved by P&Z August 14, 2007)