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MINUTES OF THE WELD COUNTY BOARD OF ADJUSTMENT MEETING
Thursday, April 10, 2003
A regular meeting of the Weld County Board of Adjustment was held on Thursday,April 10, 2003, in Room
210 of the Planning/Public Health Building, 1555 N. 17th Avenue, Greeley, Colorado. ^'
The meeting was called to order by Vice Chair Mary O'Neal. Tri
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Roll Call: ,--� "`1
Joseph Bodine-absent Larry Wilson
Don Beierbach Tony Evans
Syl Manlov-absent William Hansen
John Donley Michael Willits-absent
Mary O'Neal Eric Whitwood
Randy Peterson
Also Present: Monica Mika, Kim Ogle, Chris Gathman, Lance Unverzagt, Weld County Department of
Planning; Jeff Reif, Weld County Building Official; Bryon Horgen, Weld County Building Inspector; Bruce
Barker, County Attorney; and Donita May, Secretary.
John Donley motioned to approve and waive reading of the minutes of the last regular meeting of the Weld
County Board of Adjustment held on, September 12, 2002. Eric Whitwood seconded the motion. Motion
carried.
Vice Chair O'Neal asked Mr. Unverzagt to present all four cases at once because of their similarity.
1. CASE NUMBER: BOA-1017
PLANNER: Lance Unverzagt
APPLICANT: Marvi&Joel Pruden
REQUEST: Request for a variance to allow a 0.9 foot overhang on the garage to
encroach into the front setback.
LEGAL DESCRIPTION: Lot 18, Block 4, Idaho Creek Subdivision;Section 10,T2N, R68Wof the
6th P.M.,Weld County,Colorado.
LOCATION: 10696 Butte Drive
2. CASE NUMBER: BOA-1018
PLANNER: Lance Unverzagt
APPLICANT: Gary&Evelyn Sancomb
REQUEST: Request for a variance to allow a one foot overhang on the garage to
encroach into the front setback.
LEGAL DESCRIPTION: Lot 10, Block,3, Idaho Creek Subdivision; Section 10,T2N, R68W of
the 6th P.M.,Weld County,Colorado.
LOCATION: 10669 Butte Drive
3. CASE NUMBER: BOA-1019
PLANNER: Lance Unverzagt
APPLICANT: Justin&Veronica Gleaton
REQUEST: Request for a variance to allow a 0.9 foot overhang on the garage to
encroach into the front setback.
LEGAL DESCRIPTION: Lot 8 , Block 4, Idaho Creek Subdivision; Section 10,T2N, R68W of
the 6th P.M.,Weld County, Colorado.
LOCATION: 10664 Butte Drive
4. CASE NUMBER: BOA-1020
PLANNER: Lance Unverzagt
APPLICANT: Lainie&Travis Yarger
REQUEST: Request for a variance to allow a one foot overhang on the garage to
encroach into the front setback
LEGAL DESCRIPTION: Lot 23, Block 23, Idaho Creek Subdivision; Section 10,T2N, R68W;
Section 10,T2N, R68W of the 6th P.M.,Weld County, Colorado.
2003-1011
LOCATION: 10695Butte Drive
Lance Unverzagt,Weld County Department of Planning Services, presented BOA cases 1017, 1018, 1019,
and 1020. The applicant is KB Home, on behalf of the individual homeowners. BOA-1017 and BOA-1019
are asking for a variance of one foot for the garage overhang into the setback. BOA- 1018 and BOA-1020
are asking for a nine inch variance. The sites are South of Highway 119 and West of Interstate 25.
The Weld County Department of Planning Services has received referral responses from the Health
Department, Public Works,and the Mountain View Fire District, all of which indicated there was no conflict
of interest with granting these variances.
The Weld County Department of Planning Services has determined that the requested variances are not
in compliance with the requirements of Section 23-6-40.C of the Weld County Code for the following
reasons:
1. Section 23-6-40.C.1 - States----Special conditions and circumstances exist which are
peculiar to the lot, structure or building involved and which are not applicable to other lots,
structures or buildings in the same zoning district.
These cases do not meet the definition of being peculiar or unique among the lots and
structures within the same zoning district. The cases being brought to the Board of
Adjustment have an identical problem with the garage overhang. The garage has an
encroachment into the front setback requirements. This problem is a common occurrence
with the Nantucket homes, model number (230.1524) that were built in the Idaho Creek
Subdivision. The Nantucket model is oversized for the small 2800 square foot average
lot size and only fit on the larger corner lots. Even after being warned by the department
of planning services that the Nantucket model would not fit on any but corner lots, the
applicant continued to place the model on interior lots. The zoning district is PUD
Residential (R-1)zoning and the applicants had the opportunity provided by Section 27-2-
40 of the Weld County Code to set their desired performance standards in the PUD final
plan. The applicants were unable to meet their own performance standards and thus
created their own hardship.
2. Section 23-6-40.C.2 states that Literal interpretation of the provisions of this Chapter would
deprive the appellant of rights commonly enjoyed by other properties in the same zoning
district under the terms of this Chapter.
The structure can be made to meet setbacks with minor modifications, as the foundation
meets required setbacks and would not have to be altered. The alterations to make the
garage and eaves projections meet setbacks are cosmetic,not structural and would not be
an undue hardship to the homeowner.
3. Section 23-6-40.C.3—The special conditions and circumstances do not result solely from
the actions of the appellant.
• In these cases involving the Nantucket model house in the Idaho Creek
Subdivision,the special circumstances with the garage overhangs are the fault
of the applicant. The applicants state in their Board of Adjustment application
that they"assume full responsibility for the request for variance even occurring"
• The final plat for Idaho Creek S-554 was approved by the County
Commissioners on March 7, 2001 for the creation of 351 residential lots.
• The applicant believed the setbacks had to be measured from the foundation,
but the Weld County Code definition of SETBACK requires measurements to
be taken from the farthest projection of the building or structure. When
measured correctly, many of the structures were not able to meet setback
standards on the small lots.
• The applicants then submitted an amended final plat which was approved by
the County Commissioners on April 3,2002 by the resolution shown in Exhibit
C. The amended plat resolution adjusted the performance standards as shown
here, so that the structures would fit on the lots without violating setbacks.
• KB Homes hired a consultant to ensure that the structures would fit on the lots.
The consultant produced a matrix that did in fact show the homes to fit on the
lots and meet all setback requirements. This matrix however, turned out to
have an error which resulted in the garage overhang encroachment in
question.
• The lot fit matrix measured the setbacks without consideration to the overhang.
Because the building envelope had so little margin of error to meet setbacks,
the lots were required to have an improvement location certificate and were
staked.
• The Department of Building Inspection field inspectors generally do not re-
measure and would assume the stakes were correct as the calculations were
signed off on by an engineer. The field inspector saw the overhangs and did
some research. He then concluded that the measurements were in error,
which resulted in the applicants needing to apply for the variance.
• The Utility Board unanimously voted for approval as the variance request did
not directly affect the utility easements but expressed concerns about whether
this would set an undesirable precedence.
Based upon the submitted application materials and other relevant information regarding this request,the
Weld County Department of Planning Services' recommendation is for denial.
Randy Peterson asked how corrections to the four structures would be made? Mr. Unverzagt deferred to
Jeff Reif, Weld County Building Official, who stated that the portion of the buildings encroaching in the
setbacks are strictly cosmetic and do not have any bearing on the structural member. Those portions could
be cut or trimmed off and the fascia reapplied. Mr. Peterson inquired about soffit requirements. Mr. Reif
stated there were none.
Eric Whitwood asked Mr. Reif what the approximate estimated cost would be to make the corrections to the
four structures? Mr. Reif said he did not know.
Matt Janke, KB Home Project Manager, stated the approximate cost would be$4,000.00 per structure to
make the overhang adjustments.
John Donley asked Mr. Janke for clarification as to whether that is $4,000.00 per unit or$4,000.00 gross
on the number of units to be adjusted? Mr. Donley then asked Mr. Unverzagt to review the sequence
whereby the applicant was informed that they were not in compliance. How many homes have been
completed that are not in compliance of the 351 homes in the subdivision?
Mr. Janke said there are four homes, presently occupied,for which they are requesting a variance. There
is one presently at the foundation stage and four others presently on the market,for which they have made
the overhang adjustments.
Tony Evans inquired whether this model was still available for sale and if it is, has it been adjusted for future
lots? Mr. Janke replied it is still available for sale, but that KB Home has removed the original engineer of
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record on this project, brought in a new engineer of record, and have completed a new lot fit matrix that
shows specifically which lots this home will fit on. They are certain that there will be no further
encroachments of any kind. Mr. Evans asked if KB Home has checked for all models presently available.
Mr. Janke replied that they have.
Mr. Donley asked Mr. Janke if the total loss KB Home is facing is roughly$16,000.00 for four homes? Mr.
Janke affirmed this and added that their primary concern is not the money,but rather the inconvenience this
will cause to the four homeowners already occupying the homes with the overhang problem. Mr. Donley
asked if KB Home required a performance bond and indemnity insurance of the previous engineer when
he was hired? Mr. Janke said that unfortunately they did not, but they could back charge the engineering
firm for any cost incurred and that their corporate legal staff is contemplating that option.
Mr. Peterson asked if their setbacks generally include a margin for error? Mr. Janke said that he was not
the original project manager for this development, but that presently all projects do allow for a buffer of
generally one foot on either side, and that they presently also have a series of checks throughout the
process to insure this does not happen again.
Ms. O'Neal asked when they sold the first home,if there was not a survey done or an improvement location
certificate that would have uncovered this error sooner? Mr.Janke said surveys and improvement locations
certificates were done,but this problem did not become apparent until the building inspector discovered the
problem in December, 2002.
Mr.Whitwood asked for clarification on the sequence of events. Mr.Janke replied that the model home was
built before the four homes presently in question and that they did do the cosmetic adjustment to the model
home, and as soon as they identified there was an issue with this model, they corrected all of the homes.
Mr. Janke said KB Home also made the cosmetic corrections to all other unoccupied homes that had the
overhang problem.
Mr. Donley asked the applicant and staff to reaffirm the sequence of notification as to the application and
building processes when this problem was first discovered on these four homes and the other homes. Mr.
Janke replied the four homes being addressed today were occupied. Of the other homes identified with the
same problem,one was a model home,the others were in various states of construction and that they have
made the adjustments, therefore eliminating any inconvenience to the potential home buyer.
Mr. Donley spoke to the factual sequence provided by staff which identified that the applicants submitted
an amended final plat,which was approved by the county. The amended final plat had within it the existing
regulations with regard to setback, but the KB Home consultant was not thorough enough and allowed KB
Home to build these homes in direct violation of the code. Mr. Janke said the amendment to the plat was
done in April of 2002,and was done because of a separate issue that occurred before he assumed the role
of project manager. Mr.Janke said the engineer that allowed both problems to happen,though KB Home
assumes full responsibility,was the same engineer of record. Once he was identified as the problem in both
instances he was let go. Mr.Donley then asked if this model was one of the higher end models of those that
KB Home offers? Mr. Janke replied that yes it was one of the higher end models in the project. Mr. Donley
then asked if it was safe to assume that their profit margins are greater on this unit than the other units? Mr.
Janke said not necessarily, but he was not absolutely sure what they are, there are other things that factor
in. Mr. Donley asked how far built out KB Home is of the 350 lots? Mr. Janke said about 80 homes are
complete out of 351.
The Vice Chair asked if there was anyone in the audience who wished to speak for or against this application.
There was no one.
Mr. Janke then asked to introduce Carl Knapp, president of CVL Consultants of Englewood, hired by KB
Home to insure there are no further issues. Mr. Knapp said they have worked on many similar projects
where they have developed a matrix for what homes will fit on what lots. He said he felt that quite frankly,
KB Home is probably the most stringent client they have worked with out of their list of clients. KB Home
has asked them to prepare very intricate exhibits to help their sales staff and construction staff be aware of
which homes will fit on which lots. He stated that he feels KB Homes makes every effort to insure their
homes will fit on the lots. In addition to the preventive measures KB Home has instituted to prevent this
problem from happening in the future,CVL Consultants has prepared a booklet for the KB Home sales staff
to use in their day to day work. In this booklet there are specific pages showing which house will work on
which specific lots. This has created a new level of detail to keep this issue from occurring again.
Mr. Janke thanked the board for their consideration and repeated that KB Home is not looking to set a
precedent. They accept full responsibility for this problem, and based on the information they have
presented today,they hope it is abundantly clear to the board that KB Home will not allow this to happen in
future.
At this time, the public portion of the hearing was closed.
Mr. Evans said he would like to acknowledge that KB Home has admitted their error in these four occupied
houses, that they have gone out of their way to correct the error once it was found in existing unoccupied
houses, and that he feels comfortable agreeing with the applicant's request for variances, but he also
expressed concern that the people most affected may not have been considered adequately.
Mr. Wilson said that nothing about the problem was addressed by KB Home in their application.
Mr. Peterson spoke to the hardship on the homeowner and said he was disturbed by the fact that KB Home
planned to provide the absolute minimum setback allowed by law and because of this, when an error
occurred, he was inclined to be less compassionate,and that in future KB Home needs to provide for more
than the absolute minimum allowed.
Mr. Whitwood made a motion to approve the Weld County Department of Planning Services'
recommendation for denial for the variance for BOA-1017,based upon the submitted application materials
and other relevant information regarding this request. Mr. Peterson seconded the motion.
The Vice Chair asked the secretary to poll the members of the Board of Adjustment for their decision. Eric
Whitwood,yes; Larry Wilson,yes; Don Beierbach,yes; Tony Evans, no;William Hansen,yes;John Donley,
yes,with comment. He applauded KB Home for their integrity during the process that as soon as they realized
there was a problem they did not back away from it. He was also sensitive to Mr. Evans'remarks regarding
the homeowner, but the rules were clear. The KB Home agent was negligent, almost to the point of being
grossly negligent. Mr. Peterson has identified the grey area and KB Home has pushed the envelope. He
thanked them for their integrity but was voting with the majority,and unfortunately,money damages or repair
costs are about the only remedy in a situation like this; Mary O'Neal, yes, ;Randy Peterson, yes. Motion
passed 6-1. Mr. Hansen's vote could not be counted as he arrived after the proceedings had begun.
Mr. Whitwood made a motion to approve the Weld County Department of Planning Services'
recommendation for denial for the variance for BOA-1018, based upon the submitted application materials
and other relevant information regarding this request. Mr. Peterson seconded the motion.
The Vice Chair asked the secretary to poll the members of the Board of Adjustment for their decision. Eric
Whitwood,yes;Larry Wilson,yes;Don Beierbach,yes;Tony Evans,no;William Hansen,yes;John Donley,
yes;Mary O'Neal,yes, ;Randy Peterson,yes. Motion passed 6-1. Mr. Hansen's vote could not be counted
as he arrived after the proceedings had begun.
Mr. Whitwood made a motion to approve the Weld County Department of Planning Services'
recommendation for denial for the variance for BOA-1019,based upon the submitted application materials
and other relevant information regarding this request. Mr. Peterson seconded the motion.
The Vice Chair asked the secretary to poll the members of the Board of Adjustment for their decision. Eric
Whitwood,yes;Larry Wilson,yes;Don Beierbach,yes;Tony Evans,no;William Hansen,yes;John Donley,
yes; Mary O'Neal,yes, ;Randy Peterson,yes. Motion passed 6-1. Mr. Hansen's vote could not be counted
as he arrived after the proceedings had begun.
Mr. Whitwood made a motion to approve the Weld County Department of Planning Services'
recommendation for denial for the variance for BOA-1020,based upon the submitted application materials
and other relevant information regarding this request. Mr. Peterson seconded the motion.
The Vice Chair asked the secretary to poll the members of the Board of Adjustment for their decision. Eric
Whitwood,yes;Larry Wilson,yes;Don Beierbach,yes;Tony Evans,no;William Hansen,yes;John Donley,
yes; Mary O'Neal,yes, ;Randy Peterson,yes. Motion passed 6-1. Mr. Hansen's vote could not be counted
as he arrived after the proceedings had begun.
Vice Chair O'Neal addressed new business, the election of new officers for the 2003 calendar year. John
Donley motioned to elect the existing slate of officers for the calendar year 2003. Joseph Bodine will remain
Chair and Mary O'Neal will remain Vice Chair. Larry Wilson seconded the motion. Motion passed
unanimously.
Meeting adjourned at 4:10 p.m.
Respectfully submitted,
POLL 4:1Don
Secretary
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