BOONE COUNTY BOARD OF ADJUSTMENT
BOONE COUNTY GOVERNMENT CENTER
801 E. WALNUT ST., COLUMBIA, MO.
Thursday, May 28, 1998
Chairperson Trabue, called the meeting to order at 7:00 p.m. in the Boone County Chambers having a quorum present.
Present: Tom Trabue, Chairperson
Linda Rootes, Vice Chairperson
Also present: Stan Shawver, Director Noel Boyt, Secretary
Thad Yonke, Staff Bill Florea, Staff
Member Kirkpatrick made and Member Keil seconded a motion to approve the minutes of April 23, 1998. meeting with no corrections.
Motion passed by acclimation.
Chairperson Trabue explained the function of the Board of Adjustment and read the following statement:
"Ladies and gentlemen, the Boone County Board of Adjustment is now in session. This Board is appointed by the Boone County Commission to consider specific application of the zoning and subdivision regulations. The Board is empowered to enter rulings that may give relief to a property owner from the specific application of the zoning and subdivision regulations. Generally, variances can only be granted in situations where by reason of shape or topography or other extraordinary or exceptional situation or condition of a specific ordinance would result in peculiar and exceptional difficulties to or exceptional and demonstrable undue hardship upon the owner of the property as an unreasonable deprivation of use as relating to the property. A variance from the strict application of this ordinance can be granted provided the relief requested will not substantially impair the intent, purpose and integrity of the zoning regulations.
Notice of this meeting has been published in accordance with our by-laws for the proper number of days. All decisions of the Board are based on the zoning or subdivision regulations for Boone County, Missouri, and are hereby made a part of the record of this meeting."
Request by Thomas W. Smith for a variance from the subdivision
regulation restricting subdivision lots from being more than three times
longer than they are wide, on property located at 3552 Winn Road.
Director Shawver gave staff report stating that the property is located on Winn Road, approximately 3 1/2 miles northwest of Hallsville. The property is zoned A-2 (Agriculture) as well as all the surrounding property is zoned A-2. The property in question has been previously platted as Clover Leaf Estates subdivision (a two lot subdivision) and approved by the Planning and Zoning Commission in February, 1997. There has been no development on the plat. The owner would like to replat the two lots into three lots. In doing so, he is creating a lot that would be more than three times longer than the width of the lot.
Requested variance would be relief from Appendix B 1.8.2 of the Subdivision Regulations which requires that lots not be more than three times longer than the width. The Subdivision Regulations are considered to be part of the record of this hearing.
A letter in opposition was received and given to the board.
No variance from any requirement contained within Appendix A or B of the Subdivision Regulations shall be granted unless the Board finds
(a) the applicant will not incur unreasonable and unnecessary hardship of a
variance is not granted and the variance is not sought primarily to
avoid financial expense in complying with the requirements of
(b) grant of a variance will not endanger the health, safety or welfare of the public,
(c) grant of a variance will not hinder, thwart or circumvent the general
intent or any specific purpose of these regulations.
The staff does not feel that granting this variance will be of any threat to the health, safety or welfare of the general public. The staff does have concerns about the other two points.
The requests fails to satisfy part a of the regulatory criteria cited in Section 1.9.2 of the Subdivision Regulations. Staff does not view the location of the existing ponds, the mobile home or lagoon as design factors that would cause an unreasonable or unnecessary hardship. Staff is of the opinion that this property can be split into three lots within the physical constraints of the land without a variance being granted.
Director Shawver said in January, 1997 the very first submission of the plat showed a possible split into three parcels. At that point in time the property owner did not own a total of 15 acres and was unable to put it into three lots. However, the original submission shows that there were other configurations available that would meet the 3 to 1 ratio.
Concerning part c of Section 1.9.2, staff concedes that is a rural area that will probably not be impacted by creating a lot more than three times as long as it is wide. However, it is premature to say that such a design will not inhibit the eventual development of other properties in the area.
Staff recommends that this variance be denied.
Dan Brush of Brush and Associates, 506 Nichols, Columbia came forward to address the Board representing Mr. Smith the owner. He said when they laid out the three (3) lots, they looked at the design criteria to have the large pond on one lot, with the building area north of the lot and the two smaller ponds on a lot, leaving the woods and existing mobile home as it is for the third lot. They were trying to work with mother nature and with what was already on the property.
Open to the public. No one spoke in favor or opposition to the request.
Mr. Brush returned and gave a colored sketch of the area with the ponds for the board to review. Chairman Trabue said that would be valuable to him since he had some difficulty following the plat.
Closed to public hearing.
Chairman Trabue made reference to the letter that Mr. and Mrs. Grambing sent. He asked staff if the property could become a mobile home park ? Director Shawver said the property is zoned A-2, a mobile home park requires a residential classification of zoning and a conditional use permit by the Planning and Zoning Commission. The lots would be 5 acres and each lot could have 1 manufactured home, provided it is 1976 or newer, meets setback requirements and onsite wastewater disposal requirements.
Chairman Trabue said he had looked at the property and was concerned about the access to the property. He said the original plat that was presented in 1997 did indicate that the property could be divided into a third lot and meet the Subdivision Regulations and would not need to come to the Board.
Member Rootes ask if Mr. Brush could address the 1997 submission. Mr. Brush said he did not remember what was submitted. At this time, they were trying to keep the larger pond on one tract and splitting the two smaller ponds. Chairman Trabue said he saw what Mr. Brush was trying to accomplish by putting in lot 2 on the back portion and having a pond on each lot.
Member Keil asked when the property was purchased. Mr. Brush was not sure when it was purchased. Chairman Trabue asked when the two lot plat was approved? Director Shawver stated the two lot plat was approved by the Planning and Zoning Commission in February, 1997 and recorded in March, 1997. Director Shawver said the point of him providing the original copy was to show there are other options possible that would not exceed the 3 to 1 ratio.
Member Rootes asked staff if back in 1997 when it was platted into two lots, was the 3 to 1 rule in effect then? Director Shawver stated yes. Member Rootes said then their were two non conforming lots because the existing plat does not comply with the 3 to 1 rule. Director Shawver agreed, he added that in reviewing subdivisions on a regular basis we find that periodically we may miss something. When we notice the error, we try not to repeat those mistakes.
Member Keil said she did not see any hardship involved.
Member Keil made and Member Kirkpatrick seconded a motion to DENY the request by Thomas W. Smith for a variance from the subdivision regulation restricting subdivision lots from being more than three times longer than they are wide, on property located at 3552 Winn Road.
Norma Keil yes Keith Kirkpatrick yes
Jerry Kaufman yes Linda Rootes yes
Tom Trabue yes
Motion to DENY was unanimous. 5 yes
Request by John R. and Jean Payne for a variance allowing the creation
of a 2.23 acre lot in an A-2 zone, located north of the intersection of
Oak Grove School Road and Voorheis Road.
Director Shawver gave staff report stating that the property is located approximately five (5) miles northeast of Harrisburg at the intersection of Voorheis Road and Oak Grove School Road. The property is zoned A-2 (Agriculture) as is all the surrounding property. The property is currently vacant. This property is part of an 11.73 acre tract of ground, part of which is separated by Voorheis Road. The applicant want to subdivide the entire property. Dedication of required right-of-way along Oak Grove School Road and Voorheis Road will result in the lot north of Voorheis Road having only 2.235 acres. The minimum lot size is 2.5 acres in the A-2 zoning district. The original zoning for this site is A-2 with no previous changes in zoning.
Section 11.A. of the Boone County Zoning Regulations requires a minimum of 2.5 aces for a lot in the A-2 zoning district. This request is for a variance on the minimum lot size. Staff notified seven (7) property owners concerning this request.
Director Shawver stated this variance was different from the previous request, which was for a variance from the subdivision regulations. Board of Adjustment handles zoning variances or subdivision variances. Rarely has BOA had both in the same month. Subdivision Regulation requires staff to make a recommendation as the previous request. Zoning Regulations do not provide for a staff recommendation, so none is made. Therefor, decisions should be based on the testimony and evidence presented during the hearing and on the Zoning Regulations, which are considered to be part of the record.
John Payne, owner, 10951 I-70 Drive NE, Columbia and Ron Lueck of Marshall Engineering , 300 St. James St., Columbia addressed the board.
Mr. Lueck said they would like to have the ability to plat the area north of Voorheis Road as a separate lot. A survey was made in 1994 showing the entire tract as one piece of land. If they had, it would have made it a lot simpler. The configuration of the lot is from the roads as traveled. The section line, to the west, and the road east of and south of this site have basically created this lot and the hardship they are asking the variance on. There is 2.9 acres in that tract. However, the subdivision regulations require dedication of 33 feet of right-of-way from the center line of the road. This would result in a tract of 2.23 acres.
Open to the public. No one spoke in favor to the request.
David Ridge, said he and his wife owned property to the west of the request. He submitted for the record two pages of excerpts from the Land Use Regulations (Zoning Ordinance).
He did read into the record the following:
Page 1, Section 1.4: "The word "shall" is always mandatory and not merely directory."
Page 41, Section 3.1: "Any subdivision containing any lot less than two and one-half acres
in size shall have and engineered centralized sewage collection and/or
Page 45, Section 6: "There should be an erosion control plan in order to control soil,
minimize water pollution, reduce the amount of sediment deposited
on adjacent properties--the subdivider shall be required to submit
an Erosion Control Plan for all plats other than administrative surveys."
Page 46: Section 7.1: Describes the easement lines.
Mr. Ridge continued to read from the copy submitted for the record (see record in file).
In describing the property all the lots located along Oak Grove School Road drain directly on to his property to the west. Any construction or development would cause serious erosion problems to the lots and to their property. This would be especially true to the land located north of Voorheis Road. This land empties onto his property and drains into their lake. Eating fish from the pond is part of his regular diet and any pollution would end up in the lake and adversely effect their health and welfare.
The land has three gullies that converge into one gully just beyond the property line to the west. After rainstorms these gullies completely empty their contents onto his property. The land has overhead electric utility lines which in effect reduces the net usable lot size by 5400 sq. ft.
Mr. Ridge calculated the Boone County rating system for this property. Table B stated it is desired to have a point rating of at least 50 points. He said his calculation gave it a rating of negative two (-2).
Mr. Ridge stated that he was opposed to the variance for the following reasons:
There is a house that is located on the southern portion of the property. The lagoon is within 75í of their property line. The Health Department has come out to measure and still approved it being less than the required 75 feet. The house was constructed in 1994 and they are still getting erosion onto their property. All the lots (11.12 acres) are very shallow and ravines effect flooding onto his property. It did not seem feasible to make the lot to the north a viable lot.
Gary Maiden, 17800 N Maiden Road, came forward. He agreed with what Mr. Ridge stated. Mr. Maiden said Mr. Ridge allows them to fish in his pond so he does have concerns regarding the run off. He said the regulations were made for good reasons and this lot is outside of those guidelines. He had a letter from Jerry Perry, the house directly across the road from the property that he wanted to be made part of the record.
John Payne addressed the concerns of the neighbors. He said that through out Columbia and Boone County there is a trend "Not in my back yard" or "Iíve got mine and I donít want you to have yours."
Mr. Payne said Mr. Ridge and the previous owner had some difficulties getting along. There were problems with property lines. After Mr. Payne purchased the property, Mr. Ridge has had a chance to purchase the property. If it was not for giving the sufficient right-of-way to the county for the road, there would be 2.5 acreage which would be sufficient.
Mr. Lueck said that they were taking steps to remedy the problems of the lagoon. Mr. Payne purchased the house with the existing problems and he is trying to come into compliance.
Mr. Payne said the house did have an occupancy permit from the Health Department but, only with a 74" setback. He has contracted with Phill Hamilton to correct the problems in accordance with David Crooks recommendations. He said they were not aware of the problem when purchased, but that is part of being a buyer. It may cost as much as $2,000 to bring it into compliance. He had a drawing of all three tracts showing it would be possible to place lagoons that meet setback requirements.
Closed to public hearing.
Ron Lueck showed the board members where the house is on the map and the lot in question, the survey had been done four (4) years prior.
Member Kirkpatrick asked about the terrain? Mr. Lueck said it drained to the west. Chairman Trabue asked if the tract in question was primarily wooded. Mr. Payne said yes, heavily wooded.
Mr. Payne added that this was Sturgeon school district, not Harrisburg school district. Conflicting comments came from the audience. Chairman Trabue said for the record it was one of the two schools district.
Chairman Trabue confirmed the zoning was A-2 and if the property was contiguous, it would be possible to split the property into four (4) lots. Director Shawver agreed and said yes.
Chairman Trabue said that after looking at the property the shape of the lot prevented it from having 2.5 acres. He could not say it was the fault of the property owner, the road predates zoning requirements. The regulations do allow subdivision of 2.5 acre lots. If allowing this request would give them one additional lot that they other wise would not have had, he would oppose it. But this particular case it does not give them an advantage. There is no financial gain to be made. In fact the plat they have proposed shows one (1) less lot than is allowed on this size of tract .
Member Kaufman asked without a variance was the lot unusable other than pasture. Director Shawver said it could be platted, but the balance of acreage needed to make it 2.5 acres would be on the other side of Voorheis Road.
Member Kirkpatrick said the only other option would be to rezone to another density, but then it would be even more dense. He added that if it was not for .3 of an acre the neighbors would not have any say what so ever and it would be a buildable lot. Another consideration is that if the county does not get the right-of-way through this process, it will never get right-of-way.
Member Rootes asked if the traffic on the road had changed since Payne bought the property. Mr. Lueck said no. The letter from Mr. Perry sounds like he thought this was an unbuildable piece of land, that is why he insisted it be sold with the rest of the property. Mr. Payne said the property was originally sold in 1994 and he purchased it in April, 1998.
Member Keil said she saw large lots in the area and the neighbors prefer to have lower density.
Member Rootes asked Chairman Trabue when looking at the site, did he feel the terrain was suitable for building or do the neighbors have a real concern. Chairman Trabue believed that an erosion control plan for development of that lot would be appropriate and possible. He said it was a wooded lot and could be built on. The nature of the area is very steep and run off is very quick where the road gravel could end up down there.
Member Rootes asked about possible erosion control if needed? Director Shawver said that there are no controls on individual house construction. Present erosion controls are designed for building of roads, sewer lines, so forth. Subdivision Regulations do not address individual sites.
Mr. Ridge spoke up from audience and stated that any time a plat is recorded at the Recorder of Deeds, 33 ft. is automatically taken into consideration. Director Shawver said before any administrative survey is approved, a road construction easement is given. Member Kirkpatrick said his point was that if that particular lot was not platted, there is no requirement to the owner to give right-of-way, ever.
Member Keil said that is true of a lot of land in Boone County. Member Kirkpatrick agreed, as plats come along, we gain the right-of-way as needed.
Chairman Trabue asked if in the regulations could the 3/10 of the needed acreage come off the south portion of land. Director Shawver said the regulations do not say the land has to be contiguous, generally that is what is seen. They could have a land tie on the south side of the road. It is not desirable because of the problems it causes. It becomes an unusable piece of ground. By default through adverse possession it may end up titled to the person on the south side of the road at some point in time. Member Kirkpatrick asked if the Subdivision Regulations would permit it? Director Shawver said the Regulations do not prohibit it.
Chairman Trabue said in deference to the neighbors in the area, it is a beautiful area, beautiful piece of property, but he personally believed that this request does meet the hardship requirements outlined in the regulations with relation to shape and topography of the lot and physical constraint beyond the control of the owner.
Member Kirkpatrick said he was torn, but this may be the best way to handle it for all concerned. That is assuming only two lots are on the subdivision plat south of the road, and one lot north of the road.
Member Kirkpatrick made and Member Kaufman seconded a motion to approve the request by John R. and Jean Payne for a variance allowing the creation of a 2.23 acre lot in an A-2 zone, located north of the intersection of Oak Grove School Road and Voorheis Road.
Member Rootes said her disappointment was that property owners or home owners could not have some type of legal protection (even civil protection) against adjoining properties, doing what they should, or technically could protect themselves from erosion. She hoped that as more dense development continues, home owners have protection.
Chairman Trabue agreed with Member Rootes.
Keith Kirkpatrick Yes Jerry Kaufman yes
Norma Keil No Tom Trabue yes
Linda Rootes Yes
Motion to approve was granted 4 yes 1 no
Being no further business, meeting was adjourned at 8:05 p.m.
Noel Boyt, Secretary
Minutes approved 25th of June 1998.