BOONE COUNTY BOARD OF ADJUSTMENT

BOONE COUNTY GOVERNMENT CENTER

801 E. WALNUT ST., COLUMBIA, MO.

Thursday, April 27, 2000

 

Chairperson Trabue, called the meeting to order at 7:00 p.m. in the Boone County Chambers having a quorum present.

Chairman Trabue explained the function of the Board of Adjustment. He stated that all decisions are based upon the Boone county Zoning and Subdivision Regulations, which are considered to be part of the record of the proceedings.

Roll call was taken:

Present: Tom Trabue, Chairperson

Linda Rootes, Vice Chairperson

Larry Bossaller

Absent: Vacant seat

Vacant seat

Also present: Stan Shawver, Director

Bill Florea, Staff

Thad Yonke, Staff

Ora Ramsey, Secretary

Member Rootes made and Member Bossaller seconded a motion to approve the minutes of March 23, 2000 meeting with no corrections. Minutes were approved by acclimation.

 

`

REQUEST

  1. Request by B. C. Investments of Columbia, L. L. C. for a variance that would allow houses to be built closer than 50’ from a state owned right-of-way as required in Appendix B, Section 1.8.2 of the subdivision regulations on property located adjacent to State Highway HH.

Bill Florea gave the staff report that Section 1.9.2 of the Subdivision Regulations requires that the Director make a recommendation on requests for variance from the provisions of the regulations.

"The Board may grant a variance only if it finds after public hearing and upon competent and substantial evidence that the applicant meets the criteria for grant of a variance required by these regulations. No variance from any requirement contained within Appendix A or B of these regulations shall be granted unless the Board finds: (a) the applicant will incur unreasonable and unnecessary hardship if a variance is not granted and the variance is not sought primarily to avoid financial expense in complying with the requirements of these regulations (b) grant of a variance will not endanger the health, safety or welfare of the public, and (c ) grant of a variance will not hinder, thwart or circumvent the general intent or any specific purpose of these regulations. All applications for variances shall be filed with the Director and after review thereof the Director shall make a recommendation to the Board to grant or deny the application and state the reasons for his recommendation."

The applicant, B. C. Investments of Columbia L. L. C. is requesting a variance from Section 1.8.2 of Appendix B of the Subdivision Regulations which states, "when lots abut a state road, the building line shall be 50 feet from the right-of-way. Lots abutting a subdivision street shall maintain a front building line as required the zoning regulations."

  1. The applicant will not incur unreasonable or unnecessary hardship if this variance is not granted. The proposed development is still in the design phase, and can be designed to comply with the regulations. Staff is not aware of any claims of unreasonable or unnecessary hardship that will accrue should this variance be denied.
  2. The proposed development includes a number of residential lots that will be adjacent to State Highway HH. State Highway HH carries a significant amount of traffic. Residential properties that may include children should be separated from high volume roads as much as possible.
  3. Granting this variance will thwart and circumvent the general intent of the regulations. The intent of the regulations requiring additional distance between a state right-of-way and lots is to provide adequate room for future road improvements. While it may appear that there is adequate room for improvements, the extent and possible design requirements are unknown at this time. Additionally, increased distance reduces noise, helps decrease the risk of traffic to children and residents.

This request fails to satisfy part a, b or c of the regulatory criteria cited in Section 1.9.2 of the Subdivision Regulations.

Staff recommends that this variance be denied.

Dan Simon, Attorney of 203 Executive Building, Columbia, Rhonda Carlson of 1110 Willow Creek Ln, Columbia, and Jay Gebhardt, Allstate Consultants, 711 W Ash, Columbia.

The Carlsons are asking for this variance because they believe meeting the setback, as required in the Subdivision Regulations, does impose a hardship and that the hardship is unnecessary and unreasonable because the reason for the public requirement has already been satisfied. This hardship is not related and they are not asking for the variance because of the desire to avoid financial expenditures, but rather to ask to be able to make a reasonable use of the property. This variance will not have an effect on the Public health, safety and welfare.

The Carlsons bought the property with the desire to plat it and develop it as a subdivision to be known as Settler’s Ridge. They are now in the subdivision platting process and the zoning process. They have been advised, in order to pursue the platting, they must first appear before the Board and ask for this variance which they are asking for at this meeting.

A highlighted version of Section 1.8.2 that along state right-of-ways or state roads a requirement of 50’ building setback. That particular requirement only applies long state highways or state roads. It does not apply to Old State Rte B, now Brown Station Road. A road probably similar in character, similar in traffic volume, to what is now Rte HH. It only applies along State roads. The purpose for this ordinance is to protect, in the State, or the right or ability of the State to acquire additional public right of way if and when it needs to expand a road. The County has the ability with it’s ordinances to protect it’s own rights of way – by requiring when a developer subdivides property to dedicate additional right-of- way. That same ability to protect does not exist as with the State right-of-way. Mr Simon stated that he thinks the County has imposed the requirement that any building must be located 50 feet from a State right-of-way, does not apply to the County right-of-way. In order to protect the ability of the State to acquire additional right-of-way without interfering with homes. Mr Simon submitted that this is the only purpose of this ordinance. Mr Simon believes and respectfully submits that Staff is in error. He believes that Staff views that somehow this requirement of the ordinance is also related to public safety, health and welfare. They site the need for noise buffering. Obviously appropriate. There may be small children residing in these homes and that somehow the additional 25 feet is going to provide additional protection for them. Mr Simon supported two things that he believes clearly demonstrates that the Staff conclusion of the additional 25 feet is erroneous. First, the primary purpose of the ordinance and what Staff sites as the secondary purpose of the ordinance would be self-defeating. One purpose would be working against the other. If the primary purpose of the ordinance is to protect the ability of the State to acquire additional right-of-way then it would come over an additional 25 feet which would leave a 25 foot setback. By definition, somebody when they prepared the ordinance had determined that along state right-of-way state highways, ultimately a 25-foot setback would be adequate.

Further demonstrating the point is Old Rte B, which is now a County Road. Along that road only a 25-foot setback is required. The traffic counts were similar. It is a road that is similar in character. There is a railroad track running up the side of that road. On this road for some reason a 25-foot setback is deemed to be adequate even though the road is similar to Old Rte B. There are a number of other roads now in Boone County and will be in Boone County in the future that are not going to be State highways that are going to carry, if they do not already carry, the same traffic counts that are now carried along Rte HH and along those roads a 25’ setback is deemed to be appropriate. An illustration was displayed to show that a 25’ setback is not really significant from a public health, safety or welfare purpose. The applicant parked a truck at 25 feet and again at 50 feet from the State right-of-way marker. It is not reasonable to believe that there will be a substantial additional amount of buffering from sound and so forth just by that modest additional distance. It would be the difference between 105 feet and 130 feet which is respectfully insignificant. If the applicant is right about the purpose and intent of the ordinance this is a unique situation because the purpose of the regulation has ready been fulfilled. The State already has 160 feet of right-of-way in one area. The setback, just from the right-of-way, is already 80 feet and at one point 130-feet. The State has already acquired substantial access right-of-way. The applicant spoke with Matt Meyers, District Traffic Engineer, about the situation of the setbacks. Mr Meyers indicated that the right-of-way exceeds anything that the State could foreseeable need at anytime in the foreseeable future for any conceivable foreseeable improvement of State Route HH could possibly be made. They acquired the excessive right-of-way in the past because they wanted to acquire all of the slope. This road could reasonable be classified as an arterial road inside the urban service area.

Mr Simon respectfully submitted to the Commission that this is a somewhat unique circumstance, because the purpose of the law has already been fulfilled. He further presented the following argument. Pursuant to Section 1.9.2 of the County Subdivision Regulations. First, the applicant is required to demonstrate unreasonable and unnecessary hardship. Anytime a property owner is told that they can not put a building within a certain part of their property that imposes a hardship. If it was reasonable to believe that the State might need, in the future, 25 feet of additional right-of-way, a reasonable bases to deny this or a reasonable for this hardship would be apparent. If there was a utility requirement or any other requirement then it would be reasonable. But here the purpose of the law has already been fulfilled. A hardship, a denial of use of property, for which there is no reason, no presently existing reason – is an unreasonable hardship. In this case it is an unreasonable and unnecessary hardship because of the purpose of the law that requires the hardship has already been fulfilled. Secondly, Regulations say a variance can not be expense generated. It isn’t. The applicant will lose the use of part of the property for a reason that they feel is inappropriate, but it will not cause them any additional expense. They also believe that the granting of this variance for the reasons they have already mentioned will not endanger the health, safety or welfare of the public. If it would then why does the same requirement not apply along State Rte B? or other highly traveled County roads? It seems it would be obvious that if an additional 25 feet of setback is required, so that State can acquire that as right-of-way, then it is being determined in advance is that ultimately 25 feet is adequate to protect the public health, safety and welfare anyway. Thirdly, the granting of this variance will not hinder, or circumvent the general nature or the intent of the Subdivision Ordinance, and for reasons that the applicant has discussed will not circumvent the specific purpose of Section 1.8.2. The applicant concluded in asking the Commission to grant the variance.

Jay Gebhardt met with Matt Meyers for the traffic study for the whole development. He stated that Mr Meyers was surprised that the existing half width of 80-feet along the area that they are requesting. He did not understand why the State required that distance. He said it was possibly because of the slopes. Jay Gebhardt stated it is a considerable distance. If they were trying to dedicate a 50-foot half right-of-way for an arterial street they already exceed that by 30-feet in this case. It is common sense that the kids living in the homes along State Road HH deserve the same kind of protection as the kids living on old Rte B. From a common sense point of view it makes sense to grant the variance.

Open to public hearing.

No one spoke in favor of the request.

No one spoke in opposition of the request.

Closed to public hearing.

Jay Gebhardt pointed out the right-of-way widths at the various locations on the display for Chairman Trabue.

Member Rootes asked the applicant to give them an overview or comment on their plans for the proposed development so that the Board would have a better understanding as to why they were requesting the variance. This was done so by Jay Gebhardt

Stan Shawver could not recall any similar requests for variances from the State from the requirement of the Subdivision Regulations. The Regulation has been in effect since 1974 and during the 15 years that Mr Shawver has been with Planning & Building there has not been a request through the Subdivision Regulations. There have been requests on building and setback variances.

Chairman Trabue did agree that the State did acquire a lot of right-of-way and personally thinks that that is sufficient right-of-way for the future. However, he has concerns with the applicant’s claim of meeting unreasonable/ unnecessary hardship requirement. The regulation has been in effect for a number of years. It was in effect when this property was purchased. It is not a new regulation – He does not believe it is an unreasonable or unnecessary hardship in this case. From a strict interpretation of the Regulations he found it hard supporting approval of the variance.

Member Rootes has a strong feeling about tying up additional land unnecessarily. She believes this is one reason that causes the sprawl problems. To build a denser development and provide housing for the same number of people adequately in a smaller area is a good thing for Boone County. If the additional 25 feet in not really needed to be set aside for any health or safety reason or to provide additional right-of-way in the future and not likely to set any precedence she would prefer that they not be required to set aside the additional space.

Member Bossaller stated he saw no justification or reason why the variance should be granted.

Mr Simon readdressed the Board pointing out, what he considered, three key words. Unnecessary, unreasonable and hardship. If you tell someone they can not use their land – would not that be a hardship. He further stated that the Government imposes hardships on us everyday for the public good and society accepts those hardships and then goes on. The question is in this case is – is it unreasonable and is it unnecessary. Each Member has already stated that the 25 feet is not needed. It is not needed and to be set aside and excluded from use for any public purpose. Hence, there is no reasonable basis to tell the property owner, regardless of what they want to do with the property, that they can not make a reasonable use of this property because there is no public purpose in tell them they can not. It is unreasonable, unnecessary, it defies common sense. It is unfair, it is unjust, it is improper and it should not be done.

Mrs Carlson was not aware of the additional setback requirement when she purchased the tract it was very obvious that all of the right-of-way that was ever going to be necessary was purchased off the ground. She stated she would not have spent the money on attorneys and engineers to get here if she did not feel like they had satisfied the necessity of that ordinance.

Member Rootes made and Chairman Trabue seconded a motion to approve a request by B. C. Investments of Columbia, L. L. C. for a variance that would allow houses to be built closer than 50’ from a state owned right-of-way as required in Appendix B, Section 1.8.2 of the subdivision regulations on property located adjacent to State Highway HH.

Linda Rootes Yes

Tom Trabue No

Larry Bossaller No

Motion to approve request failed. 2 No 1 Yes

* * * * * * *

  1. Request by Anthony L. Davis for relief from the requirement to provide a half right-of-way of 50’ adjacent to an arterial street as required in Appendix B, Section 2.2 of the subdivision regulations, on property located at 2100 Gans Road.

Thad Yonke gave staff report that Section 1.9.2 of the Subdivision Regulations requires that the Director make a recommendation on requests for variance from the provisions of the regulations.

"The Board may grant a variance only if it finds after public hearing and upon competent and substantial evidence that the applicant meets the criteria for grant of a variance required by these regulations. No variance from any requirement contained within Appendix A or B of these regulations shall be granted unless the Board finds: (a) the applicant will incur unreasonable and unnecessary hardship if a variance is not granted and the variance is not sought primarily to avoid financial expense in complying with the requirements of these regulations (b) grant of a variance will not endanger the health, safety or welfare of the public, and (c ) grant of a variance will not hinder, thwart or circumvent the general intent or any specific purpose of these regulations. All applications for variances shall be filed with the Director and after review thereof the Director shall make a recommendation to the Board to grant or deny the application and state the reasons for his recommendation."

The applicant, Anthony L Davis, is in the process of subdividing property along Gans Road. Gans Road is classified as an arterial street, requiring a right-of-way of 100 feet. The subdivision regulations require dedication of half the width of right-of-way when a property owner is located on one side of the road (Section 2.2, Appendix B). Mr. Davis is dedicating 50’ half right-of-way along his property. He is asking for a variance that will allow him to dedicate 30 feet of right-of-way for a distance of 200 feet. This is an area that has a pond.

 

  1. The applicant will not incur unreasonable or unnecessary hardship if this variance is not granted. The proposed development is still in the design phase, and can be designed to comply with the regulations. However, platting right-of-way through a pond will create an unusual situation in that ownership and liability of the pond will be shared by Mr. Davis and the County.
  2. Granting this variance will not endanger the health, safety or welfare of the public.
  3. Granting this variance will not thwart or circumvent the general intent of the regulations. The applicant can provide right-of-way along the rest of his property. Gans Road was recently improved by the County, and the Public Works Department believes that they will be able to make future improvements using the proposed 200’ section of 30’ right-of-way.

 

This request fails to satisfy part (a) of the regulatory criteria cited in Section 1.9.2 of the Subdivision Regulations. It does meet parts (b) and (c)

Staff recommends that this variance be granted.

Anthony Davis of 4655 Rockquarry Rd, Columbia represented his request for variance. He purchased the property 16 years ago and operates a Country Day School, which is a supplemental program for children and has been actively in operation throughout the 16 years of ownership. He has been considering dividing the property into one 8-acre and three 5-acre pieces. The general feel of the neighborhood in that community is to have larger tracts. He will continue to operate the business, but would like to take the opportunity to divide it at this time. He has been advised of the Regulations regarding the easement. Jim Brush did the survey. The County was not interested in carrying the liability with it. Mr Davis presented the Board with pictures of the road and pond and his property. In terms of hardship – the pond is a focal point of the operation in terms of swimming and some boating and some use of it. The water (the swimming pool and the pond) are the centerpiece of the operation. By dividing and keeping with the area and having the variance would eliminate what might be a problem at a later time if that easement would be given up and if 10-15 years down the road and if administrations would want to deal with it and the applicant would have to go to a lengthy or legal process to justify the financial value of it. This seemed like the proper approach.

Open to public hearing.

Those in favor of the request.

Thomas Norling, of 1909 E Gans Rd, Columbia – lives angled across from the Davis property. The Norlings have no problems with the requested variance.

Tom Satalowich, of 6030 S Rock Quarry Rd, Columbia – is a neighbor and is also in favor of the requested variance.

Those in opposition of the request.

No one spoke in opposition of the request.

Virginia Floyd-Norling spoke not in opposition or in favor – but expressed concerns. She asked if the 25 feet is taken off one side what impact would it have on the other side of the main interior road?

The indication seemed to be enough road with improvements to do what is needed and still be able to cut out that 20 foot of the corner of the pond. The pond was on the property when Mr Davis obtained the property. It was built was very close to the road at the time. When Mr Davis purchased the property the road had to be improved so that the school buses could get through when it rained and was seldom used. Years passed and needs changed. Mr Davis inherited the circumstances.

Closed to public hearing.

Chairman Trabue asked if there was any formal communication or informal communication from the Public Works Department. Thad Yonke stated that Staff had been in contact with Public Work Department. Staff has nothing in writing, but they did not seem to think that that would be an issue at this point. If the situation changes significantly and the road is upgraded in classification and requires improvement they will look at it at that time to figure out what other additional right-of-ways would be needed. They did point out that regardless they wanted to steer away from the dam and they would not want to be in that. If this property is not being platted and therefore no variance was requested they would probably still to go to the other side.

If the road were to become a Nifong Blvd, for a close example, then Tony will cringe. Then a lot of things will change with regard to what the right-of-way requirements are and they require additional taking. Mr Yonke’s comment regarding the direction that road would take – would probably go to the north to avoid the dam.

If it were not for the pond itself and the liability issues associated with that right-of-way line going directly through that Chairman Trabue state he probably would not be in support of this request either. He is very familiar with this area and it would be a difficult situation. He believes that the Board has Public Works’ support as well. If, however, the road is ever improved another time, that this will become an issue and right-of-way will become an issue. In that particular location the topography is such that the low side will have to be filled or cut the high side or both and it will have impact on both properties north and south. The issue will not go away. It is just being postponed until the future.

Member Bossaller made and Member Rootes seconded a motion to approve a request by Anthony L. Davis for relief from the requirement to provide a half right-of-way of 50’ adjacent to an arterial street as required in Appendix B, Section 2.2 of the subdivision regulations, on property located at 2100 Gans Road.

Larry Bossaller Yes

Linda Rootes Yes

Tom Trabue Yes

Motion to approve request carried. 3 Yes 0 No

* * * * * * *

  1. Request by Richard B. Schulte for a variance from the requirement for a 50’ setback in the A-2 zone as required in Section 10 A. of the zoning regulations, on 14.70 acres located at 12181 N Silver Fork Hill Rd, Columbia.

No one was present to represent the request.

Board discussed tabling the request.

Member Rootes made and Member Bossaller seconded a motion to table a request by Richard B. Schulte for a variance from the requirement for a 50’ setback in the A-2 zone as required in Section 10 A. of the zoning regulations, on 14.70 acres located at 12181 N Silver Fork Hill Rd, Columbia.

Motion to table the request carried by the unanimous sign of "I". None opposed.

 

 

OLD BUSINESS

One application for a new Board Member has been received.

 

 

ADJOURN

Meeting adjourned at 8:10 p.m.

 

 

Respectfully Submitted,

 

 

Ora L Ramsey

Secretary

 

Minutes approved the 25th day of May, 2000.