BOONE COUNTY BOARD OF ADJUSTMENT
BOONE COUNTY GOVERNMENT CENTER
801 E. WALNUT ST., COLUMBIA, MO.
Thursday, October 25, 2001
Chairperson Rootes called the meeting to order at 7:00 p.m. in the Boone County Commission Chambers having a quorum present.
Chairperson Rootes explained the function of the Board of Adjustment. She 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: Linda Rootes, Chairperson
Larry Bossaller, Vice-Chairperson
Absent: Tom Trabue
Also present: Thad Yonke, Staff Bill Florea, Staff
Paula Evans, Secretary
Minutes of September 27, 2001 meeting were approved with a correction on page 6 in which it currently states "Member Bowne stated that had been done for this renewal." It should read, "Member Bowne stated that she wished this had been done for this renewal."
Planner, Thad Yonke gave the staff report stating 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 applicants, James B. & Martina Pounds are the owners of a 9.30-acre parcel of ground that they are proposing to subdivide into 5 lots. The proposed subdivision is located 3&1/2 miles north of Columbia at the immediate northwest corner of the intersection of Wade School Road and Colchester Road. The site is accessed from both Wade School Road and Colchester Road. The existing zoning of the property is R-S (residential-single family) and is the original 1973 zoning. As a single 9.3-acre tract, which is eligible for a single residence, the tract is a legally created lot of record despite the irregular shape of the property.
The applicants at this time desire to divide the property into 5 lots. As a 9.3-acre parent parcel the entire existing tract must be platted into lots. Appendix B, 1.8.2 requires that the lot depth shall comply with Table A. Table A indicates that the maximum lot depth be no greater than 3 times the width of the lot. Lot 5 of the proposed plat does not meet this provision of the subdivision regulations. The requested variance is from the 3 to 1 ratio rule established in Appendix B, 1.8.2 of the Subdivision Regulations, to allow the platting of lot 5 with the inclusion of the approximately 100í by 2000í "stem" portion of the parent parcel as part of lot 5. As an attempt to mitigate the impact of the variance on the regulations the proposed plat has indicated the "stem" portion of proposed lot 5 as a not for development unless re-platted area. This will mean that if the variance is granted and the property platted, no structures will be allowed to be placed in this portion of the lot as long as it remains part of lot 5.
If a variance is not granted it will not be possible to subdivide the property as the shape of the existing parent parcel will not allow a division to meet the subdivision regulations.
The applicants desire is to divide the property in order to more efficiently utilize the existing zoning of the property. This situation alone is not compelling without other extenuating circumstances, as there will always be parcels of ground that due to either specific features of the property or previous surrounding land divisions, make the property unable to be developed to the absolute maximum number of lots allowed in the zoning district. In many of these instances these types of actions limiting the practical number of lots would not be a compelling reason to grant a variance. In this specific instance the irregular shape of the parent tract is a result of the platting of County Downes Subdivision Block 1 in 1978. The area has services to support the higher level of development of the proposed subdivision. The proposed subdivision will be served by a central sewage system, and in fact the "stem" area of lot 5 contains a proposed utility easement that will make provision of central sewer service to the adjoining properties along Colchester Road easier. The existing lots on Colchester Road have on-site wastewater systems. The variance is related to the shape of the property.
The applicant will not incur unnecessary hardship if this variance is not granted, as the property can be utilized for a single family dwelling without any required division. However, the Board may wish to consider the extenuating circumstances in that the shape of the existing property is problematic for the area and granting the variance would solve a long standing problem created by the shape of the property with respect to the surrounding properties. Granting of the variance is not sought primarily to avoid financial expense in complying with the regulations.
Granting this variance will not endanger the health, safety or welfare of the public. If the variance is granted there will actually be a public benefit by the extension of public sewer and the granting of easements that will heighten the possibility of extending central sewer service to an area that is currently not served.
Granting this variance will not thwart or circumvent the general intent of the regulations. The regulations as applied to this particular situation would perpetuate the problem shape of the parent parcel. The regulations also contain language to encourage the provision of proper infrastructure and orderly development. Granting of the variance will allow the property to be divided into a configuration that will be more orderly than the existing situation when the not for development area and dedicated easements are considered.
Staff recommends that this variance be granted with the following conditions:
That it is recognized that the "stem" portion of lot 5 is a not for development area until it is re-platted in conformance with the regulations into the adjoining lot or lots.
Staff notified 85 property owners.
Present: Nathanael Kohl, Surveyor, 1080 Route Y, Harrisburg.
Mr. Kohl stated that staff did a good job of explaining why applicants are asking for this variance and will answer any questions in regard to this request.
Open to public hearing.
No one spoke in favor of the request.
Present: Butch Antal, 1100 Colchester Rd., Columbia.
Linda Antal, 1100 Colchester Rd., Columbia
Mr. Antal stated he wasnít necessarily opposing the request, but had questions as to where the homes would be placed on the property.
Mrs. Antal stated that would be her question as well, where will the homes be placed.
Closed to public hearing.
Member Bossaller stated he understood what was trying to be accomplished, but is thinking back to what Mr. Antal wants to know.
Mr. Kohl stated that basically the location of any house on any of those lots is governed by existing zoning regulations and the platted setback lines that are shown on the plat. The zoning regulations require a twenty-five foot setback; applicants have gone to fifty-foot because that is what all the other subdivisions along Colchester are. Beyond that, Mr. Pounds better knows where the homes will be located on the property.
Present: Jimmy Pounds, P.O. Box 771, Columbia.
Mr. Antal asked applicant if they were planning to put five homes on the property. According to the covenants, there is probably room for two homes. Mr. Antal feels it would bring down their property values.
Mr. Kohl stated he didnít know which covenants Mr. Antal was speaking of.
Mr. Antal stated County Downes.
Mr. Pounds asked Mr. Antal how big his lot was.
Mr. Antal stated it was about 2.5 acres, maybe a little less. Most of the lots out there are that size. Applicantís lots are considerably less. Not counting the long strip, Mr. Antal stated he would think there were only room for two houses.
Chairperson Rootes asked applicants if the property was now over nine acres and if it was part of the area that is covered by those covenants.
Mr. Kohl stated not to his knowledge. The covenants would cover the platted lots of County Downes that are subject to those covenants; this property is a remnant piece that was never platted. That information was covered in the staff report, so it is not subject to those covenants.
Mr. Kohl stated that as he and Mr. Pounds discussed density and what was appropriate for the property, applicants have to realize that they are nestled between two subdivisions and when Mr. Pounds builds the house in there on the property and creates sellable property, he has to look at all the things that are going on. Those are the factors that decide how big of a lot you create. Unfortunately Chalet Subdivision to the north is seventy-five by one hundred feet lots. That is the about the bear minimum you could go. The property is just as close to Chalet Subdivision as it is to the two and a half-acre tracts of County Downes.
Mr. Kohl stated that he thinks what applicants have done here is strike a compromise, probably more on the side of the bigger lots. Because all of applicantís lots are over 125-feet wide, they have more than doubled the minimum frontage they would have to have. All of them have doubled if not tripled the minimum acreage that they would have to have. The lots are considerably bigger than Chalet.
Mr. Antal stated that everything is on Colchester or Wade School, not over on the Chalet. Mr. Antal asked applicants if this property was part of block 1.
Mr. Kohl stated no, block 1 boundary is essentially the south line of this subdivision and the east line of lot 16.
Mr. Antal stated that except that County Downes Street, which isnít shown on the plat, goes in to a cul-de-sac and everything is considerably bigger. Two of the proposed lots would fit in to the space of one County Downes lot. Three of the proposed lots would fit in to one lot in County Downes.
Mr. Kohl stated he didnít think three would quite fit.
Mr. Antal stated that if you are going down from Wade School and look at it, you could see that a house would reasonably fit on three lots and another house on the other two lots.
Mr. Kohl stated that "fit" is a term that is relative and based on opinion, everyone is certainly entitled to their opinion as to what is appropriate spacing. Mr. Pounds is working with what is going on in the neighborhood in terms of striking a compromise that works with the neighbors without creating too dense a property. It is not uncommon that other developers would come in and try to max out a piece of property like that. There are five acres without the stem, if you did one-third acre lots, you could put fifteen lots on just the square portion, you could plat a cul-de-sac and you already have central sewer. Mr. Pounds has not tried to do anything as far as trying to max out what could go on that piece of property per zoning regulations without changing any zoning or anything. Mr. Pounds has backed off of that by a third of the maximum.
Mr. Antal asked the size of the homes to go on the property and the approximate cost, because that is in the County Downes covenants.
Mr. Pounds stated the homes would be typically like they are on lot number 1 on Wade School.
Mr. Antal stated they would be like the smallest houses.
Mr. Pounds stated they would be equal to or greater in square feet than any house along the north side of Colchester.
Mr. Kohl stated that Mr. Pounds has built houses in the neighborhood.
Mr. Pounds stated he built the house on lot 5, lot 1, lot 2, lot 4, and lot 6.
Mr. Kohl stated that the neighbors could drive along the streets around there and see houses that Mr. Pounds has already built, if you look at those houses, you will see what type of houses Mr. Pounds builds.
Present: William & Betty Meyer, 1201 W. Colchester Rd., Columbia.
Mr. Meyer stated there is one transformer in the area where the proposed building will take place. On that one transformer there are two houses being fed, Mr. Meyerís and his neighborís. There is only one transformer there so it shows to Mr. Meyer, that applicants are only allowed two homes to go on that transformer.
Chairperson Rootes stated it was important to remember what the Board is here to decide tonight. The Board is just dealing with variances to things that are not allowed under the ordinances. It is not like the Board is debating the plat, because applicants can legally plat this property. Chairperson Rootes stated she believes it is not really anything the Board is concerned with regarding the size of homes or whether Boone Electric is going to provide additional service there. There is only this one variance before the Board.
Mrs. Antal asked if the variance was for the long strip of land.
Chairperson Rootes stated yes. If it is to be platted in to lots, the entire property has to be done. That one area, the long narrow strip, can never be a legal lot the way it is now, because it is just too long and narrow. In order for applicants to divide any of the property into lots, this issue would have to be addressed. Even if it were being divided only into two lots with only two houses, this issue would still have to be addressed. That is what the Board is here to address tonight.
Chairperson Rootes stated that it sounds like the applicants have not talked to the neighbors about this in advance.
Mrs. Antal stated no; the letter was the first notice.
Chairperson Rootes stated that this is evidence that neighbors are concerned about what happens with development and it definitely facilitates plans moving forward when developers do go ahead and contact the neighbors surrounding the property and have this discussion before you get to a public place.
Mr. Meyer stated they have a new neighbor that did not receive a letter regarding this request, the property was listed under the previous owner.
Chairperson Rootes asked if that could be because the tax records havenít been changed yet.
Mr. Meyer stated he thinks so. When there was a meeting regarding the sewer system, the previous owner was still living in the neighborhood. The new neighbors moved in rather recently.
Chairperson Rootes stated it seems that County Downes has a pretty active subdivision group.
Mr. Meyer stated yes, they like the neighborhood.
Chairperson Rootes stated that the neighborhood probably makes sure that everyone finds out about these situations whether they get a letter or not.
Mr. Meyer stated yes.
Member Bowne stated that part of the staff recommendations dealt with the central sewer system and asked the applicants to explain what type of sewer system applicants have planned and the easement. There was reference that some of the adjoining property owners, if they bought parts of the stem, could then access the sewer. Why does that come in to this.
Mr. Kohl stated that would not be necessary for the neighbors to purchase the property or for them to access that sewer. As it is right now, the properties along Colchester are essentially isolated from any public sewer system. The meeting that was referred to earlier was a meeting at Boone County Regional Sewer District. The Sewer District put together this meeting with all the property owners of County Downes that are un-sewered and unable to connect to a sewer system, in order to tell them how much it would cost the neighbors to develop their own public sewer system. This property does have access to the public sewer system currently. There is a sewer main across Wade School Road.
Member Bowne asked Mr. Kohl to show her that on the plat.
Mr. Kohl stated that there is a sewer treatment plant that serves the denser part of County Downes around the lake to the east. That gravity sewer comes around the lake and down Wade School Road and stops in front of Mr. Pounds property. There is a second gravity system that flows to the south and there is a lift station that serves some homes and that pumps back up to the manhole and carries over to an aerated lagoon on County Downes. What applicants have to do in order to sewer the lots in this subdivision, is extend that public gravity sewer system that is there across the road and up to all of the lots. At the same time, the Boone County Regional Sewer District realizing what applicants are doing, and this is very typical, have requested and required that applicants provide enough easements on this plat so that anyone that is adjacent to this plat would be able to connect to that public sewer system provided the right kind of lines and system were installed. If this subdivision is not platted, then these people continue to remain isolated and unable to connect to that system. If it is platted, these easements are being created that essentially would give the ability for a step system, a septic tank effluent pump system, or a grinder pump system to eliminate lagoons or other onsite systems that are not meeting standards to connect to a public system. That still would have to be coordinated amongst the owners. There would still have to be money spent to actually build those facilities, but the plat does create an easement corridor that would allow that connection to take place if that project wanted to be pursued. That is what the staff report tried to bring out, that there is some public good being done here for the people along Colchester Road by the creation of that easement. The Sewer District only requested ten-foot, but Mr. Kohl went ahead and gave them sixteen because that is usually what you need for a sewer line.
Member Bowne stated going back to what is required and what is still just an optional phase. Member Bowne asked Mr. Kohl if it is required that applicants provide an easement.
Mr. Kohl stated it was kind of a leverage thing, you want your plat to go through, so basically the easements that are shown on the plat are what the Sewer District has requested. Mr. Kohl stated he is working that out with Tom Ratterman to make sure applicants give the Sewer District exactly what they are after.
Member Bowne stated if this is platted, and the five homes are built, would applicants automatically run the sewer line down that long stretch only if Regional Sewer goes through.
Mr. Kohl stated applicants have no motivation to run that sewer themselves. Applicants houses will all be served by the gravity system. Applicants are simply providing an easement corridor so if someone else wanted to spend that money, they could. That still would involve a cost situation for all the property owners out there. It is not like it is free sewer; it is just an access corridor so sewer could be put in there. There is also a capacity issue. County Downes aerated lagoon is very near its capacity, so adding another ten homes on it would require additional aeration. It is not a plant with unlimited capacity. It needs to be upgraded at some point in time depending on how many owners connect.
Member Bowne stated to staff that the County Downes properties have their own type of private wastewater system now and asked if are they lagoons, septic or both.
Mr. Yonke stated it was both.
Member Bowne asked if they drain to the north.
Mr. Yonke stated that the ones on the north side of Colchester drained to the north.
Member Bowne stated once it gets in to the long stretch of property, then it drains to the east.
Mr. Yonke stated it drains to the west
Mr. Kohl stated the ridge is to the west.
Member Bowne asked how a gravity system would work.
Mr. Kohl stated a gravity system wouldnít work, that is why you would need a septic tank effluent pump system. So every house would have to have itís own pump to push that. Or you would have to have a gravity system and one big lift station that would pump it all.
Mrs. Antal asked if the easement wasnít created, would the property owners have to put in pumps to pump their sewers.
Mr. Kohl stated that he believed the options that were explained, Mr. Kohl stated he wasnít at the Regional Sewer District meeting, but they were talking about potentially a separate treatment system somewhere and maybe along down in front of the roads or something. You also have lots on the other side.
Mrs. Antal stated they offered it to their side and is sure it wasnít with that easement.
Mr. Kohl stated it only effects the lots that adjoin. But it allows all the lots to get to that point if those lots participate, then they could create easements so that the other lots could join, depending on the type of system that is put in and how it is done. The lowest place in the subdivision, there are a couple of different creeks that drain in to the vacinity, so if you were doing a gravity collection system, potentially you would have a couple gravity lines and maybe one property owner could make use of this.
Member Bossaller stated that it appears this is pretty hypothetical regarding the sewer system, it is a maybe. Sure it provides a means that is not available now. But it seems that there is a lot going to be happening that hasnít happened.
Mr. Kohl stated those things are other people's issues not the developers.
Member Bossaller stated he was more concerned about the proposed housing situation. It wonít make a contribution to the area; it will hurt the area. Member Bossaller asked staff what the minimum size lot out there would need to be.
Mr. Yonke stated the minimum was 7000 square feet, which would be a 70 by 100-foot lot.
Mr. Pounds stated the minimum size for an onsite lagoon is 2 1/2 acres.
Mr. Yonke stated that if it had to be an onsite wastewater system, it would have to be 2 1/2 acres regardless of the zoning district. But the zoning district would allow lots as small as 7000 square feet and if that appendage were not on this, there would be no need for a variance, and there would be no public input at all, they could just make a plat and submit as fifteen lots with a cul-de-sac street.
Member Bossaller stated that hypothetically, if applicants donít get what they want, they could sell the property to another developer who could then build on 7000 square foot lots if they wanted to.
Mr. Kohl stated yes, if they could get a variance for the stem, or finds a way to circumvent the regulations, which applicants havenít done. Up to this point in time, these lots were all platted prior to people catching this sort of thing, this remnant was left here in a way that would not be acceptable today. Mr. Pounds bought that problem thinking to put houses on the corner. Applicants didnít even want to plat this property. In the first concept sketch with just four lots, without this being platted. It cost the applicants money to survey the property and to create this as part of a plat. The staff said no, there is only one way for applicants to do this, youíve got to create lot 5, plat the stem and request a variance from the Board of Adjustment. The issue of the variance really doesnít have anything to do with the density of the subdivision, the size of the lots, the number of the lots, it is all about lot 5 not meeting the 3 to 1 ratio, it exceeds it by a lot. You look at what Mr. Pounds has purchased and he got this problem with the property, if he could give it away, it would probably be to his advantage. But even that canít be done without replatting and replatting cost money, so it would cost money to even give it away
Mrs. Antal asked how it happens that the whole street and across the lake and on the other side of the lake is County Downes, how does it happen that the one corner is not a part of the covenants.
Mr. Kohl stated that when you create a final plat, it has a name on it, the name of this plat is Pounds Place. All of the other lots out here, the names of those plats are County Downes. When they are platted, they are connected to those covenants. That is why they are part of it and this plat is not. All the plats that say County Downes on them are not 2 1/2-acre lots. Some of the lots on the other side of the lakeshore are called County Downes and they are 7000 square feet lots.
Mr. Meyer stated that on the new plat, where the applicants planned on putting those houses, that property was tied up in court for a lot of years from what he understood. Burnam owned that, but for some unknown reason it wasnít platted the same time County Downes was because it was tied up in the courts.
Mr. Kohl stated he didnít know if it was this property or some of the property over to the east.
Mr. Meyer stated yes, it was a corner property.
Chairperson Rootes asked staff in order for the developer to give a parcel of land to the subdivision to use as public space it also has to be a legal lot with access.
Mr. Yonke stated it either has to be separate legal lot or be re-divided and equally combined in to one or more lots. For example this stem could be divided in to ten equal pieces, each of which be replatted into the original lot along the south side, or it could be divided in to two pieces, each of which divided and added in to pieces on the north side or combinations thereof to where it gets pieced up and platted equally in to those lots. But because there are so many variables in that, this is kind of a first step that has to be undertaken by anybody to get it divided.
Mr. Antal stated that if it does go that way, the people who live on that side would pay more taxes.
Mr. Yonke stated if they were to acquire the additional land and add it in to theirs, they would have more land.
Mr. Antal asked otherwise, the owner of lot 5 would pay the taxes.
Mr. Yonke stated yes, the owner of lot 5 will be paying the taxes on this entire piece, even though there is a restriction that you can not build anything along all the back frontages of those houses in County Downes.
Chairperson Rootes stated there would also be a 16-foot easement.
Mr. Yonke stated that in addition the homeowner of lot 5 would be providing at no cost, an easement so that if the Sewer District ever does plan something that could be done without anyone having to pay for the easement. There will be an infrastructure cost to build the system but not for the easement acquisition that you normally would find if this were not platted.
Chairperson Rootes stated that if the Board approved the variance tonight and the land has been platted, if adjacent property owners are interested in buying that property it would need to be surveyed and added to the other parcels.
Mr. Yonke stated it would be a two step process. The property owner would request a vacation from the original plat, which means their lot is effectively be removed from the original plat and then a replat is done where a surveyor draws it showing the whole area now combined in to one. That vacation does not actually take effect until that new plat is formally recorded. The original land, if it were subject to covenants the new plat, even thought it is removed from the original, would probably be subject to the same covenants.
Mrs. Antal stated that if a homeowner in the middle does that, does that remove the easement to the people down.
Mr. Yonke stated it would not remove the easement because the easement would be required as part of the replat. The problem with coordinating with ten property owners is that you can kind of cut off pieces as you go off the back, but you canít break that chain in the middle. Unless everybody goes along in one shot it would have to be done in pieces and that would have to be coordinated so that it was cut down to where it didnít become disconnected from lot 5. That is part of the problem with why applicants didnít pursue all of this before.
Member Bowne asked if the restriction placed on it would also restrict any outbuildings or anything at all.
Mr. Yonke stated no buildings as long as it is part of lot 5.
Member Bowne stated she didnít know what the big deal is here. To Member Bowne, it looks like it is a wonderful green space. That is all it is, a green space. From what Member Bowne is hearing, the neighbors are draining their sewer down on it anyway. Member Bowne stated if the property was hers, she wouldnít like that.
Mr. Kohl stated that applicants have chosen not to bring that up.
Member Bowne stated that if the property was going to be left as a green space it is not a big deal as long as everything was working properly, if everything wasnít working properly, then it might become a big deal. This is just a green strip and it will have a limitation to where it canít be built on. As long as it meets the weed ordinances and everything else then it should be fine.
Mrs. Meyer stated that they keep the weeds off of that strip.
Member Bowne stated it sounds like the neighbors are using the property anyway.
Mr. Meyer stated they have been cutting all the way back up to the farm fence except for the cedars and that is a windbreak for the Meyerís.
Mr. Kohl stated that some of the property owners are doing a nice job of maintaining their portion behind. Others are using it as a dump for various unsightly things. There is some of both going on. Mr. Pounds has inherited all of that.
Mr. Antal stated that the neighboring homeowners are taking care of Mr. Pounds green space.
Mr. Kohl stated that the Antalís and Meyerís are doing the nicest job of any of the owners out there.
Mr. Bossaller stated that the good news is if applicants sell the property, then that person is going to be responsible so the neighboring property owners wonít have to do it anymore.
Mr. Antal stated that their concerns are a moot point since the property is not a part of block 1.
Chairperson Rootes stated that she is glad the property owners came to the meeting tonight because they had the opportunity to air their concerns to the developer. If that strip of land were to be sold to the property owner to the north, when they plat their land into lots, it could be included and County Downes homeowners could have someone elseís property backing up to their property instead of the cedars. As long as it is not sold to them, it would be a buffer to the two subdivisions.
Mr. Meyer stated that applicants are purchasing property on the other side of the farm fences and that is where there will be houses going.
Mr. Yonke stated there could. The two properties to the north, one is a ten acre; the other is a seventeen acre lot. If those property owners chose to purchase the stem, just as the owners along Colchester have an option to purchase the stem. If the property owners to the north buy it and then come in to divide their property, that property could be platted into two lots and the back line of the lots on Colchester would be the property line, just as it is the property line between this piece right now.
Chairperson Rootes stated there would be a sewer easement also.
Mr. Yonke stated the sewer easement would stay either way, because staff would require an easement to be on any additional replatting. The Sewer District, once they get that easement, is going to want to see that easement stay there.
Chairperson Rootes asked if the land to the north were to develop, they would probably want to access that sewer there.
Mr. Yonke stated it would be a potential way for them to get sewer to that property to develop it at a higher density than they can if they have to try onsite systems.
Mrs. Antal stated they would have to do something with their lagoons first.
Mr. Yonke stated that seventeen acre piece for any developer to want to do any reasonable number of houses is going to want to get that central sewer, which means the developer is going to have to upgrade the capacity for the whole area.
Member Bossaller made and Member Bowne seconded a motion to approve, with staff recommendations, a request by James B. and Martina Pounds for a lot that does not comply with the length to depth ratio required by Table A of the Subdivision Regulations.
Chairman Rootes Y Member Bossaller Y Member Bowne Y Member Clementz Y
Motion to approve request carries 4 Yes 0 No
* * * * * * * * * * * * * * * * * * * *
Planner, Thad Yonke gave staff report stating that this property is zoned A-2, the adjacent zoning is also A-2. This two-acre site is located approximately 4 1/2 miles west of Ashland. There is a dwelling on the site and a mobile home. The requested variance is to renew a permit for a second dwelling. This permit was first requested in June 1985. The permit has been renewed every two years since the original approval was granted; the last review was conducted in August 1999. The requested variance is to renew the permit. Staff notified 6 property owners. Additionally, staff has received a letter from State Farm Insurance as requested by the Board last month, indicating that State Farm has insured the property as well as some basic information.
Present: Betty Rippeto, 1505 Wren School Road, Hartsburg.
Wanda Worley, daughter of Ms. Rippeto, 1701 W. Woodie Proctor Road, Columbia.
Chairperson Rootes stated the Board had heard information last month regarding the request and asked the applicant if she had any additional information.
Ms. Rippeto stated she didnít know what information the Board wanted to know.
Chairperson Rootes asked the applicant if she would like to explain why Ms. Kelly (State Farm Insurance) came out to Ms. Rippetoís home.
Ms. Rippeto stated that Ms. Kelly is the insurance agent, the Board asked applicants to have the mobile home inspected and Ms. Kelly is the one who inspected the home. Ms. Kelly stated to applicants that she didnít see anything wrong with the home.
Ms. Worley stated the home was a 1980 and didnít know where the Board came up with a 1969 trailer.
Ms. Rippeto stated that they lived in a 1969 trailer first.
Mr. Yonke stated that the original trailer was a 1969 trailer, which was later replaced with a 1980 trailer.
Chairperson Rootes asked if staff knew when the trailer was replaced.
Mr. Yonke stated there is no record of a building permit for that replacement. But that is not uncommon, especially when the switch was done shortly after the permit was issued. That is right about the time when the County started to do inspections.
Chairperson Rootes stated that perhaps this was placed at a time when they would not have been required to get a building permit.
Mr. Yonke stated the ordinance would have required a permit, but whether that was commonly understood by the general populace of Boone County is a different question.
Chairperson Rootes stated the fact that there was no record of a permit or an inspection would not trigger any type of inspection now.
Mr. Yonke stated no, the fact that it is a 1980 trailer means at least it does meet the HUD seal requirements that a 1969 home would not. There is at least a minimum level of safety. Other than that, there is an inspection that was conducted that indicates the electrical is in good service, it is a 100-amp service, older models had 60-amp service. Mr. Yonke stated that would lead him to believe that wiring concerns that you would normally find on an older model are not the same kind of concerns here.
Chairperson Rootes asked staff about the wastewater situation on any older application is there any kind of periodic review or is that just complaint driven.
Mr. Yonke stated that once a wastewater system is inspected if someone comes in now, for example, to switch out a trailer, they just take the old home and put the new one in and connect to the sewer, staff sends an existing wastewater report to the Health Department. Unless theyíve received complaints or the size has changed, there is generally no requirement to modify the system.
Chairperson Rootes stated the request would come from the Health Department rather than from the Building Inspection Department.
Mr. Yonke stated yes.
Open to public hearing.
No one spoke in favor of the request.
No one spoke in opposition of the request.
Closed to public hearing.
Member Bowne stated that at the last hearing, it was asked whether the home was still the same 1969 trailer, Ms. Rippeto stated no, it is a 1980 trailer. But since there was no record of that, and the Board was not sure as to the year of the home, that is part of the reason Member Bowne asked for an inspection. The other thing is even though the home is a 1980; the home is still 21 years old. Member Bowne stated she would still ask for an inspection, it wouldnít have mattered, except that Member Bowne stated she feels better about the situation now that the trailer is a 1980.
Chairperson Rootes stated that she feels her questions have been answered.
Member Bossaller stated the applicants tried to conform to the request from the Board, they got a document from the insurance agent.
Member Bowne asked applicant if the home was air-conditioned.
Ms. Rippeto stated yes.
Member Bowne asked if it was a window unit or central air.
Ms. Rippeto stated it was a window unit.
Chairperson Rootes stated she appreciated the fact that the Board now has a record of the year of the home.
Member Bowne made and Member Clementz seconded a motion to approve for two years, a request for renewal of a permit issued to Jimmy Ray Rippeto for a mobile home as a second dwelling on 2.0 acres, located at 1505 Wren School Rd., Hartsburg.
Chairman Rootes Y Member Bossaller Y Member Bowne Y Member Clementz Y
Motion to approve request carries 4 Yes 0 No
* * * * * * * * * * * * * * * * * * * *
Member Bowne stated that anytime these trailer requests are this old, Member Bowne stated she will continue to ask for an inspection. Whether an inspection is done or not is totally up to the applicant. Member Bowne stated she has lived in a trailer and it worries her that these trailers are getting this old.
Member Bossaller stated the only problem he had with that is the applicants need to know this prior to coming in for a review. Member Bossaller stated he doesnít know about the system that staff uses, but there is no doubt that Member Bossaller would want an inspection. There needs to be a system in place.
Chairperson Rootes stated there was a long discussion after the September 2001 meeting stating that the Board needs to get this on the agenda to discuss changing the by-laws to have these permits conform to the variance for the pre 1976 trailers.
Mr. Yonke stated that he believed the discussion centered around the fact that you have the same problem with a pre 1976 trailer that your concerns have expressed the conditions of the trailer that it would apply to both.
Chairperson Rootes stated that they did discuss changing the by-laws.
Mr. Yonke stated he wasnít sure if it would totally be the by-laws or the zoning regulations that stipulate what will be required for an applicant to provide, like pictures, are actually written in the zoning regulations for requirements for submittal for a request for a variance. Mr. Yonke stated he believes that is what Member Bossaller was getting at as far as notifying applicants. For those kind of requests then obviously, that information is right there in the regulations, if they want to apply for it, they can see right there that the information would be required. It may require having the zoning regulations modified to require whatever the Board is attempting to require.
Chairperson Rootes asked if the Board canít, for their own procedures, ask that applicants conform to those same things for variances and have that with the application so they would be aware.
Mr. Yonke stated he was not sure.
Chairperson Rootes stated she would like to have this on the agenda for next month and have a report because it keeps coming up.
Member Bossaller stated the Board needs to call a special session. Member Bossaller stated he was all for trying to do something.
Member Bowne stated this caused the applicants to come back, if they had known, it wouldnít have been necessary for the applicants to come back. Member Bowne stated that is why she wanted it reflected in the minutes that she would request that again. If applicants had known that, then they could have possibly done it all in one trip. The other thing that concerned Member Bowne was that the records we had all stated the mobile home was a 1969. In essence it was a 1980 trailer.
Mr. Yonke stated the information that staff had stated the home was a 1969.
Member Bowne stated the applicant should have had that on their request and they should have had the age of the trailer on it, and it would have flagged the application.
Member Bowne stated it really wouldnít have made any difference in her request, because a 1980 trailer that is 21 years old would not have changed Member Bowne would still have asked for an inspection.
Member Bossaller stated that he wished the Board could require inspections. Member Bossaller stated he was concerned with that when he first sat on the Board of Adjustment.
Planner, Bill Florea stated that one thing to keep in mind when you require an inspection, youíre going to have to adopt some kind of standard in what the Board is asking to be inspected. And what are you judging that inspection against when you decide whether or not to allow a permit for that home. It is not as easy as just asking for an inspection, you have to take it another step further so someone knows what is being expected of them when they provide this inspection.
Member Bossaller stated that he is not qualified as to say whether or not the trailer is safe and what standards to use. In this case, someone other than the applicant looked at the home and that is about it. It is about as unprofessional as you can get.
Member Bowne stated that one thing that report informed her is that the trailer had a 100-amp service. The other thing it told her is when she asked the applicant about the air conditioner, she was told it was a window unit, that is pulling about 30 amps right there it means she only has 4 other breakers in that house. There are only two people living in the trailer and as an elderly person, Member Bowne stated that she doubts there would be much more amperage being pulled. But that is why Member Bowne asked that question. That would be one thing Member Bowne would want to know in an inspection, is what is the service. She would also expect to know what type of wiring the home had as well as how many breakers the home has. Another problem with these older trailers is that the sub floor goes out of it and you have holes in the floor. Member Bowne stated that she was sure an insurance agent would have noted that in an inspection but maybe that is a bad assumption. That is a problem with older trailers, the Board is renewing these permits and allowing elderly people, or someone caring for an elderly person, to have a trailer there and it goes on and on. They are not living with these other people, how do we know what these homes are like. Member Bowne feels the Board will be caught responsible for allowing something to happen to these people. The applicants are asking for a variance and the Board is granting the variance. These rules are there for a reason.
Mr. Florea stated the Board is granting a variance for a mobile home you are not certifying that this is a safe mobile home. If you request an inspection and make a decision from that inspection and something happens, a Member may be bringing liability to the Board that was not there before. Because once you have knowledge of something, for whatever reason something happened that was foreseeable they may come back to the Board as a responsible party for issuing that permit. A second issue, the County, by statute doesnít have the authority and is prohibited in requiring protective inspections. The County doesnít have the authority and is prevented by State Law from doing the types of inspections that the Board is asking.
Member Bossaller asked if the Board was now breaking the law.
Mr. Florea stated he was not saying that because the County is not doing that inspection. Mr. Florea stated however, there is very limited liability to the County when it comes to substandard housing. That doesnít eliminate the moral issue but it does probably have something to do with a legal issue.
Member Bowne stated that if it were indeed a 1969 trailer without an inspection, then individually the Members are going to be drawing a line in their minds and say at some point that this is too far and itís going to have to stop. Member Bowne stated that asking for an inspection was a way for her to not arbitrarily draw that line. Because without an inspection Member Bowne stated she would arbitrarily draw that line in her mind and any trailer that is over a certain year old, she will say no.
Mr. Yonke stated that is understandable that the Members would feel that way. In discussions with Mr. Shawver about this, he has indicated the County Attorney has been rather reluctant to go this direction because of the potential for added liability about the fact that the County is prohibited from doing this inspection. That brings up the point of who is qualified to do inspections, what are they going to look at. If the Board misses something in their standards then it is arguable that the Board asked for all of these other things, why didn't you ask for this? That is where the liability issue comes in. When you do set some of these standards you are taking that responsibility somewhat from the applicant and shifting it somewhat to the Board.
Chairperson Rootes stated there are two totally separate things. A person comes with a pre 1976 trailer. Even if it is the only thing on the property the Board needs to make some kind of judgement regarding a variance for that. The other issue is should they have any second home there. On those it doesnít really matter if it is new or old, kept up or not.
Mr. Florea stated if it was a pre 1976 trailer, that variance would be required as well.
Chairperson Rootes stated it was two separate things though.
Mr. Florea stated that was correct.
Mr. Yonke stated it was generally held at the same public hearing. When they are proposing a second dwelling that is also a pre 1976 they are requesting two variances effectively for the same home.
Chairperson Rootes stated it is two separate issues. When people keep coming back, it doesnít matter if it is a new trailer or old or if it is kept up or not.
Mr. Yonke stated that the variance that the Board is granting to allow a second dwelling for a hardship is really based upon the need of the applicant. It is totally counter from everything else you see as a variance. Everything else you see as a variance absolutely has to be related to the property and is irrelevant of the property owner. In a real sense, that is the way it is supposed to be looked at. This is a specific provision in the variances that looks at the needed situation of the owners, versus that are really related to the property. It really has a lot more to do with that. There are obviously issues as to whether you can physically cram two dwellings on to one piece of property, if it is on 4 acres or a half-acre, that certainly is an issue in terms of practicality. The reality is if the people didnít need that situation because of their particular circumstance, you wouldnít just be seeing people coming in for a second dwelling just for the heck of it. That alone isnít good enough, theyíve got to have a reason for needing that second dwelling before they even get to you.
Member Bowne stated that when someone requests a variance for an elderly person, they come in and say they need a second home, itís a mobile home. Twenty-two years later, they are still coming back for this variance. The Board canít just look at it and say the need is there. The Board is looking for the welfare of this older person; this is what the variance is being judged on. At that point, if you donít look at the soundness of the structure, then you are not looking at the welfare of the elderly person. Down the road there are going to be more older homes coming up for a variance and if the Board has to grant a variance based upon the welfare of the person, then the Board needs to look at the total welfare of the person, not just the need to have someone nearby. The Board has to look at whether they are putting someone at risk by granting this variance, because the person that is caring for them is just leaving them there. If the applicants canít get an inspection, the Members have to draw a line in your mind and stick to it.
Mr. Yonke stated that may be a real issue, just how long should a temporary variance be granted. It is kind of hindsight; you are looking at it twenty years later. Was there really the need for this variance to begin with?
Mr. Florea stated that brings another question maybe not to what has been granted in the past, but maybe looking more closely at the ones that Members are asked to review now and make sure that there really is a pressing need. Some of these things that have come forward have been pretty demonstrable and yes, there has been a pressing need. Others have been more marginal. Maybe as a Board you will shift your level of comfort on those thinking long term as to whether this will be a five-year thing or are we looking at another twenty-year variance.
Chairperson Rootes stated that the original request from the Rippetoís had to do with teenagers who needed to be in a different environment.
Member Bowne stated that Ms. Rippeto mentioned that there was still one teenager living with her, that need was still there.
Chairperson Rootes stated that Ms. Rippeto is now getting old enough and soon even if the teenager should find another place to live, Ms. Rippeto needs a place to stay.
Mr. Yonke stated that weíve had numerous cases where over time even if the original granted variance was marginal, as each review has gone by in reality, the case for the need actually increases each time. For instance, a variance was granted for the wife, she passes away a few years later, but now the husband needs the variance. Even though the variance was originally granted for the wife, it gets renewed because the husband is in the same situation.
Chairperson Rootes stated they probably need to get that spelled out a little better instead of people just saying that it is the same situation as two years ago.
Mr. Yonke stated that most of the time he believes that comes out in the testimony. Certainly each request is effectively a new request so the Members have the option of granting or not granting in those kind of circumstances.
Chairperson Rootes stated that maybe Members have felt uncomfortable in the past asking personal questions.
Mr. Florea stated that sometimes it is uncomfortable having to ask personal questions during a public meeting. Maybe it would help to have a requirement to provide written documentation from a physician or some other type of caregiver. It could be part of the record without actually having to ask them in front of strangers during a public hearing to explain their person medical history.
Chairperson Rootes asked staff to explain to Members exactly what was needed to base a new request for a pre 1976 home. When someone comes forward with a request for a variance for a pre 1976 mobile home what is the decision based on.
Mr. Florea stated he didnít believe there was any criteria. The way Mr. Florea understands was that this is public notice put on the record to the person who wants to occupy a pre 1976 home that there may be safety issues involved with living in that home and beware.
Chairperson Rootes stated that in other words, grant every request.
Mr. Florea stated only if you choose to. If the home looks bad and you have neighbors coming in stating they donít want that home in their neighborhood, you are within your bounds to say no.
Mr. Yonke stated that applicants are required to present pictures as well.
Member Bowne asked if the pictures also had to show the inside of the home.
Mr. Yonke stated there were no specifications on whether the pictures had to be inside or outside.
Mr. Florea stated that some of these things could be advised to the applicant when they come in for the request. Pictures of the inside and outside, because the Board Members want to see them. It doesnít say. That is something that can be done without a regulatory change, but knowing that is what the Board wants to see, but doesnít guarantee whether or not the applicant provides the pictures and staff can not reject an application from submittal because of that.
Member Bowne asked how that is different from asking for an inspection.
Mr. Yonke stated staff could ask the applicants and pursue, rather than requiring them to provide these. Staff can direct applicants that this is something that the Board Members want to see and for applicants to have a really good chance rather than risk denial, it would be good for the applicant to provide pictures. That is different than requiring photos as a submission requirement.
Mr. Florea stated if Members are looking at photographs the Members are making more of a subjective decision whereas when you are looking at an inspection report it is more objective. The person taking pictures are not going to show you pictures of the wiring or holes in the floor. Whereas an inspection report will contain those sorts of things. It is different in that respect. Not that staff couldnít tell people that if they got an inspection report the Board would like to see that and it could help their case. Staff can say that but canít require that
Member Bossaller asked who does inspections that the Board would accept. If insurance agents do the inspection, it could be a conflict of interest.
Mr. Yonke stated those are valid concerns that is part of staffs concern with making it some form of regulatory requirement is who would do it and who is qualified and who is out there to even do it.
Member Bossaller stated that may be able to be worked out. Staff is concerned about the County being liable for whatever standards. Member Bossaller stated that where he works, the inspector is liable for his report.
Mr. Florea stated that Member Bossaller is an agent, all he is doing is facilitating a sale. The County is issuing a permit and taking an action based on the content of that report. There might be something in that report that gets missed. If the report is deficient, that is the responsibility of the inspector. But if there is something in that report that gets missed and the County takes action, then liability could fall to the County.
Member Bowne stated she was not asking for a report that states whether the dwelling is safe or not. She was asking for a report that told her what type of wiring was in the home, what type of breakers and how many. Whether there are holes in the floor, whether the roof leaks. Member Bowne stated she would not ask the inspector to tell her it was safe. But she wants to know what the home looks like on the inside. She could go out to the home and knock on the door and ask the applicant to show her the house. The applicant could say yes or no, if they say yes, then she could look at those things. But if they say no then she doesnít know what is in there and is leery from what she has seen on the outside, then she has a moral issue as to whether she is allowing something to continue that isnít safe.
Mr. Yonke stated you would probably be able to find an inspector to do that type of an inspection if you are only asking about those things rather than having the inspector determine whether the home is safe. However, the more things open it up to someone stating that you asked about breakers, the floor and so on, but this other thing went wrong, why didnít you ask about this? If you miss something in what you are asking about, then there is potential for liability.
Chairperson Rootes asked staff if applicants filled out anything for a renewal like they do for new applications.
Mr. Yonke stated no.
Chairperson Rootes stated that they didnít actually apply for a renewal, it would be good if the applicants could fill out a new application each time they renew.
Mr. Yonke stated that each one is a new request, effectively the Board only grants the variance for two years, if you donít renew, it is gone.
Chairperson Rootes stated that this would be a good opportunity for applicants to tell you what mobile home it is so that staff could make sure they have not switched it out and to state the reason.
Mr. Yonke stated that at least every two years we could get new pictures.
Chairperson Rootes stated that staff would be able to update their records as well. Chairperson Rootes would like an application with a clear statement as to why they need the variance.
Mr. Yonke stated he would also like the paper trail.
Chairperson Rootes stated they could ask for the reason the hardship changes.
Mr. Yonke stated that may be a more do-able thing. It makes the hearings go quicker.
Member Bossaller stated he wanted to provide protection for the applicant. If there was a format from day one, it would be better.
Mr. Yonke stated that the first thing the Members could do is scrutinize the new requests more thoroughly than some of these that have been hanging out forever.
Mr. Florea stated staff would try to help more on their end to try and get more written documentation as far as the need, health problems. Usually when you ask people they provide it.
Chairperson Rootes asked what the fee was for reapplying.
Mr. Yonke stated there is no fee.
Mr. Florea stated he hesitates to change the zoning regulations too much, but could possibly add some simple things such as application requirements for example photos inside and outside and perhaps proof of insurance.
Chairperson Rootes asked staff that if at the next meeting, they could give some type of report.
Mr. Yonke stated they could give some kind of report but didnít know how extensive it would be.
Member Bowne made and Member Bossaller seconded a motion to have a report from staff for the procedure on changing the procedures. In the meantime Board Members would like to see the applicantís personal statement on a renewal requests.
Motion passed by acclimation.
Meeting adjourned at 8:30 p.m.
Paula L Evans
Minutes approved this 27th Day of December, 2001.