BOONE COUNTY BOARD OF ADJUSTMENT

BOONE COUNTY GOVERNMENT CENTER

801 E. WALNUT ST., COLUMBIA, MO.

Thursday, December 27, 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

Cindy Bowne

Tom Trabue

 

Absent: Larry Bossaller, Vice-Chairperson

Kay Clementz

 

 

Also present: Thad Yonke, Staff Bill Florea, Staff

Paula Evans, Secretary

Minutes of October 25, 2001 meeting were approved with a correction on page three stating the relationship of Mr. Kohl to Mr. Pounds, adding that Mr. Kohl is the surveyor of the property in question.

REQUEST

  1. Request by Darrell and Jeanne Jones a variance from the requirement to provide a 50í setback adjacent to state highways, on property located at 5825 Hwy 163, Columbia. (Subdivision Regulations Appendix B 1.8.2)
  2.  

    Planner, Bill Florea gave staff report stating 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 form 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."

    Darrel and Jeanne Jones are the owners of Jones Power Sports located at 5825 Highway 163, Columbia. Prior to June 1995, land zoned M-L did not have to be platted as a subdivision unless public right-of-way was being created. The tract that Jones Power Sports is located on was created under the old regulations. The building situated on this lot was built in 1995.

    The applicants have purchased an adjoining tract of land. It will be necessary to plat that tract with the existing tract in order to gain full use of the land. The plat must conform to the current subdivision regulations. As mentioned, the existing building was built in 1995. In 1995, Appendix B 1.8.2 of the Subdivision regulations was adopted, requiring that a 50í building line be provided adjacent to any state right-of-way. A portion of the existing building projects beyond the required building line.

    a). The applicant will incur unnecessary hardship if his variance is not granted, as they will not be able to utilize the additional land they purchased in the manner they contemplated when it was purchased. It is also impractical to think that they would relocate the building that has been there for 6 years.

    b). Granting this variance will not endanger the health, safety or welfare of the public.

    c). Granting this variance will not thwart or circumvent the general intent of the regulations.

    Staff recommends that this variance be granted.

    Chairperson Rootes stated that she noticed 12 property owners were notified and asked staff if they have heard any response.

    Mr. Florea stated he has heard no responses.

    Present: Steve Scott, Attorney for Applicant, 201 Westwood Ave, Columiba.

    Darrell Jones, applicant, 5825 E. Highway 163 S., Columbia.

    Mr. Scott stated that the staff report pretty much explains the situation. Mr. Scott stated that if the Board Members have not seen the plat map, he does have a copy with him that shows the existing configuration of the building in relation to the 50-foot line. There is a small corner of the northeast of the existing building that encroaches that line.

    Chairperson Rootes stated she would like to see the map.

    Mr. Scott presented a copy of the plat map to the Board and explained to the Members the placement of the building showing where the building encroaches the building line, the additional acreage applicants purchased.

    Open to public hearing.

    No one spoke in favor or opposition of the request.

    Closed to public hearing.

    Member Bowne stated that on November 6, 2001, it says that applicants were planning to purchase the property and knew there was a problem and were looking for a variance. A document dated December 18, 2001 says that applicants have already purchased the property and knew there was a problem before applicants purchased the property. Member Bowne stated she assumes the purchase took place in the interim or one of these statements is wrong. Member Bowne asked applicant if they have already purchased the property.

    Mr. Scott stated he didnít know where Member Bowne was getting those dates from.

    Member Bowne stated she has an attachment from Brush and Associates on November 6, 2001, it states that applicants are planning to purchase the tract and a Staff report on December 18, 2001 which states applicant has already purchased the property.

    Mr. Scott stated the purchase took place in between those two dates and doesnít believe the problem with the building line encroachment had come to light before that. The earlier communications with the Planning Department by Brush and Associates had to do with the general issue of being able to purchase the lot with the not for development designation until such time as the applicants got it platted as a subdivision and discussion with the process of subdivision. The actual problem of the building line setback isnít related to the subdivision approval, it did not come up until the subdivision plat was submitted to the Planning Department, Mr. Scott believes that was in the later part of November.

    Member Bowne stated that was stated in the letter from Brush and Associates, the last paragraph states the northeast corner of the existing building will encroach in to the building line, asking for a variance in the building line setback. Is that the existing building or was that a planned building.

    Mr. Scott stated that is the existing building.

    Member Bowne stated that applicants were aware of it November 6, 2001 before the purchase.

    Mr. Scott stated he didnít have the document that Member Bowne is looking at, so it is difficult to respond.

    Member Bowne gave Mr. Scott a copy to review.

    Mr. Scott stated the warranty deed, the actual transaction took place on November 5, 2001, the deed was recorded on November 9, 2001. Mr. Jones may be able to address of whether he was aware of any problem with the existing building encroaching over the 50-foot setback line before the purchase was completed.

    Mr. Jones stated he was not aware. Mr. Jones stated he contacted the County to make sure the acreage could be bought, he was told once it was purchased it would have to be a subdivided.

    Chairperson Rootes stated that it sounds like maybe applicant purchased the property on November 5, 2001 and the letter on November 6, 2001 refers to an attached plat, provides a 50-foot setback in all areas except in the northeast corner of the building.

    Chairperson Rootes asked Member Bowne if there was a conclusion to those comments.

    Member Bowne stated that what she is seeing is that this was brought to someoneís attention by the letter from Brush and Associates that prior to purchase applicants were aware that this is a violation of the setback. When the Board looks at this as a hardship, because applicant wonít be able to use the land that was purchased. Applicants purchased the land knowing that there was a setback problem and that is documented in the letter. Applicants knew there was a problem and bought it anyway and now want a variance. Applicants should have asked for the variance beforehand. Member Bowne stated she doesnít like someone coming around the back door knowing there is a problem and purchased it anyway, then ask for a variance.

    (Mr. Scott reviewed the letter.)

    Member Bowne stated at the bottom there is a reference to November 5, 2001, which is whenever they did the file.

    Chairperson Rootes stated the situation that causes the need for the variance does not come from the new property that is being purchased, it comes from the property and the building that is on it. Which was in compliance when it was built and became non-conforming after a change in regulations.

    Mr. Scott stated it is not non-conforming right now, it only becomes non-conforming in the sense that when the subdivision goes through the approval process, it will not be in compliance without the variance because of the encroachment on the older piece of land they already own. Mr. Scott stated that as Mr. Jones stated, he has been working with Mr. Jones on this transaction for some time, frankly, this was a difficult transaction because there were problems with the seller trying to back out of the deal, but finally got it worked out. Mr. Scott stated he was not aware of any problem with encroachment prior to the time applicants closed on the sale. Mr. Jones has advised that he was not aware of that problem either. This is the first time that Mr. Scott has seen the letter from Brush and Associates sent to the planning office. Brush and Associates did not discuss that problem with Mr. Scott prior to the time the land was purchased. Mr. Scott stated he didnít believe it was discussed with Mr. Jones either.

    Member Trabue stated that he had a little different belief, the reason we are here is because of the existing building getting caught in a trap with platting and the new regulations. Although there are some discrepancies on timing, perhaps this should have been taken care of ahead of time. Member Trabue stated he didnít think this variance is a result of someone trying to pull something over. This variance is very appropriate, it is the type of variance the Board is here to deal with.

    Member Trabue stated if the Board were to approve this variance, it would be appropriate to show the 50-foot building line on the plat in case something were to occur to this building that caused it to be reconstructed in the future, there wouldnít be a varying building line on the plat. Actually have a variance allowing this building to go over the building line.

    Mr. Florea stated the plat should probably reflect the actual building line.

    Member Trabue stated the building line is just an arbitrary line in time for plat purposes. It is alright for a structure to encroach over a building line if a variance is approved for that to occur.

    Mr. Scott stated that the applicant has no problem with that 50-foot setback being shown on the final plat, with a notation that a variance was granted.

    Member Trabue stated he believes they are granting a variance to the building as opposed to changing a building line, a platted line. But that is up to Staff.

    Mr. Florea stated that is a semantic argument, are you changing the building line or giving the building permission to encroach over the building line. It goes back to the definition of a building line. Mr. Florea believes the definition involves the actual location of the building itself. So following that definition, it would be impossible for a building to be over the building line, because the building defines the building line.

    Member Trabue stated that if the building is at 60-foot, we would not show the building line at 60-foot.

    Mr. Florea stated the building line is a minimum standard.

    Member Trabue stated it is not a problem, it is just a thought that occurred to him as he looked at the plat.

    Member Bowne stated if that part of the building would burn, then applicants could restructure it right back over the building line again.

    Member Trabue stated the way the plat is shown, it could.

    Mr. Florea stated that once you grant a variance, yes, the variance runs with the land and anyone who owns property that is benefited by that variance, if their building is destroyed, then yes, they have the right to rebuild using that variance. It doesnít go away because the building goes away. The definition of a building line is a line specifically established upon a plat or by the zoning regulations which identifies an open area unoccupied and unobstructed from the ground upward in which no part of a building shall project except as provided by the zoning regulations.

    Member Trabue stated it is not a problem, he only raised it as something that can be dealt with between the surveyor and the building department.

    Chairperson Rootes stated that at the current time, the land is not platted and asked staff if there is an advantage to the County and the public in getting it platted. Or is it simply an advantage to the property owner.

    Mr. Florea stated he didnít see any advantage to the public. The rights-of-way on the adjacent roads are adequate, there may be a small piece of right-of-way that is being obtained, but it is certainly not very extensive.

    (Mr. Florea checked)

    Mr. Florea stated there will be a small right-of-way dedication on Highway 163. That would be the only advantage to the public.

    Chairperson Rootes stated it seems it would just move the area toward a more orderly growth and development.

    Mr. Scott stated that this is part of a larger piece. The piece that the owner bought to the north is part of a larger tract of land that is owned by Dorsey and Tina Bass. Many years ago there was a preliminary plat of that land that was never carried through to a final plat. This constituted one of the lots in their original preliminary plat, it fits in with a plan that may or may not develop down the road.

     

    Member Trabue made and Member Bowne seconded a motion to approve a request by Darrell and Jeanne Jones a variance from the requirement to provide a 50í setback adjacent to state highways, on property located at 5825 Hwy 163, Columbia. (Subdivision Regulations Appendix B 1.8.2)

    Chairman Rootes Yes Member Bowne Yes Member Trabue Yes

     

    Motion to approve request carries 3 Yes 0 No

     

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  3. Request by Columbia Scottish Rite Temple Association, Inc. for a variance from the requirement to
  4. provide a 50í setback adjacent to state highways, on property located at 33 Masonic Dr., Columbia. (Subdivision Regulations Appendix B 1.8.2)

    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 form 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."

    Scottish Rite Temple Association has land located at 33 Masonic Drive just north of Columbia. The property was acquired in 1990 and a subdivision plat was approved in 1991 under the regulations in force at that time. A structure was completed in 1997.

    The applicants are now in the process of re-platting the existing lot into two lots. The new plat must conform to the current subdivision regulations. In 1995 Appendix B 1.8.2 of the Subdivision regulations was adopted, requiring that a 50í building line be provided adjacent to any state right-of-way. The existing structure does comply with this requirement. However, the applicant would like a variance so that the proposed structure is exempted from this requirement.

    a). Staff does not feel that the applicant will incur unnecessary hardship if this variance is not granted. Since the land has not been platted, building construction plans have not been filed and no construction has taken place, the building can be designed to comply with current regulations.

    b). Granting this variance will not endanger the health, safety or welfare of the public.

    c). Staff is concerned that granting this variance will set a precedent that is inconsistent with the intent of the Subdivision regulations.

    Staff recommends that this variance be denied.

    Chairperson Rootes stated that the staff notified 61 property owners and asked if staff received any response.

    Mr. Yonke stated no.

    Present: David Bennnett, Engineering Surveys and Services, 1113 Fay Street, Columbia.

    Sam Bornhauser, Representative for Acacia Blue Lodge, 807 Broadhead, Columbia.

    Mr. Bennett stated the reason applicants requested this variance is mainly due to the fact that in this particular case, the right of way that exists, from the center line of Highway 63 to the right of way which now exists in front of the property is approximately 600-feet. It is quite substantial, that interchange is fully developed at that point, there are ramps in both directions. Masonic Drive is existing, applicants donít feel that MoDOT will need additional right of way at that location. The reason applicants donít feel that the MoDOT will need it is because within that 50-foot strip, there is a considerable elevation distance between Masonic Drive and where the building will be placed to the tune of 15-feet. There is also water, electric and utility lines within that 50-foot corner which would have to be relocated. The elevation differential will cause some problems in trying to widen anything at that location. The current plat does show up to 25-foot building line. Applicants would like to continue that 25-foot building line. One of the main reasons is from a stand point, if you could call it a hardship, the building the applicants are proposing is approximately 10,000 square feet. If applicants have to go to the 50-foot building line, it will push the building back to where a portion of the building will be shadowed by the Scottish Rite Building. It would be a little behind the Scottish Rite Building. Based on the plat applicants had, which has a 25-foot building line on it. The building would fit nicely on the property with the 25-foot building line. Moving it back to 50-foot would make the building line be shadowed by the Scottish Rite building. That is the main reason for the request.

    Mr. Bornhauser stated that another concern is leaving a space between the buildings. There needs to be a fire lane between the buildings. It would not be easy for a fire truck to go through there. And so the buildings wonít be sitting on top of each other.

    Chairperson Rootes asked applicants if they had any plats or drawings showing the proposal and how it might need to be changed without the variance.

    Mr. Bennett presented a site plan to the Members. Mr. Bennett pointed out the building site and where the applicants wished to place the building.

    Open to public hearing.

    No one spoke in favor or opposition of the request.

    Closed to public hearing.

    Member Trabue asked staff the reason they are having to subdivide this property, is this a County requirement that applicants subdivide this property to put the additional building on this lot, or this applicant generated.

    Mr. Yonke stated the current zoning for this property is recreational, the general provisions that allow for one primary structure on any individual lot that is not a multi use facility requires that you have a separate lot, so applicants are creating a separate lot for the separate use. The other alternative would be to use a multi-use plat which also platting. Either way applicants are back before the Board.

    Chairperson Rootes asked if it was going to be separate ownership.

    Mr. Bornhauser stated they were two different temple associations.

    Member Bowne asked if there were fire hydrants on this property.

    Mr. Bornhauser stated yes.

    Member Bowne asked if they were already set.

    Mr. Bornhauser stated they were already set about midway up that parking lot on the west side of the building.

    Member Bowne asked if that was the only fire hydrant on the property.

    Mr. Bennett stated that the plan the Members are looking at has not been submitted for review. Applicants anticipate there will be another fire hydrant placed.

    Chairperson Rootes asked if this property is under a pre-annexation agreement with the City of Columbia.

    Mr. Bennett stated yes.

    Chairperson Rootes stated that whatever applicants do there will have to comply with City regulations also.

    Mr. Bennett stated yes, the pre-annexation agreement was approved by the Planning and Zoning Commission on December 20, 2001.

    Member Trabue asked staff the rational behind the 50-foot building line on State Highways adjacent to State right of ways.

    Mr. Yonke stated that this is in case the State does decide to increase the facilities that there is sufficient room without removing a building and there would be a provision for utilities to be able to work within there. It is not only for the main road itself, it is also for whatever outer road might be there. That is something to take in to account too. That road does not currently connect through.

    Chairperson Rootes stated it doesnít really matter how much right of way the State owns, there is an additional 50-foot setback from the property line.

    Mr. Yonke stated that is correct, it is not a dedication of right of way, but it is a setback for the building in case they have to come back and get more right of way in the future.

    Mr. Bornhauser stated the bank has a 70-degree slope.

    Member Bowne asked how far away from that bank is the proposed building going to be.

    Mr. Bennett stated probably about 50-feet.

    Member Bowne asked the applicants if they were putting a driveway around the building that takes in to that.

    Mr. Bornhauser stated not on that side of the building.

    Member Trabue stated that the Board has looked at several variances like this in the past. The 50-foot setback is primarily to allow for future highway improvements. As Mr. Bennett indicated, this is already a fully developed interchange with a sufficient amount of right of way. This piece of property was divided under the regulations that were available at the time. Member Trabue stated the applicants are getting caught in the new regulations. Member Trabue stated he felt comfortable with this request.

    Chairperson Rootes stated she respected Member Trabueís engineering experience and looking at the topography on the map, it looks like the building is situated in the optimal place from the top of the lot.

    Member Trabue stated given this is a proposed building, it could be designed to fit the property without variances, it may change applicantís plans somewhat, with the requirements that are associated with a large sized structure. Member Trabue stated he is not concerning himself with that as much as whether this is an appropriate variance or not, Member Trabue believes it is.

    Member Bowne stated that when she looks at it, the building is not built yet, you can always change the plans. Member Bowne stated she was a little concerned about the fire access, but when applicants stated this was still just a proposal, Member Bowne stated that she knew in other instances theyíve set a fire hydrant on each end of the building to allow adequate water supply and the fire department usually goes for that so you donít have the full fire run around it. The regulations are here for a reason, but Member Bowne always goes back to why canít she grant a variance. You can only grant a variance if it a hardship, not endanger the health of the public, Member Bowne stated she doesnít see that as being a public hazard except for the precedent that it sets down the line, that is what she sees a lot of and that is the calls Member Bowne receives is that so-and-so got it.

    Mr. Bornhauser stated he would like to add something on the hardship, applicants have designed the building and have gone through considerable expense to design that building working under that 25-foot setback that was on the original plat. The building has been ordered, it is a metal building, there would be financial hardship if it is not granted, because applicants were not aware of the 50-foot setback until recently.

    Member Trabue stated if there was no existing plat with a 25-foot building line on it, Member Trabue stated he would be concerned with setting a precedent as well by approving a variance like this. Member Trabue stated he felt comfortable because it is an existing plat and not an old plat.

     

    Member Trabue made and Member Rootes seconded a motion to approve a request by Columbia Scottish Rite Temple Association, Inc. for a variance from the requirement to provide a 50í setback adjacent to state highways, on property located at 33 Masonic Dr., Columbia. (Subdivision Regulations Appendix B 1.8.2)

    Chairman Rootes Yes Member Bowne No

    Member Trabue Yes

     

    Motion to approve request does not carry. 2 Yes 1 No

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  5. Request by Columbia Scottish Rite Temple Association, Inc. for a variance from the requirement to
  6. provide one parking space for every 100 sq. ft. of floor area for property located at 33 Masonic Dr., Columbia. (Zoning Regulations Section 14 (4)).

    Planner, Thad Yonke gave the staff report stating that this property is located at 33 Masonic Drive in Columbia. This is in the northeast quarter section of section 19, township 49N, range 12W. The current zoning is REC (Recreation). The adjacent zoning is A-2 (agriculture).

    This site is located just north of Columbia near the intersection of Highway 63 with Prathersville Road. The current land use is The Scottish Rite Temple is located on this property. The requested variance is the zoning regulations section 14(4) requires one parking space for every 100 square foot of floor space for a club or lodge building. The applicants would like to expand the existing parking lot of the Scottish Rite Temple and share it with the proposed Acacia Blue Lodge. The original zoning for this tract is A-2. In 1990, the land was rezoned to REC. Scottish Rite subdivision was platted in 1991. In 1997, construction of the Scottish Rite Temple was completed.

    A reduction in the amount of required parking spaces through shared parking area with the structure on the adjoining lot.

    Staff notified 61 property owners of this request.

    Present: David Bennett, Engineering Surveys and Services, 1113 Fay Street, Columbia.

    Sam Bornhauser, Representative for Acacia Blue Lodge, 807 Broadhead, Columbia.

    Mr. Bennett stated the purpose of this variance is related to shared parking. These lodges are similar in nature and in their uses. However, they meet at different times, Mr. Bornhauser can address it more specifically. The situation applicants have currently, the County required 158 spaces of parking. Applicants have calculated 59 for Scottish Rite, the Acacia Lodge would require 99 spaces. Applicants are proposing 102 spaces to be shared between the two. Each individual building could be served by the lot and meet the requirements if it were an individual building. Applicants donít feel they need 158 spaces because of the way the buildings are used. This approach also has added benefits in that they are reducing the surface which reduces storm water run off and reduces the amount of lights you might have on the parking lot. There is some benefit from an environmental standpoint. There will be a joint use agreement that would be entered in to with both parties, Scottish Rite and Acacia Lodge have agreed to that concept. They feel this is appropriate.

    Mr. Bornhauser stated the Scottish Rite building is serving as a meeting hall for the two lines in Columbia. It is being utilized every night and on weekends for the Scottish Rite. Once there are two buildings there, the use will not increase, it will shift between buildings. Scottish Rite meets one night a month and an occasional weekend. The two buildings will never be used at the same time there will only be about 30 cars there at one time. Scottish Rite has their reunions twice a year, usually there is about 100 attendees, they are using the existing parking.

    Chairperson Rootes stated she recently had an opportunity to participate in a meeting at the Scottish Rite Lodge, it was for the City Water and Light Department, they had all day training there and there were a lot of cars in the parking lot, the lot was full. Chairperson Rootes asked applicants if the buildings are used by outside groups very often.

    Mr. Bornhauser stated he doesnít believe the Scottish Rite building is used very often. The only time it is used by outside groups is for a substance abuse program in the summer. School teachers come in for two days to use their building. Mr. Bornhauser stated they wonít rent their building out. The Scottish Rite does rent their building out occasionally. In the large building, there will be no daytime activities except for the substance abuse program.

    Member Bowne stated she doesnít know enough about the Lodge to know what activities the Lodgeís have. There wonít be an overlap during the holidays?

    Mr. Bornhauser stated no. During the Scottish Rite reunions, they may use a portion of the Acacia building while they are doing their reunions. If at the Acacia building they are having a lodge meeting, they may go and eat at the Scottish Rite building. The buildings are going to be shared and they will never have meetings at the same time. Both groups have the same members and they canít be in two places at once.

    Open to public hearing.

    No one spoke in favor or opposition of the request.

    Closed to public hearing.

    Chairperson Rootes stated her main concern had to do with the joint use agreement and how binding that would be on future owners of the property that would end up with no parking.

    Mr. Bornhauser stated their by-laws state that if they sell the building, it has to be to the Grand Lodge of Missouri, and they would take control of it. They are going through the planning process to the north of this on Masonic Drive. Mr. Bornhauser stated they canít sell their building with the Grand Lodge approval. Scottish Rite is also a Masonic body, there will be a condominium type association agreement, whereas the maintenance of the grounds and parking lots and the full use will be had by both parties. Everything is conceptual, so there is no signed document. Whatever association agreement is drawn up it would be like a condominium association where you have reciprocal uses of the parking and grounds and both bodies will share maintenance and cost of maintaining those. Mr. Bornhauser stated he can not guarantee that is the way it will be written, but that is they way it has been discussed between the two buildings.

    Chairperson Rootes stated that staff did not make a recommendation and asked if this is something the Board of Adjustment can grant a variance for.

    Mr. Yonke stated the reason the staff did not make a recommendation is by general policy, the Staff does not make recommendations on zoning variances, which this request is. Staff is specifically required to make a recommendation on a subdivision variance, which is what the previous two requests tonight were. Generally, Staff gives direction if they are asked to on a zoning variance. Other than that, they just have a factual staff report. It is certainly within the Boardís purview to grant a variance from those kind of conditions such as parking numbers if the Board finds that there is grounds for granting the variance. The Board should be specific as to what they are granting in terms of what number of parking spaces. The only concern that Staff has is that since there is no plan officially submitted, theoretically, the department hasnít even calculated required parking. In the design phase, Mr. Yonke stated, he is sure the engineers did to predict what the Planning Department would need, but from the Staffís point of view, we really donít have much information to make a recommendation even if they wanted to. Frankly, staff doesnít know what the required parking or the City of Columbiaís parking requirements.

    Chairperson Rootes stated that no matter what the Board does tonight, they will still have to submit plans to the City.

    Mr. Yonke stated it depended on what the pre-annexation agreement requires. Typically, pre-annexation agreements require that the City has to approve also.

    Chairperson Rootes asked if the proposed parking does not meet City requirements then they would have to go to the City Board of Adjustment?

    Mr. Yonke stated potentially, Mr. Yonke stated he could not determine whether the City Board of Adjustment can grant a variance in an area they donít have jurisdiction over yet.

    Member Trabue stated Mr. Bennett could probably address that because Member Trabue stated he believed Mr. Bennett has addressed the City parking requirements.

    Mr. Bennett stated the only City parking requirement that is found in the City ordinances is in relation to fraternal orders, which this is. Their parking is actually less, the requirement is 1 space for every 200 square foot. With the County requirement, the calculation is 158 spaces required. The City requirement is 80 spaces.

    Member Bowne asked the size of the existing building.

    Mr. Bennett stated he is not sure.

    Member Bowne stated that is what the 58 spaces is based upon.

    Mr. Bennett stated it is 5807 square feet.

    Member Bowne asked the size of the parking lot now, does it have more than the 58 spaces.

    Mr. Bennett stated he believed it was more than 58 spaces.

    Mr. Bornhauser stated it was more than 58 spaces.

    Chairperson Rootes asked if the City has specific rules concerning the provision of off site parking as required spaces.

    Mr. Bennett stated he is not sure.

    Chairperson Rootes stated if the spaces are on the Scottish Rite lot as opposed to the Acacia Blue Lodge lot. Will that satisfy the Cityís requirements if it is on a separate lot?

    Mr. Bennett stated in a complex such as shared parking, the City does somewhat encourage it.

    Mr. Bornhauser stated when applicants talked with the City staff initially, they were all for this type of parking arrangement. Allowing one egress for safety reasons.

    Member Trabue stated there was about 55 spaces.

    Member Bowne asked staff if the Board could word this that they can grant the variance to meet the minimum requirement of the largest building instead of setting it at a certain number.

    Mr. Yonke stated that does pin it down to something. It may not be an exact number right now, but it is certainly a concrete number in terms of if they have a building with so many square footage, that dictates a specific number.

    Member Bowne stated they could do it at 100 percent or 102 percent of the largest requirement.

    Mr. Yonke stated as long as what youíve defined as easily understandable as an exact number once you plug whatever other number is generated, then that would be acceptable because it is not vague, that is the key.

    Member Bowne stated that the same members are in both lodges, it is the same people, the exact same membership.

    Mr. Bornhauser stated it is not the exact same membership. The Scottish Rite valley goes from Kirksville to Rolla, but those people are not driving here everyday, they are coming in on weekends. The bulk of the membership are either in Acacia Lodge or Twilight Lodge, which will both occupy the new building that will be built there.

    Member Bowne stated she understands that they are not coming in everyday, but the Board has to look at the big event. Because whenever the parking lot is full, where are these people going to park? They will park out on the street or on the road or on the easement.

    Mr. Bornhauser stated the big event has already taken place, this was the reunion. At the lodge meetings, for them to have more than 30 people at one time is highly unusual.

    Member Bowne asked how many people were at the big event.

    Mr. Bornhauser stated around 100 people show up. Those are taking place now with the current parking that is there. And that doesnít mean you have 100 cars.

    Chairperson Rootes stated she knew it would not be easy to accommodate overflow parking, there is no one elses parking lot people could go to. Chairperson Rootes stated she feels confident that applicants would want to design for the parking that applicants think they will need. Chairperson Rootes asked if there were additional land available in the event that applicants see an increased need in the future where they could easily expand a parking lot.

    Mr. Bornhauser stated there is land to the east of the existing building. People wouldnít be able to go between the buildings to park now because the Board didnít grant the variance. There would have been parking behind the current building. The capability of adding parking to keep it close to the building if applicants went to the south, a lot of the members are older and that parking wouldnít be equalized if they took that south part of the lot.

    Member Trabue stated he is comfortable with this request, shared parking between facilities like this is what needs to be done.

    Member Bowne made and Member Trabue seconded a motion to approve a request by Columbia Scottish Rite Temple Association, Inc. for a variance for shared parking between the Scottish Rite and Acacia Blue Lodge buildings at the rate of 102 percent of the minimum required for the largest building located at 33 Masonic Dr., Columbia. (Zoning Regulations Section 14 (4)).

    Chairman Rootes Yes Member Bowne Yes Member Trabue Yes

     

    Motion to approve request carries 3 Yes 0 No

    Mr. Bennett asked the Board if they wanted to appeal the first request to a full board, what do applicants do to accomplish that.

    Chairperson Rootes stated if applicants wanted to wait until the full Board was present, it needed to be requested before the hearing. Chairperson Rootes asked staff if this was something that could be appealed to the County Commission.

    Mr. Florea stated no, the decision of this Board needs to be appealed in Circuit Court.

     

    OLD BUSINESS

    Planner, Thad Yonke stated there is no staff report for this review. The item is on the agenda because staff received a phone call from Mr. Cox indicating he did not wish to renew the permit.

    Mr. Yonke stated he informed Mr. Cox it would be best if staff had something in writing saying he didnít want to renew the permit, because a phone call can be from anybody saying they donít want to review the permit. Mr. Cox was reluctant to do that, Mr. Yonke stated he didnít have any way to make Mr. Cox send a letter. Mr. Yonke stated that staff determined that it be placed on the agenda for renewal and if no one showed up, take that as being their decision to not try to renew the permit. It is up to the Board to deny the review. Mr. Yonke stated he didnít have the information, because staff was expecting Mr. Cox not to be here.

    Member Bowne asked if Mr. Cox stated he had removed the trailer.

    Mr. Yonke stated that what Mr. Cox indicated is the trailer that is placed there is not his trailer, it is owned by the previous occupant, or tenants, that are no longer there. Mr. Cox wants the owner of the trailer.

    Member Bowne stated to the best of her knowledge, that trailer is still there.

    Mr. Yonke stated he is sure it is still there, Mr. Cox indicated that he wasnít in control of when it was going to be removed, Staff told Mr. Cox that he still needed to take some kind of an action one way or the other with this. The practical process is if the Board of Adjustment dismiss this and deny the renewal, then it becomes a zoning violation and it is treated as such. Staff will send Mr. Cox a letter telling him he has a certain amount of time to remove the unit, or call Staff and work with them to set a schedule to remove the unit. If they donít comply, then it becomes a zoning violation potentially prosecutable.

    Chairperson Rootes stated along the lines of the staff report that the Board had asked for, if the applicant has to apply for the variance each time, they in fact did not apply.

    Mr. Yonke stated that currently, that is not the procedure. Mr. Floreaís staff report addresses some of that. When they get to that, it will be addressed. If an applicant was required to file a form for the renewals, it would solve this particular situation about having to get something in writing. The staff would have to get the renewal or by default the applicant would not be reapplying so it would be dismissed. That would solve that problem.

    Member Bowne made and Member Trabue seconded a motion to terminate the variance for a permit issued to Thurman Cox to place a mobile home as a second dwelling to be used by his daughter, on 10 acres located at 17151 N Barnes Rd., Hallsville, MO.

    Chairman Rootes Yes Member Bowne Yes Member Trabue Yes

    Motion to approve request carries 3 Yes 0 No

     

    * * * * * * * * * * * * * * * * * * * *

    NEW BUSINESS

    At the September meeting, the Board of Adjustment requested a report on the feasibility of requiring an inspection report on all trailers over a certain age. The trailer age, at which an inspection would be required, was not specified. For purposes of this report, the inspection issue has been broken down into two categories. The first category is requests for approval to install a pre-1976 trailer. The second category is requests to install a mobile home on a property as a temporary second dwelling.

    The primary issue in granting the permit for a pre-1976 mobile home is public acknowledgement of safety issues regarding trailers built prior to HUD standards (aluminum wiring, various other fire hazards, inadequate emergency egress). The intent of the county regulation is to ensure that the applicant understands the potential safety hazards associated with pre-1976 mobile homes.

    The primary issue in granting the permit for a second dwelling is whether there is a practical difficulty, which justifies placement of a mobile home on a lot for a period of two years. This is a form of variance where the circumstances of the owner, not a defect of the property, are the focus of the question. The central question in these cases is whether there is a practical difficulty. If there is a practical difficulty, the permit should be granted. If there is not a practical difficulty, the permit should not be granted. An inspection is probably not warranted in these cases.

    An inspection may be warranted for cases where the applicant is requesting permission to place a pre-1976 trailer on a property. According to Dillonís Rule, the county only has such authority as is granted to it by the legislature. Dillonís Rule limits the Countyís ability to require inspection of existing housing. Staff recommends consultation with the County Attorney regarding our authority to require a housing inspection on pre-1976 mobile homes. And, if the county can require such an inspection report what are the implications of using the inspection for decision-making purposes.

    The Board of Adjustment is a quasi-judicial body. The Board does not have the authority to set county policy other than as specifically delegated by the County Commission. BOAís role is to establish a factual record and make a decision based on that record. The facts under consideration must be reasonably related to the issue being decided. Decisions made by the Board must be based on evidence in the record as it is established during the hearing.

    If the county has the authority to require an inspection of pre-1976 mobile homes, that policy probably needs to be established by the County Commission. Therefore, BOA will need to make a recommendation to the County Commission via the Planning and Zoning Commission. Such a recommendation should include proposed inspection standards

    As a member of a quasi-judicial body, the members of the Board should be aware of two potential pitfalls. The first is bias. A member who makes public statements regarding a zoning issue that indicate an intent to vote a certain way, despite the evidence of record is showing a bias. Bias can lead to disqualification of a member. The second is committing an act that is ultra vires. Actions of the Board or individual members of the Board that are outside of the powers granted to the Board may be considered ultra vires. This can open the Board and the members, as individuals, to liability.

    Additional items regarding applications to allow temporary placement of a mobile home are as follows:

    Mr. Florea stated that with the temporary second dwelling category, the question is whether or not that is an appropriate land use, and is there a practical difficulty. In those cases, the quality or soundness of the mobile home that is placed on the property is really not pertinent to answering the question of whether there is practical difficulty. In those cases, it would be staffís recommendation that an inspection is not appropriate. On the pre-1976 mobile homes, the primary purpose of that request is so that a public acknowledgement of the safety hazards involved in a pre-1976 mobile home. Those were built prior to the HUD standards, they were not inspected as modern post 1976 mobile homes are. There is not adequate egress, there may be wiring problems and other hazards associated with living in those units. If the County does have the ability to require an inspection, that would be the appropriate action in which to require an inspection. There is enough question in Staffís mind whether the County has the legal authority to require these inspections, that Staff would want to seek legal council before Staff advises the Board further. If legal council stated yes, the County can pursue this course of action, that is a policy decision that should be made by the County Commission. Staff would request the Board to forward a recommendation to consider that change, it would be taken to the Planning and Zoning Commission then to the County Commission for adoption. Some of the other issues involved as far as requesting new applications for renewals of temporary permits, staff agrees that is a good idea as discussed earlier, that would eliminate this problem all together. There will be a paper trail and if someone chooses not to reapply simply by missing the deadline is cause for the Board to terminate that approval. Written documentation regarding the practical difficulty, that is something staff can request on the application form. The one caution is that it is important to enter that in to the record at the hearing, otherwise the decision canít be based on that information, unless it is made part of that record. The Boardís decision has to be made on the record that is established at the hearing. Between Staff and the Board that it is made sure the positive statement that "we would like to introduce the application and supporting materials in to the record."

    Chairperson Rootes stated it doesnít have to be read.

    Mr. Florea stated it doesnít have to be read in to the record, because it is in the files. For example, frequently the zoning regulations are entered in to the record, but those donít have to be read. But just so a document can be referred to that can be found in the files is adequate.

    Mr. Florea stated the question of photographs of the inside and outside of the trailer. This is not a requirement of the regulations. If this is what the Board would like, this is an amendment that should be made to the zoning regulations. So it is printed and it becomes regulatory and can enforce the requirement to submit photographs inside and outside.

    Mr. Florea stated the term "practical difficulty". There is no definition in the zoning regulations, that becomes somewhat difficult sometimes determining practical difficulty. There have been applicants where they had a child who is going to college, is that a practical difficulty? Maybe it is, maybe it isnít. Mr. Florea stated in his mind it is different than someone elses. It may be hard to pin down what a definition for practical difficulty is. Mr. Florea stated in his experience, more often than not, that is interpreted to mean a medical hardship. There is a medical problem where someone needs assistance in living. Whether that is because of disease or simple old age. That doesnít mean that is the only definition. Mr. Florea stated he would offer that as a suggestion or a place to start.

    Member Bowne stated doesnít this specifically say that financial is not considered a hardship. The Board listens to people say that they have a hardship, theyíve already invested a lot of money. Doesnít this specifically say financial is not a hardship.

    Mr. Florea stated they are not establishing a hardship, but a practical difficulty. This is a different category of variance. It sounds like semantic mumbo-jumbo.

    Member Bowne asked if practical difficulty was in here.

    Mr. Florea stated that practical difficulty is the term that is used in cases where there is a practical difficulty, the Board of Adjustment can allow placement of a mobile home on a lot for up to two years. That is different than a typical variance. A variance usually is a hardship that is created by the land itself. It has nothing to do with who owns the land.

    Member Bowne stated that is where the financial exception is not a variance criteria.

    Mr. Yonke stated financial difficulties are not a legal hardship.

    Mr. Florea stated this is a geared toward the property owner or the persons in control of the property. Is there a practical difficulty for them, or a relative they may located on their property. Financial difficulties do not qualify as a hardship, but they may qualify as a practical difficulty.

    Mr. Yonke stated the problem is you really have two totally different sets of standards. One is a hardship standard that is better defined at least clarified through the language. The other is practical difficulty standard, which isnít really defined.

    Member Bowne questioned that what the staff is stating is when someone comes in and says they have an elderly parent that needs to be cared for and want to locate them on the property. All the Board is looking at is, is there a practical difficulty as far as them needing to have that person close to them. It doesnít matter whether they are setting a mobile home or whether they are building a house that wonít fit on the property, for whatever they are trying to do, whether they are going to build a shack out back for them to live in, that is not the question. The question is do they need to have them near them or not. The other issues are addressed by other zoning requirements.

    Mr. Florea stated yes, the provision that allows them to have a second home on the property specifically says a mobile home. It canít be a doublewide, it canít be a site built shack, it canít be a mansion, it has to be a mobile home. The Department has had applicants that have chosen not to apply because they didnít want to live in a mobile home.

    Chairperson Rootes stated because it is by definition, temporary.

    Mr. Florea stated yes. As far as the quality of the home, it is not part of the proceedings unless it happens to be a pre-1976 home, but then it falls under that other category and they are making two requests.

    Member Bowne stated it says practical difficulty or unnecessary hardship. Hardship is defined as what?

    Mr. Yonke stated hardship is defined as being related to the property itself. That is a legal definition of hardship. The legal land use text will define hardship as being related to the property itself, not the owners situation. Mr. Yonke stated he didnít know if it would be found in the zoning ordinance, but that is a general recognized term in land use.

    Member Bowne asked Staff where they thought this definition of practical difficulty is going to come from.

    Mr. Florea stated that usually staff writes the definitions that go in to the zoning regulations, so staff would probably try to come up with a definition, bring it to the Board, get the Boards advice amend it to the Boardís satisfaction. Once the Board is satisfied with it, it would be taken to the Planning and Zoning Commission, it would then go from there to the County Commission for adoption. That would be if Staff chooses to do that or if the Board chooses to follow that course, it would be lumped in with the whole sale re-writing of the zoning regulations that is undergoing right now. Staff hopes to have a public hearing sometime in early 2002.

    Mr. Yonke stated likewise to what Mr. Florea indicated earlier in the report about the photographs. If the Board wishes to require that, or look in to that as extra documentation, that would have to be provided in the zoning ordinance as a proposal, so they would be spelled out in the regulations that the Board is administering.

    Chairperson Rootes asked if the Board could consider that question about the photographs.

    Member Bowne stated the question of the photographs is moot. Because it comes back to it doesnít matter what kind of conditions they are living in or what the trailer looks like. The question is, if their parents were old two years ago and had to live near them, and their parents are still old, the practical difficulty still exists and it doesnít matter what kind of conditions they are having those parents live in. It is not right, but that is the way it has been defined.

    Member Trabue stated that as long as it isnít a zoning violation under the criteria.

    Member Trabue stated he doesnít think the Board can sit here and define what appropriate living is for everyone.

    Mr. Yonke stated with the question of practical difficulty, if the Board directs staff to look in to that, like Mr. Florea said, staff tries to work out the definitions, mind you, the current staff hasnít written any of the definitions the Board is currently administering. So no definition that is in there was created by the current staff. The first place the staff starts for things like this is a legal dictionary and a land use dictionary, staff starts with those and try to see how they need to be hammered and worded in to the application.

    Member Trabue stated he believed it would be appropriate since staff is currently looking at changes in the ordinances. That has been identified as a term that is not been appropriately defined and it is difficult to define. Some guidance in the regulations might be helpful.

    Mr. Florea stated getting back to the photographs, those might be more appropriate in the pre-1976, if the Board wants to see it included, that could apply to those only.

    Member Trabue stated he didnít believe he wanted to take that responsibility for looking at a picture and saying that he feels comfortable with that. By looking at it and then approving the variance, Member Trabue has accepted that. Even though on their form it says they understand this is an approval of standard of care. Member Trabue stated he is not sure he wants to see photographs. That mobile home, when it gets there it has to meet the requirements of the Building Codes and the other ordinances. Either it does or it doesnít.

    Mr. Florea stated the only requirement it will have to meet is tie down standards.

    Member Trabue stated then so be it, that is fine.

    Mr. Yonke stated it will have to meet setback requirements also.

    Mr. Florea stated it will have to meet zoning standards, but as far as building code is concerned.

    Chairperson Rootes added the way sewage is handled and whether Boone Electric will hook up the electric.

    Mr. Florea stated that issues to the structural integrity or the safety of the trailer itself, there is no standard.

    Member Trabue stated no one will address that. If they come and say an engineer has to certify it as structurally sound, Member Trabue stated he didnít know anyone who would.

    Mr. Yonke stated that the other problem is that a pre 1976 trailer or a brand new 2000 trailer are the same thing as far as that goes. You are going to find that nobody is going to be willing to do it because of the way the State statutes work as far as how those things are manufactured and certified. How it gets set, we canít require that out of a brand new trailer even if they wanted to, much less an old one.

    Member Trabue stated that is correct, it is a manufactured dwelling, it is outside your control as far as how many 2-bys are in it.

    Member Bowne stated to set a pre 1976 home, it has to have a variance, correct?

    Mr. Florea stated yes.

    Mr. Yonke stated a pre 1976 on a tract less than 20 acres.

    Member Bowne stated the reason for resubmitting an application was to restate the reason.

    Member Trabue stated he agreed with that.

    Mr. Yonke stated that it was also if the applicant switched the unit from what they originally had to a different one, it eliminates the confusion of whether it is the same trailer that was put in years ago. It clarifies a lot of that so the Members donít have to dig for information.

    Chairperson Rootes stated they make a new legal statement stating what trailer it is, why they need it there. The applicant canít just come in and nod and say everything is the same.

    Chairperson Rootes stated she agreed with comments made during the last meeting in that the Board Members need to think more carefully about the long term implications of some of the variances that are granted.

    Member Bowne stated hopefully that is something they will be able to come up with whenever they define practical difficulty. Just because your parents are getting older and you would like to be close to them, that doesnít necessarily constitute a practical difficulty that says they have to be right outside your backdoor.

    Mr. Yonke stated that as the Members have looked at in the past, sometimes they are the only kin-folk they have in Boone County, therefore, they are close to them so the Members have seen that was necessary. Other times Members have seen that they are surrounded by other kin-folk and they want to merely add another one to the mix and Members have said that it is not necessary. Mr. Yonke stated he doesnít think that anything would really preclude Members from doing what they are supposed to do, and that is looking at the specifics of the issue and seeing and determining whether that standard of practical difficulty is met. However it is defined in the Members opinion as related to the specific application.

    Member Trabue stated that is a decision that is made in a moment in time and three or four years down the road Members are presented with the same situation, the answer may be different.

    Mr. Yonke stated the situation may have changed. The variance gets granted because there is no other kin-folk around. A year and a half later another family member buys an adjoining piece of property, now there is someone close on a legal piece of property. Is there now need to have that second dwelling on the other piece of property? Would the Members have granted it in the first place if the other family member had owned that property prior to the variance? There is a lot of information that may be seen as being relevant to a renewal hearing.

    Chairperson Rootes stated she believes the Members would be hard pressed to grant a permit and allow people who are already in a practical difficulty spend the money to establish the second residence and then two years down the road say that Members changed our mind.

    Member Trabue added that Members changed their minds because the family decided to get close.

    Mr. Yonke stated if the Members wouldnít grant it in the first place if they did that.

    Mr. Florea stated it is not so much that. It is that the applicant gets two family members there and now the brother says he is carrying too much of the load and needs his sister to move here to help. That is what Mr. Yonke was getting at. Not so much as the Members would deny their ability later on just because there is more family in the neighborhood.

    Mr. Yonke stated it is certainly something the Members may want to take in to account.

    Mr. Florea stated that another thing to take in to account is whether the property can legally be subdivided. This should be reserved for cases when there is no other legal option. If youíve got 5 acres of A-2 and you want to put your parents on the land, split the land.

    Mr. Yonke stated it can be done by family transfer.

    Chairperson Rootes stated that if these permits were not available, many familyís would choose to allow the parents to move in to the house with them or build an additional room on the house or make some other arrangement.

    Mr. Yonke stated that all of those options for the most part are legal under the ordinance. However, they are a little more long term than people actually want.

    Chairperson Rootes asked staff if there was still a question before them.

    Mr. Florea stated he is not sure, as far as the inspection. Does the Board wish for staff to pursue that with the County Attorney and investigate that further, or is this an issue that the Board wants to stop now.

    Member Bowne stated that staff has pretty much answered the question that it is not within the Boards purview as to what type of facility it is, whether it is good or bad, whether it is safe or unsafe. The question is, is the need there or is the need not there? The Board can either grant the variance, based upon practical difficulty, or not. What staff is telling the Board is that it really isnít any of the Members business what kind of facility it is.

    Mr. Florea stated there is the question of the pre-1976 mobile home.

    Mr. Yonke stated that staff sends people to the Board if they are wanting to place a pre-1976 mobile home on less than 20 acres, staff makes those people come to the Board of Adjustment. Regardless of where it is in the zoning regulations, that is what staff is effectively enforcing.

    Member Trabue stated that if an inspector is sent to do an inspection, what will the inspector be inspecting for?

    Mr. Florea stated that is what staff has asked the Board.

    Member Trabue asked staff what they thought the inspector should look at.

    Mr. Florea stated he would like to hear that from the Members because Mr. Florea doesnít want to second guess anyone.

    Mr. Yonke stated it can not be the Countyís building inspection staff regardless. They are not empowered to do anything but brand new construction inspections specifically under State law. It would have to be a different inspector. It would need to be decided what they are looking for, who will be recognized as being qualified, what they will be looking at and what they would have to certify. That all begs the question as is there going to be anyone out there that is going to do it anyway.

    Member Trabue stated there are HUD inspectors and FHA inspectors who do this type of thing. What you will find is what we already know. It is a pre-1976 trailer that does not meet the HUD requirements. What the HUD inspector can tell you, or whatever inspector, is the size of the egress that is available as opposed to the current standard. They will tell you what the wiring is as opposed to the current wiring standard. It wonít tell the Members anything they donít already know.

    Member Bowne stated that is why she wanted to see how it was worded to see exactly what it is they are giving a variance for, or why they are giving a variance. The Board is giving a variance to place a pre-1976 mobile home, but why are they giving a variance. That is what Member Bowne wanted to see in the zoning ordinance.

    Mr. Florea stated that at this point staff is having a difficult time finding it and will have to report back to the Board.

    Member Bowne stated without knowing how that reads, Member Bowne doesnít know what to tell staff, what if anything they can put in there for requiring an inspection.

    Chairperson Rootes asked what would happen if they stopped granting variances for pre-1976 mobile homes?

    Mr. Florea stated that was a good question.

    Chairperson Rootes asked how many requests there were.

    Mr. Yonke stated he believes there are fewer pre 1976 requests every year.

    Mr. Florea stated there are fewer because more of them burn down, or are otherwise disposed of. Over time there will be none. There are only a few of them left. As far as the legality of picking a number and saying, essentially, under the Countyís regulations a mobile home is defined as a manufactured home that is built prior to the instigation of the current manufactured home standards. Mr. Florea stated he doesnít know of the legality of specifically excluding a certain housing type.

    Member Trabue stated they do it in the building codes all the time.

    Mr. Yonke stated that they may make pre 1976 illegal.

    Mr. Florea stated they are doing this by applying standards and saying that something canít be built. But this is developing a category of housing.

    Mr. Yonke stated he believed that if the zoning regulations under general provisions said if a mobile home older than 1976 is prohibited, they would probably be challenged pretty quickly and probably lose quickly too. To prohibit without any real good justification as to why from all the area under the Countyís jurisdiction would be fairly difficult. It is the same reason the staff canít just say massage parlors are absolutely illegal. Mr. Yonke stated they have to have a category in which they will fit.

    Member Bowne stated if the Board is granting a variance for a pre-1976 mobile home and it has to be granted because of a safety issue, is that why the variance is being granted, because of the safety issue?

    Mr. Florea stated yes. The variance is being granted to provide public notice to the occupant of the trailer that there are safety issues.

    Member Bowne stated that if the Board is granting that variance because of a safety issue, Member Bowne stated she believed it goes back to the applicant that they have to provide whatever documentation that is necessary to convince the Board that it is safe. Member Bowne stated she didnít believe they should have to put that information out there to say I want to know this and that, if the burden is on the applicant to convince the Board that the home is safe. This is a totally separate issue than the elderly thing. Member Bowne stated that even though she is not comfortable with the elderly issue, she understands that is the way it is written and can accept that. If a variance is being granted on a pre 1976, the variance has to be granted because of the safety issue. It is the applicantís burden of proof to convince the Board that the trailer is safe. What ever information the applicant thinks is necessary to put it before the Board, is what they should put before the Board. If it is not enough to convince Member Bowne, then it wonít be enough to convince her. If applicant has overwhelming evidence that the home is safe, then it will be enough to convince her. Member Bowne stated the burden of proof is on the applicant and cant see the Staff doing a lot of work to make the applicantís job easier.

    Mr. Florea stated he doesnít disagree, if the applicants donít convince the Board, yet, the question remains to what criteria. It is a shot in the dark for these people to come in and say "what is the Board concerned about?" Falling through the floor, getting electrocuted or burning up.

    Member Bowne stated yes, that is what she is concerned about. Pictures inside and out wouldnít be enough to show whether a pre 1976 is safe or not. As staff stated, they will take pictures of what they want to take pictures of. So that will not work. The next question is an inspector, who will inspect? That is up to the applicant to find someone who will inspect it that can provide that type of evidence. Member Bowne stated she tried the route with the insurance, Member Bowne understands that was not any overwhelming thing. What it told Member Bowne that it was enough that the insurance company would write it and they had put it on paper that they hadnít checked it. That puts the insurance company responsible to a certain extent. Member Bowne stated again that she can not see staff putting a lot of time in on this when the burden of proof is on the applicant. It would have to be overwhelming evidence of safety.

    Chairperson Rootes stated she believed having pictures of the outside of the home attached to the application is another record of what trailer it is. It will make it easier to identify and make sure it is the same mobile home. Chairperson Rootes stated she would think the homes would have some type of serial number.

    Mr. Yonke stated if they were newer than 1976, they probably have something like that.

    Mr. Florea stated prior to 1976, they may not.

    Member Trabue stated they are hard to find, even on the new ones.

    Chairperson Rootes stated that as a means of identifying the home, photographs of the outside would be good.

    Chairperson Rootes stated that when it came time for a renewal, would it be fair to ask that an inspector go to see if there are any zoning violations on the property and report that to the Board as part of the staff report.

    Mr. Florea stated he didnít see the inspection as a problem, however, it is a practical problem. Mr. Yonke or Mr. Florea would have to be the ones who have to do it. The building inspectors are not trained in the zoning regulations, so they wouldnít know necessarily what to look for.

    Mr. Yonke stated the other question is would that be relevant to the Boardís decision being made. Staff can do it. There is a practical problem with getting there on a timely fashion to get the information to add to the staff report. From the other point of view, is that the information the Board should be using to base a decision for a pre 1976 trailer or for a second dwelling hardship. Mr. Yonke stated he doesnít know since the zoning violations for having junk cars on the property isnít really related to that, other than they donít comply with the zoning ordinance. That might be the influence Members could draw from, if they are not complying the Board could put a condition on this that is related to the variance the Board is granting. Do Members feel they are going to follow the condition if they arenít following the other zoning regulations, I wouldnítí have a lot of faith they are going to follow the condition. That might be a relevant connection to draw from. Otherwise, just because they have a zoning violation doesnít necessarily negate whether they have a practical difficulty.

    Member Trabue stated if it is not in the ordinances that the Board is required to grant variances for pre 1976 trailers, should the Board even be seeing them?

    Mr. Florea stated if it is not in the ordinance, then no.

    Member Trabue stated the application form that the staff has advises the applicant of the safety issues, and the County is giving the applicant notice that these homes are not as safe as new homes.

    Mr. Yonke stated that looking at the application, it doesnít actually say variance anywhere on it. It actually goes out of its way to say this is a permit to allow permission to place the home. It does not say it is a variance.

    Member Trabue stated it may have gotten started in part because so many of them come in, because they were wanting to put them in as second dwellings. It may have just become an of-shoot of that. For this Board to sit here and identify whether something is safe or not is probably not appropriate. If the County Commission has adopted the ordinance that the Board has to do it, then the Board will do it.

    Member Bowne asked why is the Board doing it.

    Mr. Florea stated the application sites section 15.C., which is the Board of Adjustment. The only thing Mr. Florea can say is that under subsection 4.b. it states "to hear and decide all matters referred to it on which it is required to determine under the regulations of this ordinance as herein provided". All this means is that if elsewhere in the regulations it grants the Board that authority, then it is carried through.

    Chairperson Rootes stated on page 12 (Section 4. General Provisions; subsection 9e), it states "the owner or occupant shall obtain a permit for the placement of a manufactured home or mobile home on property pursuant to the provisions of Section 15.C. of these regulations prior to placing a manufactured home on property."

    Mr. Yonke stated he believes that is referring to the practical difficulty section, because it refers to mobile home and manufactured home. The manufactured home is HUD sealed, by definition. Mobile home is not. The fact that it references both of those would lead Mr. Yonke to believe that this is the second dwelling provision under practical difficulty in 15.C.

    Member Trabue stated it sounds like this will need to be researched a little by staff.

    Chairperson Rootes stated that the Board would like to have the new application for renewals and written information implemented.

    Mr. Florea acknowledged.

    Chairperson Rootes stated the Board would also like to have photographs of the external home with each application.

    Mr. Florea stated the staff could make that recommendation.

    Chairperson Rootes stated that the Board would like to hear staffís definition of "practical difficulty".

     

    ADJOURN

    Meeting adjourned at 8:55p.m.

    Respectfully Submitted,

     

     

    Paula L Evans

    Secretary

    Minutes approved this 24th day of January, 2002.