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HomeMy WebLinkAboutBOA:86-01_Joseph Edwards_280 Glen EagleCover Sheet Case #: Applicant Name: Address: Parcel #: Case Name: 86-01 Edwards Joseph 280 Glen Eagle 273514201020 Administrative Decision Appeal Kandi Shaffran moved that the following be adopted: BEFORE THE BOARD OF ADJUSTMENT OF THE COUNTY OF PITKIN STATE OF COLORADO RESOLUTION NO.86-01 Joseph Edwards, Jr., Lot 13, Block 1, Aspen Highlands S/D 0280 Glen Eagles Dr. WHEREAS, the subject property is within the unincorporated area of Pitkin County, Colorado; and, WHEREAS, the Board of Adjustment is vested with the power to grant or deny such variances by virtue of Title II, Section 16-1.3, Pitkin County code (Land Use Code) and Colorado Revised Statutes, 1973, 30-28-118(2) (C); and, WHEREAS, based on the evidence presented, the Board of Adjustment makes the following findings: 1. Proper notice procedures, including the notification of all adjoining property owners, has been shown by the applicant. 2. The required hardship or practical difficulty has been established. 3. Granting such relief will not cause substan- tial detriment to the public welfare and will not substantially impair the intent and purpose of the Zoning Resolutions and the zoning maps. NOW, THEREFORE, BE IT RESOLVED that the applicant's request for a appeal to an interpretation made by an administrative official creating an inability to obtain a building permit for improvements to owner's garage. Additional conditions or restrictions: WARNING:Any violation of the terms of this resolution may result in rehearing and possible revocation. Bob Throm second the adoption of the foregoing Resolution.The roll having been called, the vote was as follows: Joe Zanin - yes Bob Throm - yes Kandi Shaffran - yes Bill Lukes - yes Evan Gull - no The Resolution was adopted by vote of the Board of Adjustment of the County of Pitkin, State of Colorado. DATED:The Board of Adjustment of Pitkin County, Colorado Attest: _-/ba,.C- L 1 (27% LIt-f Jaf /*1£WK- SecretarA Chairman Coccol pitkin county 506 east main street aspen, colorado 81611 January 27, 1986 Pitkin County Board of Adjustment c/o Mr. Bill Mason Mason & Morse, Inc. 514 East Hyman Avenue Aspen, Colorado 81611 RE: Appeal of Joseph E. Edwards, Jr. Dear Ladies and Gentlemen: You have received an appeal from Joseph E. Edwards, Jr., regarding the denial of his application for a building permit, dated January 7, 1986.This matter is scheduled for a hearing before you on January 28, 1986.In view of the fact that I will probably be unable to attend your meeting, I thought it would be appropriate to provide you with my comments, since legal issues have been raised in Mr. Edwards' appeal. Included in the appeal as Exhibit 'IC, " is my letter to Mr. Edwards dated December 16, 1985.This letter indicates that I have found that there is a reasonable basis for the interpretation made by the Building Department regarding Mr. Edwards' request.It is the Building Departmentls position, in which I concur, that uses which normally occur within the principal residential use are not "subordinate" or "incidental" within the meaning of this term, as used in Section 20-1 of the Land Use Code which defines "accessory building or use."Uses that traditionally occur within the habitable space of the principal residential unit are not and have not been treated by the County as accessory buildings and uses. As indicated in my letter, this interpretation is a matter of long standing with the Building Department, and any change in this approach would represent a substantial policy change by the County.Accordingly, the Planning Office has taken this issue under advisement, with the intention of proposing a Land Use Code amendment to specifically address the issue of accessory uses in residential zone districts.It is my view that a broad policy change in accordance with Mr. Edwards' request is not warranted by the terms of the Code at this time. 1 /1,1 nnar, 'L' '. J U U:, 4 In addition, as I have indicated in my letter, there is a practi- cal solution to Mr. Edwards' problem, which would involve the construction of an enclosed, heated corridor between the existing residence and the garage.If this were done, the County Code requirements would be met, and there would be no prohibition against the use of the area above the garage as habitable space. Even if you are not pleased with these possible solutions, I hope that you will recognize that a significant issue of policy and precedent is involved. Very truly yours, 3-4 Thomas Fenton Smith County Attorney TFS:cd Attachment cc: Alan Richman, Planning Office Patsy Newbury, Building Department 2 C00003 APPEAL TO PITKIN COUNTY BOARD OF ADJUSTMENT Date:January 7, 1986 Case No.:64- e!1 U * 7,09 Owner Joseph E. Edwards, Jr.1 - 229 - su f and Suite 109, 201 North Mill -- 9 ---*,1 , ,;.·.·.2 1 Appellant:Aspen, Colorado 81611 Location of 0280 Glen Eagles Drive Property:Lot 13, Block 1 Aspen Highlands Subdivision Pitkin County, Colorado 1. DENIAL OF BUILDING PERMIT The applicant's architect presented the plans to add an office and bathroom to the uses in the room above the detached garage to the Building Department on November 8, 1985, a copy of which plans is attached as Exhibit A.The architect was advised that "habitable space"was not permitted in an accessory building.When the applicant asked the Building Department for a Code section citation of authority for that position, none could be given; and the applicant was referred to the County Attorney.The applicant sent a letter, dated November 20, to the County Attorney requesting an explanation of authority for the Building Department's position, a copy of which is attached as Exhibit B.The County Attorney responded by a letter of December 16, 1985, a copy of which is attached as Exhibit C. The County Attorney, to support the Building Department's denial, has interpreted the definition of accessory use to be restricted only to uses other than those which normally occur within a principal residence. 2. AUTHORITY FOR APPEAL Section 16-1.1 grants authority to the Board to hear and decide appeals where it is alleged by the applicant there is error ill any order,requirement,decision or refusal made by an administrative official.Section 16-2.1 provides for appeals to the Board Of Adjustment for inability to obtain a building permit. 3. REASONS PERMIT SHOULD BE GRANTED The denial of the requested amendment to the building permit is in error because: a.A home office for an attorney or doctor, while historically a recognized accessory use to a POOF,f,A u' 11-,LUL* residence, is not a use which normally occurs within the principal residence (for example, Dr. Morgen uses the former carriage house behind his residence as his office); and, therefore,even within the County' s restrictive "interpretation" of accessory uses, the proposed accessory use in this case still fits the definition and should be allowed. b. In the alternative,the definition interpretation by the County is contrary to the case law of Colorado, other jurisdictions of the United States and the common meaning of the terms in question.Common accessory uses incidental to residential uses are allowable in accessory buildings.Those types of commonly incidental uses include other uses which applicant had considered for the space in question, specifically, a playroom for the children,fourth bedroom for a live-in sitter, hobby/workshop/studio.The appellant's position on this point is more fully set forth in the copy of a letter to the Board of County Commissioners describing the facts and the law involved in this case,a copy of which lS attached hereto and incorporated by reference as Exhibit D. 4. ADJACENT PROPERTY OWNERS: a.Lot 7, Block 1, Aspen Highlands Subdivision William F. Carr 60 East Scott Street Chicago, Illinois 60610 b. Lot 10, Block 1, Aspen Highlands Subdivision Giles F. and Mary B. Filley 140 Lafayette Street Denver, Colorado 80218 C.Lot 11, Block 1, Aspen Highlands Subdivision Tom and Marybelle Payne Box 9878 Aspen, Colorado 81612 d. Lot 12, Block 1, Aspen Highlands Subdivision D. Stone and Susan J. Davis Box 8904 Aspen, Colorado 81612 e.Lot 14, Block 1, Aspen Highlands Subdivision Robert E. Wilson Box 8225 Aspen, Colorado 81612 f. Tract of land located in Sections 11 and 14 of Township 10 South, Range 85 West of the 6th P.M. described by metes and bounds at Book 211, Page 377 of the Pitkin County -2- pri O Bnc- U/J u U'., J Records in the name of James E. and Alberta L. Moore Box 707 Aspen, Colorado 81612 5. FEES AND NOTICES The twenty-five dollar ($25.00) fee required by Land Use Code Section 16-2.6 is enclosed herewith.On being advised of the amount of any publication fees, the appellant Will remit.Appellant will post the sign required by Section 16-2.4 of the Land Use Code on the premises one week prior to the hearing upon notice of the date of a hearing. The proposed contents of the sign are as follows: Notice of hearing before the Pitkin County Board of Adjustment The hearing will be held an the Pitkin County Courthouse at 5:15 p.m. in the County Commis- sioners Room on the day of , 1986, to consider the appeal of Joseph E. Edwards, Jr., of the denial of an amendment to a building permit for the installation of an office in the detached garage building on Lot 13, Block 1, Aspen Highlands Subdivision. APPELLANT: JO -3-000005 LAW OFFICES JOSEPH E. EDWARDS, JR. THE JEROME PROFESSIONAL. BUILDING SUITE 109,201 NORTH MILL STREET ASPEN, COLORADO 81611 JOSEPH E. EDWARDS, JR. JOSEPH E. EDWARDS, 111 TELEPHONE (303) 925·7Ile January 7, 1986 THIS LETTER WAS SENT TO EACH COMMISSIONER Bob Child Board of County Commissioners 506 East Main Street Aspen, Colorado 81611 Re:Edwards Residence Dear Bob, The Building Department is making an unreasonably restric- tive "interpretation" of the definition of accessory buildings and uses which prevents me from using a room in my detached garage solely because of fears that others might convert similar spaces to bandit units.I request that the Commissioners review this matter. The facts are as follows.When I first designed my house, the garage was attached.On siting the building on the lot, the garage blocked the sun; so I moved it ten feet south. The Building Department then determined the garage was an "accessory building" and had to comply with a 17-foot height limit instead of 21 feet.I asked Patsy Newbury if I could connect the garage by an enclosed corridor to avoid its being an "accessory building" and was informed two-thirds of one garage wall had to be contiguous with a wall of the residence.That standard (a 2/3 contiguous wall) is not set forth in the Codes but was promulgated as an "interpreta- tion."As a result of the accessory building 17-foot height limit, it cost me $8,000.00 to excavate the garage four feet into the ground and then lower the driveway and waterline. From the outset, I considered a variety of possible uses for the room above the garage, including storage, a playroom, a workshop, a studio, a bedroom for a live-in sitter or an office.At the initial permit, I designated that room only as storage because I did not know if I could afford to finish it now.However, I have always contemplated heating and insulating the building, since my wife has wanted a heated garage and I wanted a heated workshop.Subsequently, EXHIBIT D u · J UU •.J i Board of County Commissioners January 7, 1986 Page 2 I decided to complete the upper garage room by adding a small bath and using it as an office. When my architect showed the drawings to the Building Department on November 8, he was informed that "habitable space" was not allowed in an accessory building.Nowhere in the Land Use Code or the Building Code does it say you cannot have "habitable space" in an accessory building.The words "habitable space" are not even used in the Land Use Code but only in the Building Code in Section 409 for the purposes of defining floor area, ceiling heights and room sizes for such spaces.When I asked Patsy Newbury for the authority for her position, she could not cite one but referred me to the County Attorney.I called Tom Smith, and he indicated that he would discuss this matter with the Planning Office and the Building Department and get back to me.I followed up our phone conversation with a letter of November 20, 1985. I am enclosing a copy of Tom's response letter of December 16, 1985.In that letter, Tom takes the position in the second paragraph that the Building Department is interpreting the definition of "accessory uses" to mean only a use which does not normally occur in a residence.Tom's letter says "uses which normally occur within the principal residential use cannot be permitted in a separate (i.e., accessory) building."If that interpretation is to be truly followed, it is hard to conceive of any use that would be allowed in an accessory building.For example, even storage "normally occurs within the principal residential use" and would, therefore, be disallowed in an accessory building. Most houses today have attached garages; and, therefore, the storage of cars "normally occurs within the principal residential use" and again would be disallowed in an acces- sory building.This points out the error of that interpretation. The definition of accessory buildings and uses found on page 224 of the Code is as follows: Accessory Building or Use.A subordinate building or use customarily incidental to the principal building or use and which is located on the same lot with the principal building or use and not including those buildings or uses as defined herein under Farm and Garden Buildings and Use. 000Cos Board of County Commissioners January 7, 1986 Page 3 Webster's New World Dictionary defines some of the key words as follows: subordinate:adj.1. inferior to or placed below another in rank, power, importance, etc.; secon- dary 2. under the power or authority of another 3. subservient or submissive customarily:adv.according to custom; usually incidental:adj.1. a) happening as a result of or in connection with something more important; casual [incidental benefits]b) likely to happen as a result or concomitant (with to)[troubles incidental to divorce]2. secondary or minor, but usually associated [incidental expenses] A reading of the common usage of those words would indicate that an accessory use is one that is secondary to the principal residence but which is usually or likely to be associated with a residence. The Colorado Courts have defined accessory uses as follows: ...a use customarily incident to the principal use, and so necessary or commonly to be expected in conjunction therewith that it cannot be supposed the ordinance was intended to prevent it. ...In other words, an accessory use is one which is deemed to be permitted by implication where the ordinance is silent on the particular use in issue.Sheridan v. Keen, 524 P.2d 1390 citing A. Rathkopf, The Law of Zoning & Planning, Ch.23 (3d ed). Rathkopf in his authoritative treatise on zoning law makes a distinction between accessory uses which are an integral part of the principal residential use (listing as examples automobile garages, servants' quarters, a swimming pool, a hobby workshop) and those accessory uses which, while being a customary or at least a recognized activity associatedwitha residence,are different in character from the principal use (listing as examples a home office of a doctor or lawyer). With respect to uses which are an integral part of the principal residence, Rathkopf states, "a determination that a particular use is an integral part of the principal use is COOC(]3 Board of County Commissioners January 7, 1986 Page 4 in itself a finding that it is 'customarily incidental' to the latter."The Building Department' s "interpretation" is directly opposite to that statement of the general law. This "interpretation" by the Building Department is inconsistent with both the common meaning of the terms which define accessory buildings and uses and are contrary to the historical context iii which those uses arose and the court cases which have interpreted the meaning of accessory buildings and uses. However, even if we were to accept the Building Department's interpretation that "uses which normally occur within the principal residential use" are not allowed in accessory buildings, that does not prevent my proposed use as an office.Home offices for doctors and lawyers were the circumstances that defined the original historical concept of an accessory use.Although home offices for doctors or lawyers are not uncommon, they are not "uses which normally occur within the principal residential use."For example, Dr. Morgen has an office in the former carriage house behind his principal residence.The other uses I have considered for this space, i.e., a room for a live-in babysitter and a recreation room for the children, are also more normally found in accessory buildings than in the principal residence.Separate servants' quarters and the recreation room by a swimming pool are common examples. Also, contrary to the 'earlier "interpretation" from Patsy that I had to have two-thirds of a wall contiguous to the residence, I am now informed (see the fourth paragraph of Tom' s letter) that if I install. a heated corridor to the garage it would become part of the principal residence and not be an "accessory building" and I could then have any of my proposed uses.If I had been advised of that initially, I would have taken the $8,000.00 I spent in lowering the garage, driveway and waterline and would have installed a heated corridor between the two buildings, which my wife actually wanted in the first place.As a result of these inconsistent "interpretations," I am being put to more and more expense.I fail to see the governmental interest in whether there is a heated corridor to my detached garage. The true reasori for this "interpretation" is set forth in paragraph 3 of Tom Smith's letter, which states that it is based on the Building Department's concern that separate or accessory buildings are sometimes converted to illegal units.In other words, I am being denied the right to use my property for legitimate single-family residential or Cos C 10 Board of County Commissioners January 7, 1986 Page 5 accessory uses solely because the Building Department speculates that some other people might be inclined to use similar types of spaces unlawfully.However, if some homeowner is inclined to install an illegal second kitchen, he will do it just as quickly in a basement or in the back Of the main residence house as he would in a detached garage. The "rule of law" which this county was based on means that we write down the rules so that the public can read and understand them according to the common usage o f the terms. When words in our Code are "interpreted" in strained con- structions to try to accomplish other purposes, we no longer have the rule of law but arbitrary fiat. My case points out the danger in these ad hoc "interpretations"; they can be changed at the whim of the administrator (as they have been changed here--2/3 wall contiguity vs. heated corridor), and can be a tool of abuse. It is my request that you review this matter, that I be afforded approximately 30 minutes on your agenda to explain this more fully and that, thereafter, you issue a directive to the Building Department that they stop this unreasonable interpretation and that I be allowed to utilize my detached garage for legitimate single-family purposes. Very truly yours, - Joseph E. Edwards ;-Jr. JEE ch Enclosure Ut JUL..6 2. pitkin county 506 east main street aspen, colorado 81G11 December 16, 1985 Joseph E. Edwards, Jr., Esq. Jerome Professional Building, Suite #109 201 North Mill Street Aspen, Colorado 81611 RE: Edwards Residence Dear Joe: I am in receipt of your letter dated November 20, 1985, regarding your proposal to amend building plans for your residence to include an office/studio above your garage, rather than a storage room in that location.I have discussed this matter at length with Patsy Newbury and Alan Richman, and I find that there is a reasonable basis for the interpretation you have received from the Building Department. You are correct that Section 3-3.27 allows "accessory buildings and uses" within the R-30 zone district.Section 20-1 of the Code defines "accessory building or use," as Ila subordinate building or use customarily incidental to the principal building or use...." It is the County's position that uses which normally occur within the principal residential use are not subordinate or incidental within the meaning of this term, and that they there- fore cannot be permitted in a separate building on the property. Private garages, carports, sheds, and agricultural buildings are commonly included within the meaning of this term.Uses that traditionally occur within the habitable space of the prihcipal residential unit cannot be considered accessory buildings and uses. This interpretation is based not only on our interpretation of the Code, but is also supported by our concern that separate habitable space is frequently converted to separate residential living quarters, as borne out by the experience of the Building Department over a number of years. If the proposed office/studio is a part of the principal residen- tial building itself the County would have no problem with it, 1 EXHIBIT C provided that there is compliance with the applicable FAR and other Code limitations. By providing an enclosed, heated corridor between the existing residence and the garage, this requirement would be met and the County could not prohibit the use of the area above the garage as habitable space. This interpretation is consistent with the past practice of the Building Department in innumerable cases.If you have strong obj ections to this interpretation of the Code, I would suggest that a Code amendment might be appropriate for consideration by the Board of County Commissioners. Very truly yours, r./. '17-LIA Thomas Fenton Smith County Attorney TFS:cd cc: Alan Richman Patsy Newbury 2 n On r•, i U'JULA.J MEMORANDUM Date:November 29, 1985 TO:Tom Smith FROM:Patsy Newbury SUBJECT:Residential Uses - Accessory Buildings Why living space (habitable area) is not an acces- sory use. Requirements for habitable space--U.B.C. Sec. 1205 All portions of Group R (dwellings 405D) occupancies customarily used by human beings shall be provided with natural light by means of exterior glazed openings with an area equal to one-tenth of the total floor area and natural ventilation by means of exterior openings with an area not less than one-twentieth of the total floor area, with a minimum of 1-1/2 square feet. 1207 (a) Ceiling heights.Habitable Space shall have a ceiling height of not less than 7 feet 6 inches except as otherwise permitted in this section.Kitchens, halls, bathrooms and toilets compartments may have a ceiling height of not less than 7 feet measured to the lowest projection from the ceiling. If any room in a building has a sloping ceiling, the prescribed ceiling height (7'6") for the room is required in only one half the area thereof.No portion of the room measuring less than 5 feet from the finished floor to the finished ceiling. 1211 Every dwelling unit and guest room shall be provided with heating facilities capable of maintaining a room temperature of 70 degrees F at a point 3 feet above the floor in all habitable rooms. H409 Habitable Space (room) is space in a structure for living, sleeping, eating, or cooking. Habitable R-3 Residential Table 5A: 503 (d) Fire Ratings for occupancy separations between residential garage - apply, in the case of office or play room, as for any residential use. 408 Garage, private, is a building or a porion of a building not more than 100C square feet in area, in which only motor vehicles used by the tenants of the b,yUL A 1 building or buildings on the premises are stored or kept. 1101 Group M occupancies shall be: Division 1. Private garages, carports, shed and agricultural buildings. 1102 (a) General Buildings or parts of buildings classed in Group M, Division 1 because of the use or character of the occupancy shall not exceed 1000square feet in area or one story in height except as provided in this section.Any building or portion thereof that exceeds the limit specified in this chapter shall be classed in the occupancy group, other than Group M, division , that it most nearly resembles. 60*U.0.10,6 3-3.1 Single Family Dwelling - five bedrooms or less. 20-1 Definition:Dwelling Unit.Any structures or part thereof designed to be occupied as living quarters for any single family and constituting a separate indepen- dent housekeeping unit; comprised of one or more rooms (including no more than 1 kitchen) and bath facilities h physically separated from other room in the same structure. 20-1 Definition:Office, as in home occupation?It then must be on the first floor of the residence-principal use and not occupy more than one half that area. Studio:found only under Dwelling Units 20-1(a). Limited one room, undivided except for kitchen or bath facilities. What is living space? Residential use?Habitable area? I would like explicit definition of accessory use.Laundry? Garage?Workshop limited to woodworking,sculpture, kiln for pottery?Kennel for 1 or 2 dogs, cats or other pets? Solar collectorsf PN:10 of}0015 »9490 C.--3 1 (le,Tut/A . 0 2 November 20, 1985 Toni Smith Pitkin County Attorliey 506 East Main Street Aspen, CO 81611 Re: Edwards Residence Dear TO1Il, I am enclosing sheet A-3 of the drawing for the garage for my new residence, which we submitted to the building depart- ment for an amended permit.The only change was to add a bath to the room above the garage and change its use desig- nation from storage to office/studio.At the time we filed for the original permit, we had not decided exactly how we would utilize that room, but we had been considering alter- natives, like a ping pong room, playroom for the kids, an office, a fourth bedroom, or perhaps only a storage room. Part of our reservation of commitment to a use of the space was uncertainty as to whether we would have the money to finish off the space.Subsequently, we have decided to utilize it as a home office so when I take my work home in the evening there is a quiet place to get away from the television, etc. When we submitted the amended plan showiIlg the completion of this garage room, Patsy indicated that, since we planned to heat it, this was, therefore, "habitable space" and that it could not be heated or so utilized unless it was connected to the main residence by an enclosed, heated corridor. Mywifehadactually wanted a ij enclosed,heated corridor between the garage and the house so she would not have to go out iii the cold after getting out of her warm car, but, for aesthetic and, to a lesser degree, cost reasons, we de- termined to just have d covered walkway between the garage and the house and were not planning to fully enclose or heat that connecting corridor.When I asked Patsy the authority for that position, she cited me 5 18-3.4, which merely states that the building inspector is authorized to require the removal of fixtures and utilities or other improvements designed to make an area usable for human habitation when EXHIBIT B 000 016 Tom Smith November 20 Page 2 , 1985 such use is not permitted by applicable provisions of the Code.However, the question is what provision of the Code states that the proposed uses of the room on top of the garage are not permitted.I can find no prohibition any- where in the Code for the use of this space for the purposes which I have outlined above. At any rate, I have reviewed the Land Use Code and cannot find any reference to a prohibition on heating a garage or making any accessory building "habitable space." The Land Usu Code does not even use the term "habitable space"--that is a U.B.C. term used in connection with specifying ceiling heights and room sizes for such space.The Land Use Code sections which may have relevance to the issue are as follows: 1. 5 3-3.1(a) allows in R-30 a single family dwelling of five bedrooms or less. 2. 5 20-1 defines "Dwelling, One Family" as a de- tached principal building used as dwelling exclusively by one family as an independent living unit. 3. 5 3-3.27 allows accessory buildings and uses within the R-30 Zone. 4. 5 20-1 defines "Accessory Buildings and Uses" as a subordinate building or use customarily incidental to the principal building or use. In this case, a recreation room or a kids' playroom, a home office, a studio, or a workroom, all of which uses are being contemplated for this space at the. present time, are acces- sory uses since all of those types of uses are commonly found in conjunction with a single family residence and are, therefore, "customarily incident to"a residence.The F.A.R. in the R-30 Zone is .13.My Lot 13 is 35,510 square feet, allowing a total floor area of 4616.The floor area of the main house is approximately 1700+ square feet and the garage is anocher 400 square feet or so.In any event, all buildings, together, are well below the allowed F.A.R. At the time of the initial permit, there was a problem with the height limit on the garage since we had not attached the garage directly to the house, and, it was therefor de- termined by the Building Department to be an "accessory building."The height limit of an accessory building at the peak is 17 feet, instead of the normal 28-foot height limit U 4. 3 Lk L .16 d Tom Smith November 20, 1985 Page 3 for a principal building. Although the garage is very close to the house and could have been attached, to do so would have blocked the sunlight to the dining room. Therefore, we moved the garage about ten feet to the south.As a result, we undertook the extra excavation costs to dig the garage about three feet into the ground and changed the roof pitch so that the roof would comply with the 17-foot accessory building height limit. I would appreciate your review of this situation and advice to me of whether or not there are any further requirements that I need to comply with in order to finish and utilize this room above the garage. Very truly yours, C O PY 9&:no'Ird Z, Jr, Joseph E. Edwards JEE mk Enclosure , .., n o 1 KhL· 30 .4. C j 2-3, / 11-: ,«'f- 441,„' Lh#· ,,A36-14 - A--«-O /ft.t''A/·(-1....4 , 1 / ./6--4: <90 - \ .11#V/lt„a#*145 A 1/ - f 1 W r , .so,i. .../I<14-0 41-71·:-,-t,4.·' .02 3, 4. -r.C : - ,-1, b l-JAA A A-/1 -'O*-·0(24-,t_-LA..J)CL-4 1 I ;I J /1. -' 1 g -3//c * .2........7 --,u.16 54('- 1.L LL,A U 9- t 922'a- r.2» ,*0•,*U: 0-Ie<L'FbiLLA·.·u; 22,67/241# _-_«22&6_.,4,, .,14 -,tw'c 6.-b / 22(c- 1.£,- b- #-t- 1 1-L_Jij.=Cr= 67,«u -01-0-f,Aft.1 6-i Ll 0 /1 .--6=7. 6£ ._U 1-/ 'A«-t'.1 hu Ly.a L:. 2.. . 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L ) 4 u 4 2 J PITKIN COUNTY BOARD OF ADJUSTMENT REGULAR MEETING JANUARY 28, 1986 MEMBERS PRESENT:Joe Zanin, Acting Chairman Bill Lukes ALTERNATES:Spero Niarhos Kandi Shaffran Bob Throm Peter Dobrovolny Evan Gull Bill Mason called the meeting to order.He questioned if the members had any questions or comments on the October 15, 1985, and December 17, 1985, minutes received in the mail.Zanin moved to accept the minutes as typed and Shaffran second the motion. A vote was taken and all approved. Mason announced that he gave notice to the Pitkin County Commissioners that he was resigning from the Board due to the problem with the county's public liability insurance.He then turned the meeting over to Zanin.Mason read a letter to the Board from Paul Krausch, announcing that he, too, was resigning from the Board due to the insurance situation.Throm stated into the record that he felt that Pitkin County and the Commissioners should give Mason the highest vote of thanks for his contributions to this Board and other items throughout the years. Mason stated that he appreciated everyone's dedication and work over the years and he had enjoyed it.He then excused himself from the meeting. Throm suggested that the Board briefly review the discussion with Tom Smith at the last meeting and maybe have a special meeting to go over the situation.He felt this meeting should be with Tom Smith.It was agreed that this would be arranged.Also, the Board could take this time to work toward restructuring the Board in light of the resignations. Joseph E. Edwards, Jr.86-01 Lot 13, Block 1, Aspen Highlands S/D, 0280 Glen Eagles Drive, requesting the Board of Adjustments to hear and decide his appeal, alleging that there is an error in the order, requirement, decision or refusal made by an administrative official creating an inability to obtain a building permit for improvements to his garage.Joe Edwards was there to represent himself.Edwards need an interpretation to the definition of accessory use as stated in the code.He explained that the placement of his garage was based on the placement of his house. One location would have created the need for a U like turn to get the car into the garage.By attaching the garage, it would cut off valuable sun to the house.By placing the garage as he now proposed, it allows the sun to reach the house, and allows the car more accessibility to the garage. As stated in a letter to the Board of County Commissioners dated January 7, 1986, Edwards outlined the sequence of events leading to his meeting at this time with the Board of Adjustment. Previously, Newbury had referred Edwards to Tom Smith, County Attorney for clarification to her interpretation of accessory use.According to Edwards, Smith's interpretation was that any use which you normally find within a single family residence, the principal structure, cannot be in an accessory building.Edwards felt that to substantiate the interpretation, Smith pulled out 1 the words in the definition of accessory that talk about subordinate use and incidental use, and then inflated the meaning of those words.He argued that interpretation because there is a mutual use of buildings.Also, now, he has been advised that a heated corridor would make the habitable space legal, which he felt was misrepresented to him at an earlier time. Edwards wanted to have the Board look at the interpretation of the definition of accessory use along with other interpretations that have been made.He referred to the letter of January 7, 1986, to the Board of County Commissioners and read to the Board the definition of accessory buildings as stated on page 2 of the letter.He felt the question before the Board was what does that definition mean.Edwards argued that Smith's interpretations "tripped" up when going between accessory uses, attached garages and detached garages.Edwards then referred to definitions of "subordinate", "customarily" and "incidental" as stated on Page 3 of the January 7th letter.He cited the Colorado Courts definition as stated on that same page.He quoted several sections from Rathkopf, The Law of Zoning & Planning regarding accessory uses.His readings were as follows:Pages 6, 10, 22 of the Accessory Use Section.He felt that the definition on Page 22 was directly in contradiction with Smith's interpretation.Edwards pointed out to the Board that he was below 50% of the allowable F.A.R. for the lot size that he has. He then referred to four (4) cases in the State of Colorado that have had to interpret what the definition of accessory use is. Holcolm vs City and County of Denver was about 12 dogs on the premises and the City/County was charging that was in violation because it was not an accessory use to the principal structure. The Court held that it was an accessory use and could not be prohibited.They defined accessory or incidental use as a use customarily incident to the principal use and so necessary and commonly to be expected in conjunction therewith and it cannot be supposed the ordinance was intended to prevent it. Sheridan vs Kean, they defined accessory use as customarily incident to the principal use, necessary or commonly to be expected in conjunction therewith.It cannot be supposed that the ordinance was intended to prevent it.Deemed to be permitted by implication where the ordinance is silent on a particular issue.Concept of accessory use relieves the municipality from attempting to enumerate in this statute every possible approved use.In this case, the use of trailers for a residence in an industrial zone was not accessory to the industrial zone. Board of County Commissioners vs Thompson.They defined accessory use as one subordinate to, clearly incidental to, customarily in connection with, and ordinarily located in the same lot as the principal use.They found that 60 junk cars and other miscellaneous parts was not accessory to a residence. Shumate vs Zimmerman.It held that under zoning ordinance requirement, that accessory use be clearly incidental and customary to and commonly associated with the use by right of the resident, the repair and maintenance of a stock car, maintained by a homeowner as a hobby, was a lawfully accessory use and the use of his property as a single family dwelling. Gull, for the Board's information, read from the Uniform Building Code the definition of Occupant Group M, and Group R-3.If the garage has habitable space, it then becomes a Group R-3, which then puts another dwelling unit on the lot.Edwards argued that a kitchen has to be present to create a dwelling unit and the classification only dictates the type of construction necessary. Lukes agreed that the structure would become a part of a dwelling, not a separate dwelling unit.Lukes was against looking at the use with the assumption that it may become an illegal dwelling unit. 2 Cindy Houben was there to represent the City of Aspen Planning Office and Tom Smith.She referred to a letter dated January 27, 1986, from Tom Smith to the Board members.She read to the Board the second paragraph of that letter and reaffirmed Smith's point was that it has been the practice to interpret accessory use in this way and the precedent that could be set here would be very different from actions in the past.Lukes felt it was irrelevant to worry about what label the rooms had, and did not see a problem with having habitable space in the structure. Throm did not feel there was logic in Smith's interpretation and referred to the last paragraph in the same letter.Houben explained that by connecting the residence with the garage using the corridor, it made the garage a part of the principal residence.Throm did not feel that was logical. There were no letters in file from adjacent homeowners, however, Tom Payne, an adjacent property owner was there to express his opinion.Payne pointed out that the property has three separate buildings, a principal residence, employee housing and space being occupied over the garage.His opinion was that the nature of the residence should not be changed, and giving other people the option to change the nature of their property.He felt it would be opening the code to numerous problems by deciding in Edwards favor.And the concentration of people was being increased in a single family area, which he was against. Shaffran stated that each case was judged in an individual basis and they were not setting a precedent nor changing the code. Niarhos stated the definitions of "subordinate" and "incidental" needed to be used in determining whether the studio was an accessory use to the primary residence or not.Niarhos explained that the corridor made the two structures one, where separately, they were two separate structures that people dwelled in. The action necessary for the Board to make was the interpretation of accessory use and whether or not the improvements to the upper floor of the garage are an appropriate accessory use.Shaffran questioned why the request was turned down originally when a corridor was suggested by the applicant.Newbury stated that originally there was not a corridor proposed, and if there had been the structure could have been 28' high and there could have been habitable space.Edwards stated that he had been given a different interpretation at the time of that discussion. Niarhos questioned if the Board's interpretation of accessory use would become the formal interpretation.Shaffran thought that the Planning Office would take the Board's decision under advisement because of the ambiguity of the code.Edwards stated that the Planning Office, as a result of this case, has undertaken a study to redefine, in more particularities, accessory uses and reporting their findings to the Commissioners, and probably during the next 60 to 90 days, be adopting another, more particularized definition of accessory uses.Throm did not feel that the decision of the Board on this case would be interpreted historically, they were deciding on this case and its merits only. Shaffran moved that the definition of accessory use is ambiguous and Edwards presented evidence that backed up his interpretation of accessible use, and his interpretation can stand.Throm second the motion.Shaffran, Throm, Lukes and Zanin voted in favor.Gull opposed.Majority rules and the motion passed. Lazy Glen Greenhouse and Nursery 85-28 c/o Frank LaGioa, 8465 Highway 82, Snowmass, requesting a 120' frontyard setback variance from the 200' highway setback for construction of greenhouse addition.Mr. LaGioa was there to represent himself.In September, 1985, LaGioa came before the Board to request a variance to expand his commercial business by adding to his greenhouse.At that time, he needed the additional 3 room due to over-buying.It was determined that go through GMP approval prior to the Board acting request.He received growth management exemption 1986, and was back before the Board for review of request. he would need to on his variance on January 21, his variance Resolution 86-03 grants approval of the GMP exemption with two conditions: "1) The applicant shall grant a fishing easement along the Roaring Fork River.This easement should run the length of the property and extend five feet from the high water mark; and 2) The applicant shall obtain a variance from the Board of Adjustment for construction in the 200 foot setback and expansion of a non-conforming use before any building permit is issued for this project.By its approval of this GMP exemption, the Commission is making no statement whatsoever in favor of either of these requests. The Commission does wish to state for the record that it finds that the use of the site is over- extended, but given the zoning in the area, a location for this use needs to be maintained." The Board discussed the fact that even though the Planning & Zoning Commission had granted GMP exemption, the Board of Adjustment did not have to grant his request for a variance and acknowledged the fact that P&Z feels that the site is over- extended.LaGioa pointed out to the members that he was, and had been, striving to clean up that area, and the physical site made it difficult to handle the problem. Shaffran was pleased with the proposed placement of the addition, feeling that it would be hardly noticeable from the road. Niarhos questioned if the greenhouse would be made accessible by the public.LaGioa stated that it was not intended for public use.Because of the heating situation, it would have to be tied into the main business.There was no other location on the property that this addition could be placed due to various reasons, Shaffran moved to grant the variance request due to the irregular shape of the lot and the Board does not feel that the proposed addition creates a greater impact on the 200' highway setback. Throm second the motion.A vote was taken and all were in favor. The motion passed. Mr. Jay Kuhne 86-02 27239 E. Highway 82, Aspen, requesting a 80' frontyard setback variance and an 10' sideyard setback variance on the north side for an addition to the residence.Steve Conger and Rod Dyer were there to represent the owners.Conger explained that the present structure was old and below building standards and the owner wanted to make improvements.The original setbacks in the AF-1 zone was 75' for the frontyard for residential.The current setback is 100'.Conger was also requesting a variance for a proposed swimming pool that was drawn on the plot plan. Lukes questioned if a variance was necessary for a swimming pool at grade.Newbury stated it was because it went below grade, as a foundation and was required to be within the setbacks. Shaffran thought the proposed location for the pool was safer than locating the pool in the rear of the property under a power line. The proposed addition to the house that encroached would not have encroached under the original setback requirements.Dobrovolny questioned why the addition could not happen somewhere within the current setbacks.Conger explained that the owner needed a bath in that area.He pointed out a deck that was close to the property line to the side that would be removed during the remodel.Newbury advised the Board that the guest house was a pre-existing use and grandfathered in when the zoning was changed in that area, making it an allowable use at this time. 4 .. Lukes moved to grant the variance request for a 25' frontyard variance and the small amount necessary on the sideyard as shown on the site plan introduced into the record for the addition to the house and the two-car garage due to downzoning.Gull second the motion.A vote was taken and all were in favor. 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