HomeMy WebLinkAboutpitkin.boa.81.40
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RESOLUTION OF THE BOARD OF ADJUSTMENT
OF PITKIN COUNTY, COLOADO
No. ~ I -~/U
WHEREAS, the Board at its regular and continued meetings held
September 29 and 30, 1981, did consider the application of Robin Molny
on behalf of David Grusin ("Owner") concerning Lot 6, Block 1 of the
Red Mountain Ranch Subdivision, Pitkin Coun*_y, Colorado ("Lot"). THE
BOARD DOES FIND:
1. The Lot lies within the R-30 zoning district. Title II Section
3-2 of the Pitkin County Code (Land Use Code) establishes minimum side
and rear yard setbacks of 15 and 20 feet respectively iz said zone.
2. The Lot is irregularly shaped with six sides (see attached
sketch). The Owner applied for and was denied an application for a
single family home on the site because an exterior deck was proposed
which came within 15 feet of the property boundary shown as C-D on the
attached sketch. The permit was denied by the building inspector
because of her determination that lot line C-D was the rear (rather
than a side) lot line and the structure violated the 20 foot setback
requirement.
3. C.R.S. 1973, Sections 30-28-118(1)(a) and (2)(a) provide (in
part) as follows:
"(1)(a) Appeals to the board of adjustment may be taken
by any person aggrieved by his inability to obtain a
building permit or by the decision of any administrative
' officer or agency based upon or made in the course of the
administration or enforcement of the provisions of the zoning
resolution. * * * The time within which such appeal
shall be made, and the form or other procedure relating
thereto, shall be as specified in the general rules provided
by the board of county commissioners to govern the procedure
adopted by such board.
(2) Upon appeals the board of adjustment has the following
powers:
(a) To hear and decide appeals where it is alleged
by the applicant that there is error in any order,
requirement, decision, or refusal made by an
administrative official or agency based on or
made in the enforcement of the zoning resolution."
4. Title II, Sections 16-1 and 16-1.1 of the Pitkin County Code
(Land Use Code) provide:
"16-1 Powers and Duties
The Eoard of Adjustment shall have the following powers
and duties....
16-1.1 To hear and decide appeals where it is alleged
by the applicant that there is error in any order,
- 1 -
requirement, decisioxi or refusal made by an administrative
official or agency based on or made in the enforcement
of zone district regulations."
5. Title II, Section 16-2 of the Pitkin County Code (Land Use
Code) establishes procedures to be followed with respect to such
appeals, all of which have been complied with.
6. The Pitkin County Land Use Code contains no definition of
rear lot line which would control in any interpretation. The Board,
in reviewing this application, has considered that:
(a) The lot has an unusual shape and does not easily lend itself
to identification of rear and side lot lines.
(b) A large part of the area of the Lot lies south of C-D
and reliance on line C-D as the rear lot line may
result in unanticipated constraints on site development.
(c) Line E-F is the southern most boundary of the Lot and
directly opposit and approximately parallel to line
A-B which is defined as the front lot line. (For purposes
of necessary front yard setback, the access side of
the lot shall be considered the front yard -- see Section
3-2) .
(d) The parties most affected by the determination are Mr.
and Mrs. Dodge, owners of property adjacent to lines
C-D and D-E. Their residence lies south and east of
these lines and may be impacted by the location of the
structure. However, the Code establishes a 15 foot
minimum side yard and setback which will be complied with
here. Side yard setbacks (rather than rear yard setbacks)
are the ones most of ten .relied on to afford privacy, light
and air to adjacent property owners.
7. Given all of the above, the Board is of the opinion that line
E-F is the rear lot line of the lot and that the decision of the
building inspector should be reversed.
NOW, THEREFORE, BE IT RESOLVED by the Board of Adjustment of
Pitkin County, Coloroado, that the decision of the building inspector
be and hereby is reversed and that on further review of any building
permit applications for Lot 6 Block 1 of the Red Mountain Ranch
Subdivision that line E-F be considered as the rear lot line.
Adopted by the Pitkin County Board of Adjustment at its regular
meeting held this _' day of , 1961.
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ATTEST:
Secretary-7- ,
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Mcrmbcrs Presc~n t :.
' Same as Sept 29, 1981
•
BOARD Or ADJUST?BENT
September 30, 1981
Special Meeting
Bill ~14ason: We will readjourn the meeting that was tabled last evening,
ase 81-40, David Grusin, Lot 6, Block 1, Red Mountain Ranch. At the
request of the Board I was requested to contact the County Attorney,
to have her attend this meeting so we could get a definite ruling on
whether the Board, what authorities we have concerning this particular
case. Sandy, we held the case, the regular meeting last evening, this
case came up, the applicant is requiring for a 5 foot setback variance
on the rear south property line in order to construct a deck in front of
the living room. Red Mountain Ranch Architectural Committee limited
the allowable building area to an extreme southernly portion of the
property, that means that they pushed them into the south from the
road, Red Road, thereby severly restricting ground area available for
usual outdoor amenities and creating a hardship not of the owners
making. This morning I went and had copies made of the setback re-
quirements for the Red Mountain Ranch Homeowners Association its the
same as Robin read yesterday. His is out of a book, I don't believe
it was the recorded document, I just wanted to make sure it was the
same, and it says that it will be 20 feet on side and rear lot lines
and the Architectural Committee shall establish the setback requirement
from the front lot line for each residential lot in Red Mountain Ranch.
So their committee has their authority by the rules, by the protected
covenance, to require the setback from the front, their front setback
is off Reds Road, and I guess they are requiring 65 feet, is that it...
Robin Molny: 84 feet.
Mason: 84 feet from Reds Road pushing it out to the South. And of course
this fixes the house where it is being constructed, down closer to the
neighbors lot line. Which is in question.
Clark Smyth: They are in violation of their own convenance, I just
realized. They require a 20 foot rearyard setback and they said that
the house had to be down there, and encroached it. Aren't they
violating the convenance themselves?
Shaffran: But they say they can grant variances too.
Mason: Yea, it says they can grant variances, ?hrs. Dodge is the next
door neighbor who is objecting to it, she is not a member of the, the
property is not part of the Red Mountain Ranch Homeowners Association,
so she had no control, or not a member of that group, so she didn't
have any input in there at all. So, I just, we want, the Board, if
we had the proper authority to act on things like this or what. Is
the hardship that is created not by the applicant but by a third party,
that the applicant is actually a member of because he, they are all
members of the homeowners association.
Sandy Stuller: What is the reason for the 84 foot setback requirement?
Robin Molny: The adjacent property owner, especially, wanted it to be
building to be placed on the South side of the stand of cambel oak and
to be a low in the ground as possible, there is a special for
this lot and he had to go below the special (muffled) The whole
objective was tb make the house invisible from the Barker house.
Stuller: Is there anything unique about the lot shape?
Molny: Yes, it is in the shape of a frying pan, you might say
show you here.
(discussion)
Let me
OOOU05
Page 2 B~'d of Adjustment • Sept 30, 1981
MolnY: The lot is in the shape of a frying pan with the handle going
toward the South. The more you go towards the front the more restricted
and steep the lot becomes. This is the stand of scrub oak, this was
the limit of the cut line that the Board established for the owner,
and its 84 feet from here to here. And that cut line there and the
house sits right in there. There is the oak brush.
Stuller: I noticed some topo lines on the south side of the property
indicating some steep grades.
MolnY: It gets steep right in there.
Stuller: Ok, does that present any limitation on development,
Mo1nY: No
Joe Edwards: LVell, it does, I'm Joe Edwards, I also represent the
Grusins and we presented this to the Red Mountain Ranch Homeowners
Board and its taken us a year and a half to get their approval. We
have had a long and sometimes, we thought futile fight with them, but
what it resulted in is that we're, this is pretty much a cliff, this
goes on further down, way on down here, it doesn't even show, and
query whether this is the rear yard or this is the rear yard and that
is one argument of construction, Patsy has construed this to be a rear-
yard. If this was, if we construed the rearyard in the real rear,
then we maybe only have a 15 feet. So thats one area of interpretation.
But the limitations that have been created is this is a very steep
embankment and they set us back behind this oakbrush so that we are
having to build a very long and narrow skinny building. We have
a building about~35 feet wide and long and skinny, And we were kinda
compelled to build that building in that manner because we had the
setback from the road that far and we couldn't go much further in
construction because of the steep embankment, So it is a limitation,
we couldn't actually build the building there, but in order to have
someplace to sit, they wanted to extend this deck, you know, a few
feet into the setback.
Mrs. Dodge: Excuse me, could I ask a question, I wasn't, I was over
there and couldn't hear. You said this is the real rear yard and this
is not the rear?
Edwards: I said that is an argument of interpretation of the code. As to
what the code means as to what a rear yard is. The real rear of this lot
the real rear is way down here.
Dodge: How could
the side this is
the rear, you then
the rear. On what
that this could be
this be construed as the side or rear, Say this is
the side and this is the front. Then, and this is
have a choice of either calling this the side or
logical grounds would a definite statement be made
construed as a side?
Edwards: By the fact that this is the rearmost. The one is the back
and one isn't the back. I mean, suppose there was another notch in here,
would you call that a rear, I mean, in effect, this is a notch...
Dodge: Yes, but would you call this a side?
Edwards: Well, I think.....
Dodge: I mean, this is unusual...
Edwards: It is, it
to interpretation.
is really the rear.
and the lot came on
this is the rear an
what point and time
wc~ have a real rear
is, thats what, what I'm saying is that its subject
I mean how big does a notch be before you say this
I mean, clearly if this notch was only this wide
down like this then we would say, well. clearly
3 this is ,just a little notch in the lot line. Now
do you begin to say, well, we have two rear yards,
and than we have ;;et: a half rear,
Dodge: Well another legal point would be ghat this is a line thats called
affront because its on Red Roads and this is where you enter from, and
anything parallel to this is called the rear, That is another legal
point.
~Q~UQ~
Page 3
Board of Adjustment
Edwards: You know, there is all kinds of ways ,,,,
discussion
Sept, 30, 1981
Dodge: So the only rear would be this kind of little peice here. Thats
what your maintaining.
Edwards: I'm not maintaining that, I'm saying that its subject to
possible argument either way. And I'm not taking that position at this
point and time I'm just saying it is an area of, you know, potential
argument or anybody could get into litigation ....
Dodge: I'm sorry, I was told that in the beginning part of the problem
was that it had been interpreted, since you were the lawyer you were
giving the legal advice, that this was a sideline, in fact Robin very
nicely apologized to record his mistake (muffled) thats all (muffled)
I assumed then you had given this legal advice.
Edwards: You assumed incorrectly.
Dodge: Oh I see, I didn't know who then maintained that this was
the side and therefore there had been a mistake made originally.
Molny: The mistake was made based on the fact that I thought the deck
could cross over the setback (muffled)
Bill Lukes: Could we review, for a second Bill, the exact numbers
that are involved? As I understnand it, the County would require 15 feet
sideyard setback and a 20 foot rearyard setback.
(discussion)
Mason: That is correct.
Lukes: The homeowners association requires a 20 foot sideyard and rear
yard setback and how close to the property line are you proposing to
put the house including the deck? How close to the property line?
Molny: 15 feet
Lukes: 15feet. I thought we were looking at more like 8 feet or 10
feet.
(discussion)
Mason: The application says five feet, the application....
Smyth: Didn't you say yesterday that the deck extends 8 feet beyond the
line, didn't .you measure it?
MolnY: I didn't measure it because I didn't have a stairway, but we are
going for 5 foot setback...
Smyth: You mean 5 foot instrusion into the zoning,,,,,
Mason: On this one here he has 20 setback variance, showing, 15 foot here
and 15 foot here.
(discussion)
Mason: Well Joe, you could very well, you might get, you see lots of lots
with very funny shapes, suppose the road was up here on Lot 6, suppose the
road was up here, this could be considered the front, but consider the
bottom down there the bottom part so I mean, just because the lot turns
on the side, thats a technical point, as Joe says, it has.,.
Smy~t:h: Well. what if i.t is tri.anE;le, Patsy; would that be a side yard or
a rear yard?
(discussion)
Newbury: You mean triangular?
000007
Page 4 Board of Adjustment
Smyth: No, if it were a 45 degree angle,
of lots..
Sept 30, 1981
I mean, you got a lot
Edwards: Well, it is a little angle, its not exactly parallel to
the street, if you brought the street down here, you do have an angle.
Mo_ lny: Can I comment on that?
Edwards: Sure.
biolnY: There is a triangular lot in the city, its a triangle, it has
3 sides and there is no rear yard. There is two side yards and a front
yard.
Stuller: Is it relevant whether or not if the sideyard or backyard or
does he need a variance in either case.?
Edwards: No, if it is a sideyard they don't need a variance, because
t e~i n they are within 15.
Lukes: But, in spite of the occasionally contradictory information, we
have found a 5 foot variance is what your asking for.
Molny: That is correct.
Edwards: If its construed as a rear yard, if it is not construed as
a rear yard then we don't need a variance at all.
Michael Dodge: Is there anything about the angles, like if it is less
than 45 degrees or more than 45 degrees in relation to the frontyard?
Front angle?
(discussion)
Mo- lnY: The code is silent on it, it doesn't say,
Mason: Under a natural city lot you have to think of it parallel wouldn't
you. Think of a rectangle, 30 feet by 100 feet, but in the County and in
many subdivisions ycu run into irregular shaped lots, But the one way
of showing it would be the front, the front has to be defined by the
actual roadway, by where they take their access, thats what County says,
right Patsy? ~Nhere ever they take their entrance is the front, so the
front has a reason to be a front, but the other ones, either/or,
Newbury: A rear yard, A yard extending the full width of the lot,
the depth of which is measured in the least horizontal distance be-
tween the rear lot line and the nearest line or point of the main building,
such depth being referred to as the rear yard setback
(discussion)
Molny: Everyone has got to acknowledge it is a weird shape lot.
(discussion)
Newbury: A yard extending the full width of the lot, the
depth of which is measured in the least horizontal distance between the
rear lot line and the nearest line or point of the main building, such
distance being referred to as the rear yard setback,
Lukes: Is the rear lot line defined in the code?
Newbury: Thats the best thing I got.
Stuller: Ok, so they take the line closest to the improvement and they
define that as being your lot line for all practical reasons. So that
line has to be defined that way,
(discussion)
Shaffran: At the closest point. This goes way down and this must
be closer, see but that continues on, right?
000008
Page 5
~Toard of Adjustment ~ Sept 30, 1981
Mason: This continues on past the .....
(discussion)
Dodge: This is much closer than this, this is way down here, This one
goes over a few feet beyond this ...
Stuller: Where are you reading from?
Newbury; 235, Sandy.
Mason: Now here you have to be looking at the side lot line. What
line did you look at on the side there from where the building comes
down to the line that runs down to the... You consider that a side
yard. ,
Newbury: Thats a sideyard.
Dodge: Didn't you say the main part of the house? It had something
to do with the main part of the house.
Stuller: Ok, yea....
Edwards: the point of the main building.
Stuller: To constitute a rear yard it has to extend the full width
of the lot. Thats the first criteria. The measurement iswhen you
take into consideration the location and the greatest horizontal
difference, so we aren't really concerned about measuring it, we're
concerned about defining it. It defines the rear yard to be the
yard extending the full width of the lot.
Lukes: Would that
i~ This is the
Smyth: It would h
you could cut off,
part of that.
(discussion)
Edwards: Well its
here, that doesn't
mean that you don't, both lines or its from this
first imaginary line that extends the full width.
~.ve to be both then, wouldn't it? I mean otherwise
this lot started up here you could cut off a major
gotta go the full width so we gonna cut him off
make alot of sense either.
Stuller: As I understand it, the issue that created the problem yesterday
was that you felt the hardship was created by the directive of the
homeowners association and you wondered whether or not that such a
hardship was in your to remedy, is that right?
;dason: That is right.
Stuller: Well, its not, but, I think there may be other grounds to
grant the variance basically, the shape of the property, which is unusual,
exceptional narrowness here, you could also authorize variances when
you have exceptional topographic conditions, which you do have.
Newbury: We don't have that.
Stuller: You don't. Thats not on the.....
(discussion)
Stuller: Alright, then there is a third one, having to do with physical
characteristics or conditions of the lot. If you want to recognize
the trees as being a limitation on development therefore accommodate
the development, compensate for that limitation to permit a variance,,
there is an area of hardship there.
Edwards: We would advance the argument, Sandy, that it is a condition
on this piece of property, that that condition has been placed there by
the action of the Iomeowners Association after a year and a half of
hearing negotiations and it is now a condition and we, you know, we will
not be able to get around that condition and the language of
OQUUU9
Page 6 B~d of Adjustment ~ Sept 30, 1981
(cont)
Section 16-1.3 says that whereby reason of a condition of such
piece of property not created by the applicant, then it goes on
to say that this Board can grant a variance. So we would argue
that that is a condition on this piece of property, or condition of
this piece of property that wasn't created by the applicant, that we
are argued long and strenously to be able to build something besides
a long and skinny house, they didn't want to build a long and skinny
house, it looks like a trailor up there almost, and Robin had this
fancy design of, you know, multi level and he was going back when the
oak brush died and it got a lot closer to the roadway. And they placed
a condition on the lot that it had to be behind the oakbrush and that
mandated this long, skinny house and that is a condition of the lot
that we are working with, so we would argue that it is a condition of
the lot not created by the applicant and a condition within which we
have to operate and therefore request you, this Board to grant a
5 foot variance to the rear yard setback.
Dodge: May I say something?
Stuller: Just let me respond to this. I would acknowledge that the
word condition is very broad, but I think you have to take Joe's argument
and in two ways; first of all, this condition, I think, has to
be related to the shape of the property or some physical characteristic
of it. Secondly, I don't think we can accept the proposition that the
conditions imposed by other agencies can be grounds for variances. I
think that the idea here was that there has to be something adherent
and that the lot shape or the characteristics of the property that
dictate the variance, not necessarily mandates from other fundamental,
or other pseudo-fundamental agencies that might impact the development,
otherwise we would be in a position where you would have to grant
variances from zoning regulations because of actions from other entities
that don't have the status of law. And that you need not necessarily
have to defer to.
Edwards: I wouldn't say that they have to, Sandy, but they would, we were
just determining the question of whether they have the authority to,
not whether they have to.
Stuller: Right, but if someone establishes grounds for a variance, and
they don't get it, they almost have it as a matter of right. If they
fall within what 16-1.3 says the Board would have to, if they meet
the criteria, its very hard to deny the variance, and still not
appear to be abitrary and have it over ridden.
Edwards: ~9e11, it does say, though, where by exceptional narrowness
and then go on to say conditions. `
Stuller: Thats what I'm saying, that this condition relates to some
physical feature or to the shape of the property. The argument, you think
may be for you, is that the shape of the property does not conform with
the lot line, it conforms with other conditions or development. And
thats the argument that their making, which I think brings you into the
realm of discussion. I think they have established the right to
make the application. (muffled)
Lukes: The thing that kind of comes to mind is that in a lot of ways
this is related to the solar access that we were talking about yesterday
and that just because the lot or development has the characteristics
of narrowness or steepness or vegetation and so on and so forth, does
not mean that, in my mind, that a variance is appropriate, In this
particular lot, the steepness of the lot is something that, or the ,
narrowness of the lot is something that the house should be moved away
from rather than being forced into, the narrowness of the lot is not
a factor as is the steepness of the lot, where the buildable area
if they built in the buildable area of the lot they would not need a
variance and its not like the steepness of the lot is up in this area
OOOOiO
Page 7 Board of Adjustment Sept 30, 1981
and we are trying to get the house away from it. As is typically
the case.
Shaffran: But, you see they bought the house and was encumbered''"by
what Red Mountain Ranch Homeowners dictates, by, I mean you have
to decide whether thats legal but, you know, they bought encumbered
by Red rountain Ranch Homeowners convenance,
Smyth: Thats like being encumbered by a 20 foot setback too.
Mason: A 20 foot setback, but they also buy, I think, I don't know,
muffled) but as far as not having an open ended front line they can
change anyone they want to.
Stuller: Does any of this relate to the creation of solar elements
in the structure?
MolnY: rro.
Mason: Yes, Mrs. Dodge.
Mrs. Dodge: The lot, I wish you could go up and see it.,..
Shaffran: I've been up there
Dodge: It's a beautiful flat area and we have planted fifty trees
on our land, they grow very fast and I know that Mr. Barker, I don't
know if he planted his aspens, but they grow very fast, and the fact
that they have a few scrub oak could not really, I don't thin Y,, (muffled)
really the best site is on the flat towards Reds Road, and that the
steepness that you've encountered is because your being pushed out
off the good building site. It's an excellent building site,
iviolny: May I read from an excerpt from a letter that we wrote the
Board. Red r.4ountain Ranch Homeowners Association, Dear Board ".Iembers,
David Grusin and Steve Philip and I have reluctantly come to the
conclusion that the location in which we have historically considered
to be the most desirable for their new residence is no longer acceptable.
Following are the reasons (muffled) I just conclude. This is after
many meetings with them and I'll skip some of it. Two. The reduction
of buildable area in the lot caused by the location of the vegetation,
cotton wood trees and oak brush. Four, The confininP and very peculiar
shape of the lot. This is all by way of the fact that they had already
told us they wanted to put the house where they ended up putting the
house. It has become apparent that the only areas viable for the
Grusins or for that matter any other prospected construction, is
further to the North and the flatter portion of the site, probably
toward the West of the property line. This means that some of the
exhisting oak brush will be sacraficed to clear a building site. This
letter represents a formal request made on behalf of David Grusin and
Stevie Phillips that the Red Mountain Ranch Iomeowners Association
grant conceptional approval to this proposed change in location. We
did our level best to put the house where it should go, We were
denied that right by the Board acting under the a~xthority of their
recorded convenance.
Newbury: Did you know that their convenance say that they will stay
within the Pitkin County Zoning Resolution?
MolnY: I never read that.
IQewbury: Its recorded at, under 224 at page 347, but I couldn't make
a copy of it.
Edwards:Well, I can see, we argued long and hard against that, with
respect to pushing us over against the edge, but they weren't about
to budge. This is a big stand of oak trees, and its right about in
Lhe middle oC the lot, you can kind of sec from the map hard. And
it sits right in here and it does totally block Trom Jack Barkers
and, who is the other architect?
h4ol.ny: Dave Ilopkins.
~~~~11
Page 8 ~ard of Adjustment • Sept 30, 1981
Edwards: Dave Hopkins house. The oak brush will block the residence,
they will not be able to see it. And, you know, were we to build over
here, they would be looking out over their front lots right at the
side of the house, there is no question about it. And by moving us
Further away from the road and back behind the oak brush, they increased
their site line of the lights of Aspen at night. And, you know, from
their stand point, I could see why they wanted to do it, and its been
a real problem for the Grusins because, you know, we would just as
soon cut the oak brush down and built the house over there, but we are
now a year and a half into the fight and I can tell you that they are
not going to budge and we are kinda caught in the middle of it and you
know, I walked the property myself many times and it might even serve
the Board to go take a look at it, because I tell you, this is all
oak brush in here and it falls away fairly steeply and I can't imagine
five feet of deck, I tell you its not even going to be visible by
the Dodges, its not. And you'll see that if you go to the site yourself.
Its just not going to make any difference to them. Its a long, long
way from their place.
Dodge: I don't think you are aware of the fact that my son is planning
to build an art studio on our property, on the only site available behind
the house. He wants to get as far away from the house as possible and
this is the point that it doesn't have anything to with us and the
structure that is there now, the point that we've been considering is
this other structure. And secondly, I don't think it is, this house
is a very expensive house, its a very lovely house, and I don't think
the question of planting trees versus tearing down scrub oak is really
(muffled).
Stuller: Could we go on to the second requirement that has to be
satisfied and thats demonstration of hardship, Plhats the hardship
on the applicant by not being able to build the deck?
Molny: It keeps the applicant from enjoying the rights that the
adjacent property owners have. In my opinion, everybody in Red
Mountain has and decks and thats one of the features of living
up there. And the outdoor experience would be denied (muffled)
Stuller: {Nhat, now there is a fully developed single family home
on the site, is that correct?
Molny: No
Stuller: There is nothing?
Molny: There is just a hole.
Stuller: But you could build a single family home without a deck?
(discussion)
Krausch: When the solar thing was changed
requirements - when necessary to preserve
solar orientation - it occurred to me that
if there is a hardship demonstrated that a
on that basis.
Variations in yard
existing vegetation or
there may be the possibility
variance could be granted
Stuller: Isn't that the authority to the P & Z?
Krausch: Yea P & Z. The other thing that I wondered about when I
went through this, I wondered about what is the responsibility of this
Board regarding adjoining property owners, what are the rights of
adjoining property owners. The only thing I found was a written notice
shall be sent. What is our responsibity to adjoining property owners.
There is nothing spelt out that I could find.
Stuller: You have, really, no responsibilities to them accept to allow
them to be heard. If,the notice is given to them in order to argue
against grounds for variance that are specified at a Board of Adjustment.
Not necessarily you have a role to protect their property interest, but
as merely to afford them an opportunity to argue before. you that an
applicant dues not meet the requirements of the code for the granting of
a variance.
000012
Page 9 ~oard of Adjustment ~ Sept 30, 1951
Stuller: Paul, with respect to that P & Z review, you are absolutely
right, perhaps this is the type of application that is more appropriately
brought before them.
Edwards: The other thing of what I'm saying, is that where the application
zoning regulations resolve in peculiar and exceptional practical difficulties
or exceptional and undue hardship and we feel that it would be peculiar
and exceptional that we have to build a trailer up there and then
we can't even put a deck on the outside so that somebody can walk out. And
that is peculiar not have a deck, that you got to have a long
skinny house and can't even go outside of it. And, it is exceptional
practical difficulties for us not to be able to, you know, we have exceptiona:
practical difficulties in trying to build a long, skinny house within
the confines that we are, we have described to you.
Smyth: I would like to add something here, just that I've noticed. First
of all, just tb, I guess to respond to Joe's point, cut out a 6 foot deck,
you want a deck, thats nice, you got a deck up here with a hot
tub, you got a deck down here.. You have got all this flat area ih here
which could be enjoyed by the outside. I'm not sure that there is then
much of an argument or even a hardship at all. Second point is, I still
think that we are being put in a position, because of Red Mountain Ranch
Homeowners Association, of authorizing a variance when maybe they should
be the ones authorizing the variant. They don't want to see the house,
they push it down there. If we represent the County from down below
because it is pushed down and elongated, there is going to be more
impact from down below than from up above, and maybe, you know, it
goes as long as the intended zoning is not violated or the impact,
you know, maybe we have to look at that. There is a greater impact
on everybody else than everybody else in town than the Red Mountain
Ranch Homeowners Association.
Edwards: I think, you probably would be served by looking at the site
because I think you will notice that due to the steepness of the grade
that studio or no, they are not going to be building anywhere close
to this house. Just given the fact that it is a hillside, I mean
literally a cliff almost right behind that house, the art studio, if
it ever gets built is not going to be visible from this deck, even
if you put it right on the property line you won't be able to see it.
Smyth: I'll buy that also, but again I come back to,..I agree with
that, but again I come back to the fact, if it wasn't for the Red `4ountain
Homeowners Association, who are being arbitrary, it could be slid up
a little bit.
Krausch: Is it true, is it fair to say Sandy, that if it came down to
who was going to win the argument between Red Mountain Homeowners Association
and the County, the County is going to win, however, the facts of life
are the foundation, that is to say, $20,0000 worth of excavation has been
done. If that hadn't been done, I think we could force the Red P.4ountain
Homeowners Association to backtrack five feet, but the $20,000 spent
excavating the hole....
Smyth: But that is irrelevant, they should have come into us before,
Stuller: Remember, he is not going to lose the value of the $20,000
or whatever he put in to building the hole, the question of constructing
the house is shot an issue, its only the deck and the rear,
Edwards: If you look at a model of the house and you rip that deck offthe fron
its going to look like a piece of crap, architecturally (muffled)
Dodge: But its like you said, nobody will see it.
Edwards: They will see it, you won't see it,
(discussion)
Dod~,e: We'71 see the huuse, if you would go up and see where the studio
will be built, you will see it. It's not just sight its sound and noise
and the further bcick yuu ~;et the better it is, whether its 5 feet, 10 feet
15 feet, whatever, but thats why they have 20 foot setbacks,.,
Mol.ny: I'll respond to that the way I responded yesterday, and I think
~(lnnf~
Page 10 Board of Adjustment Sept 30, 1981
its a very important point, the deck we are seeking a variance for is
here, there is a deck which is much closer to Dodge's house but
within the setback lines, so I guess my point is that, if the people
that live in this house are noise makers, of course they are not,
but, they have the opportunity to make noise off of this deck much
more readily than this.
Michael Dodge: Not necessarily closer to the studio. The studio
could be in a different place than the house.
Dodge: Our house is not here, our house is over further to the side,
That is not a relevant argument and it is not true because we are
nearer to this area than we are to this area, If anybody has a
building on top of their house, I looked at it today, our shape
is like that and not in the center but over there. And anyway
if we could protest any noise we would. I'm sorry, we just wanted
the County regulations to be followed, thats all.
Lukes: The problem that I have with this is not only the County but
also the Red Mountain Ranch Homeowners Association has a 2~ foot rear-
yard setback and they are forcing the Grusins into a situation of
violating that and we are talking about 5 feet, we've quantified
that, and to me a five foot change in siting this house had not the
excavation been performed already would not have made a qualitative
difference to the Red Mountain Ranch people.
Molny: Yes it would have,
Lukes: Well, it would have in their judgement, but it would not have
made a fundamental, qualitative change, it would not have obliterated
the landscape, it would not have obliterated the scrub oak,
Molny: No, not obliterated. They got into a position where they almost
entered litigation internally because the people who were against the
placement of this house the way it is now almost litigated against the
people who outvoted them, I mean its just been a mess up there and any
talk of moving the house back five feet is impossible, I'm sorry but
its this way.
Lukes: Well, no you have already established that, but the problem again
is the one of the actions of the Red Mountain Ranch Homeowners Association
almost forcing the County Board of Adjustment to provide a variance. To
me thats very problematical.
Molny: Well, there are problems on this side which the Red Mountain
owners used as grounds for making us pushed the house forward, mainly
the stand of scrub oak, the highest of which are 14+ feet and the
question of grounds, it seems to me, for a variance, it seems to me that
if it is acceptable to Joe, that we can change the grounds for appealing
for a variance, all we are doing is....
Krausch: I don't think any question with the Board and I
understand (muffled) with the variance, What is the problem is the
question of whether the Board wants to or not.
Mason: Do to the irregular shape of the ,...,
Stuller: Remember you've got two criteria that you have to meet, first
of all what re .. you have to look the reasons that created the problems
they must relate to the shape of the property or some physical conditions
respective to the site. This is obviously an unique shape and you do
have some limitations on development created by the fact that there are
scrub oak there. And then you have, and this is the second and harder
requirement in this case, you have to demostrate real hardship here.
Edwards: Not necessarily Sandy,
Stuller: IVill practical difficulties or .,,,
Edwards: Peculiar and exceptional practical difficulties or ..,
Stuller: Right, to develope the property in a beneficial way and I would
suggest that he is getting adequate beneficial use of that property with
~~~~1~
Page 11 ~ard of Adjustment • Sept 30, 1981
the development as proposed, without a third deck.
M~o~ln~ This is the main deck, the other decks are just to
this deck.
Shaffran: I looked at the site and (muffled) I did look at it and
it does drop off quite a bit and it does look quite small, so I can
see their point (muffled)
Stuller; But do you think that the enjoyment of that property would
require the construction of a third deck?
Shaffran: Well, the view is real pretty from there, and I just
figured if you have a deck above the trees then you could look ouY
and have a very nice view plain....
Stuller: Well 't hats the type of thing you should be interested in.
Krausch: This is a deck as well, Robin'?
Molny: That is correct.
Dodge: Could I point out that I would like to ask why this building site
would fall under the definition of a hardship site because its a large
flat area which is completely buildable, why would this then, therefore,
because its being shoved down over the brink, is being called a hardship
site but actually its not, how can legally it be called a hardship site
because of a stand of scrub oak, when trees grow very fast, the lot
across the way is planted heavily with trees and has demostrated that
they grow fast and that really cost wise it doesn't cost that much
to plant them.
Krausch: I would think, !~4rs. Dodge, as a response to that, that my
response would be that if it were my lot, and I had been forced by
the local covenance to build to the extreme south, north side and
south side of the lot by local covenanca, and to build a long and
narrow house, which was not my original choice I would feel that some
hardship has been inflicted upon me, I would feel I've been caught
in the middle between the County and the local covenance.
Dodge: But the house is 30 feet wide isn't it?
Krausch: Well, we already heard that the architect and the owner originally
planned a different style and now the house is being resized and...
Dodge: What I'm talking about is the building site for a logical house,
I'm just asking Sandy as a lawyer, could this be designated as a hardship
site.
Stuller: As I said before, what I'm suggesting is that the Board would
have to be satisfied itself that either the shape of the lot or some
natural features on the property that created, have created for the
applicant either a hardship or practical difficulties such that he
should be relieved from the impact of the zoning reffulations, I'm hard
pressed to believe that a setback imposed by a homeowners association
is enough because, as I said before, you can't put yourself in a position
here you are required to grant variances because the conditions imposed
~by other entities. The law says, shape of the property or physical feature
of it and if those exist and you think they result in practical difficulties
or make hardships then a variance, I think, should follow as a matter of
right.
Mason: The shape of the lot and the topographical thug, knowing the '
property and where it drops off and everything, actually exists, but the,
we are being forced into, forced into that by a third entity, not
by the actual shape of the lot at the actual time.
Lukes: The narrowness of the lot and the ....
Mason: 'Phc roadway is here and so I wouldn't have any qualms at all about
it being down there..,
Lukes: Right, but in fact the steepness of the site and the narrowness
of the site are within the setback areas, not in fact within the buildable
QQ~~~~J
Page 12 • Board of Adjustment • Sept 30, 1981
areas so we are not granting the variance to relieve them from those
problems. Those problems were created, the buildable area, within the
setback area is in Pact, quite buildable and does not impose a hard-
ship at all. Thats the problem that I have with this, so it really
does come down to the hardship created by the Red Mountain Ranch
Homeowners Association. Rather than the site.
Dodge: And that they are actually, the homeowners association is going
against their own covenance of the stipulation of the 20 foot setback
and the people involved in this case, were their legal advisors were
not aware of this when they dealt with the homeowners, I don't think
that we should be victims of their lack of knowledge of what legal
points in which to oppose the homeowners successfully,
Edwards: The homeowners granted a variance from their own setback
covenance by reason of the topography and approved the house siting
(muffled). Thats already happened and they had the power to do that.
So their covenance is not an issue. I guess what we have here is we
have a situation where, you know, we had a long hard fight with, with
having to build the house that we really didn't want to build, Robin
had to redesign the damn thing three or four times, the architectural
fees are already about four times what the normal architectural fees
for a house like this should be.. as a result of these actions, and
we were compelled to cram it into this long, skinny place, we got
started, it is a complete architectural design, the decks, that is the
main deck, it is the main focal point of the house, it is right outside
the living room, you walk out of the living room and you walk onto
this deck and now the result is, at the last minute, a mistake or,
probably by Robin, in his conversations with Patsy, it came out that
he interpreted this to be the rear yard and therefore a five feet
encroachment into, a deck encroaching, not the building itself, but
the deck on posts encroaching five feet into this. and the building
is under construction, the excavation is made, the design is complete,
and to, you know, to allow them to extend five feet into this questionable
rear yard, I tell. you, if you go look at the site I know you will come
to the same conclusion that it will not effect the Dodges at all. They
won't be able to see that extra five feet from any potential building
site that they have. And I know you will come to that same conclusion
if you go look at the site. And so we have a request, we have a very
unusual pan-shape lot that I don't, I have never seen a lot like that,
I think its a ridiculous way to subdivide them, but that happens before
the County had appropriate subdivision regulations so I think the
County can accept some responsibility on allowing this kind of a i
weird shape lot to be created by not having a proper set of regulations
in force when this was done. Now we have a auy who is 10's of thousands
of dollars into his project and he is stuck in this narrow little
alley way and he is not going to get out of it and query can we allow
him to go five feet over this technically restricted area, which is
not going to impact anybody at all or are we going to hassle this guy
further and I think thats the decision the Board can grant, it isn't
going to hurt anybody to give them that five feet, It isn't going to
be impacting anyone. (muffled) Thats the reason this Board was
created was to balance the equities and to look at what is there and
if its a pain in the neck, if its a practical difficulty and unusual
hardship for somebody and if its creating, in the words of the code,
peculiar and exceptional practical difficulties, you guys got the
power to relieve this situation and its up to you, Grusin i.s going to
fall on his sword if this thing keeps going much longer, I mean, its
just like a, its been a nightmare to try to get going.
Smyth; Patsy, is this a standard lot or a sub-standard, area wise?
Newbury: Its a substandard up there.
Molny: Its R-30 zoned ,
Smyth: Its 30,000 square feet approximately.
Molny: I could have the model here in about 8 minutes if that would
help you,
000016
Page 13
Board of Adjustment
Sept 30, 1981
Dodge: (muffled) We don't have a lawyer here. I would like to
point to you that I don't think that the condition of (cough) for
the party involved (muffled] to make a judgement of what will impact
us and I think its up to the Board of Adjustment, secondly, we were
not discussing sight alone, we were discussing the noise impact, because
you all know (muffled) and in winter time, sound travels very swifly
and up there is very clear and the wider the deck, the closer it is,
the more people get on it, the more noise it is. There is a definite
impact from sound. And there will also be a sight impact to the studio
because it will have a north slanted roof and you can look right down
into it because the balcony is up high, its over the edge and therefore
people there will be able to look right down to it.
Mo1nY: The difference between noise generated from five feet farther
away, you would have to agree, is riinimum,
Edwards: Here is the balcony, if the noise was coming from the studio,
t- ei~peop~le on the deck would here it, but the people on the deck generating
noise are not going to be heard down in the valley (muffled)
Smyth: Robin, I have a question. What is the height here, by looking
at these elevations, it looks like about 3 feet.
Mo1nY: Pdo. The top of the railing, to the best of our evaluation on the
site, the top of the railing to the ground there is about 9 feet, its
that far.
Smyth: Even though this is on a 87 contour, that living room is at
ninety....
Molny: Here, lets do it this way. Good point. What does that say right
there, ninety-three four.
Smyth: Oh, the deck is higher than the living room.
Molny: No
Smyth: Because on this thing you've got the living room about 90.
Molny: Thats been changed.
Smyth; OK
i
MolnY: What does that say there,
Smyth: Ninety-three four
MolnY: Ok, ninety-three four and this contour...
-Smyth: Eighty seven you need three feet for the rail
Mo" lny: Eighty seven contour
Krausch: Sandy, when I read this through this morning, I had a different
interpretation and I don't pretend to be an attorney, just want to make
sure that I understand what its saying and 80103, where it says by reasons
of exceptional topographic conditions or other extraordinary and exceptional
Characteristics or conditions, you tying in or conditions back to the
previous phrase which says physical conditions. Because I didn't,
-Stuller: Yea, well, it says exceptional narrowness shallowness or shape
o- the specific piece of property or by reason of exceptional topographic
conditions or other extraordinary or exceptional physical characteristics
or condition of such piece of property not created by the applicant.
f
OUOU17
Pub{e 14
•ard of Adjustment • Sept. 30, 1981
Krausch: So you interpretate the word condition be tied back to
characteristics or condition,
Stuller: Everything else that came before it has to do with the
physical characteristics of the property.
Edwards: I think, Sandy, that you would have to concede because it
is subject to interpretation. I actually wrote that section,...
Stuller: What I'm suggesting is that if you accept the proposition
that condition means any condition imposed on anybody, whether it be
the seller of the property or the adjoining land owner, homeowners
association, that you are required to grant the variance based on..
Edwards: Not required, authorized.
Stuller: Well,' required, I think, that if you are required to grant
the variance based on those conditions imposed by other entities, then
you know, there is a discrepancy between your authority as a government
and theirs as a private entity. And what I'm suggesting is that if
they establish that they fall within the perimeters of thi:~ section,
that is that they establish it is relative to that and they, it creates
a hardship, that they are entitled to a variance as a matter of right.
And that if they were to appeal your denial, you would lose, So I'm
suggesting that if not, that it has to be read to refer to specific
characteristics of the property and not conditions imposed by private
entities because if it does then your permitting those private entities
to supercede your powers and yours must be paramount and they must
be culminative.
Krausch: I agree that a very strange situation by virture of the fact
that they did inflict this restriction on the builder who has now, and
thats the whole point as I see it, has now excavated for the construction
of the house.......
(discussion)
Smyth: Well, he is taking a chance when he did that, I don't think we
can look at it whether the building is built or not built or excavated
or not excavated, I think we have to look at it,....
Newbury: He knew exactly what he ....
Lukes: Thats one of the risks of a foundation permit, unfortunatly ~
(discussion)
Krausch: That depends on whether you enterpret the responsibility
of this Board to be absolutely hardnose or whether you want them to
be reasonable people trying to work out a compromise to the least
negative impact upon the parties involved. It seems to me that thats
as I see, our role in trying to come up with an equitable solution
to the greatest benefit and least negative effect on the parties
involved.
Stuller: Well, I would disagree with that. I don't think it is your
job to negotiate and arbitrate and solve it from development
problems per se, I think its your obligation to give them a variance
when it falls within the requirements of this section. Not necessarily
as to offset the balance of equities, because I don't think you have
that type of jurisdiction, I think you have a right and an obligation
to grant variances when someone qualifies and thats it.
Edwards: I tell you what, Sandy, I have never interpreted that this
Board had the obligation to grant a variance,
Stuller: Well, I do.
]sdward5: I interpreted as, that you had the di>cretion,
Stuller: No. You may find these based on the outline, but if these
people satisfy each one of those elements, then I think that it is a
matter of right.
~~~~~~
Page 15 • Board of Adjustment • Sept 30, 1981
Edwards: But it is a B-r-o-a-d even if when your following your
position, which I disagree with, its certainly a broad area of discretion
as to your interpretation of what is an exceptional condition, you can
construe it as I do, as a condition of the property now, caused in this
case by the Red Mountain Ranch Homeowners Association or you can construe
it the word condition to be limited only to physical. Because the
code doesn't say, and when I drafted it I didn't intend it to be stri<;tly
physical. So its now up to this Board to interpret it and if it gets
appealed to some higher court, I mean that is what courts are about.
Is interpreting what language means. But you have a broad area of
descretion to decide what is a peculiar and exceptional practical difficulty.
You make that decision.
Stuller: That is correct.
Mason: Patsy, on lot, looking at this map here, on
which do you consider the line. I consider, Lot #7
considered as a rear lot line and thats parallel wi
line, their front lines are parallel, so what would
rear line? (discussion) Because the lot line goes
it goes this way on an angle, it doesn't matter.
lot #? next door,
next door, probably
th the other lot
be considered the
this way and that,
Newbury: The 187,3 (discussion) rear lot line. Because the other lot
line angle is not at a 90 degree.
Mason: On lot 7 that is a rear lot line, (discussion)
Mason: But they aren't, but this is
thats actually rolling on the same pa
rear lot line there, the adjacent lot
it would seem like, and they have got
then it would have to be the rear lot
angle or turns some. You can't have
the adjacent, this is the one
rallel, if you consider thats the
runs on the same line with that,
a straight line inbetween them,
line, Just because the line
two rear lot lines,
MolnY: I would like to hypothesize where would be the rear lot line,
on a lot that shape, with the road going dcwn there,
Newbury: If it is not parallel to the front lot line, its not a rear
lot line.
(discussion)
Edwards: Whats parallel? You know, your roadway is running right at
that point at this angle, and this is running at this angle, the parallel
line would be like that. I think is definitely subject to interpretation
thats another interpretation that you guys can make.
Krausch: Mrs. Dodge, could you approximately point out where your house
is on this thing here?
Dodge: Our house is about half-way. I'm not very good at ...
Krausch: ido, No, this is the Red Mountain Ranch thing, see it shows
all the lots.
Dodge: But where...
Mason: On this map here.
Dodge: What do you want me to point out?
Mason: We are talking about Lot #6, where is your house, I guess its
going to be down....
Molny: Here is your property.
Dodge: Oh, I see, we're looking at this one. It would be about, I
would say right in here. And the studio is going to be right here.
Mo7ny: I think your up the hill Mrs. Dodge. I think the road that
000019
Page 16 Haard of Adjustment • Sept 30, 1981
access your property is at this line, This lot comes down and hits ;A
your road.
(discussion)
Dodge: Thats the house and the studio would be about half-way, He
has picked out the area that he wants it in.
MolnY: This is Sweeney's house, somewhere in there,
Dodge: Yea, Sweeney's is about, just about the same...
(discussion)
Mo1nY: I don't want to get into an argument but I think you are a
little higher than you are,
Dodge: Well, I don't know, I wish I had been given enough time so that
my husband could have arranged to be here. Being given three days notice
has made it quite difficult for us, I hate to handle this myself. I
don't know footages.
Smyth: I would like to say that I'm, still have a little bit of a
fundamental problem, I'm very torn by the fact that I don't think a
five foot intrusion, specially with this fifteen yard, fifteen foot
sideyard setbacks, 5 foot intrusion of something like a deck, which
is not a major structural thing, I mean, I don't think that is
really going to have any great effect. On the other hand, I am sort of
the reason I'm torn is that I almost resent the fact that the Red Pdountain
Homeowners Association with an arbitrary setback, has forced them into
this and, if they had eliminated that and moved up, which is, topographically
simple to do, easier, cost you less to build, you have so many piers
and stuff, have forced us into this.
Shaffran: They could have let them do that and then asked them to plant
a few more scrub oak in front, replace what they cut away.
Smyth: Tell you to plant Aspens or Cottenwoods trees, Spruce.
Molny: Want to here something interesting.
Mason: If you know the homeowners association or Mr. Barker,.,
Smyth: They should plant spruce, which would cover his lawn.
(discussion)
Mo1ny: Let me read to you this under the heading of trees and landscaping:
except for such cutting or altering of trees and bushes and other
natural vegetation growing on a residential lot as is necessary to construct
the building (muffled) there shall be no further cutting or altering
of trees or bushes or other natural vegetation, etc, and no further
landscaping thereof.
Shaffran: But I thought you said that they planted trees in the area.
MolnY: Well a lot of people....
(muffled)
Dodge: I don't think in court a (muffled) for scrub oak. I mean, you
have scrub oak in the middle of the property and you couldn't prevent a
fine from cutting down the property.
(discussion)
Lukes: If you don't get a variance, that portion of the deck just won't
be built.
MolnY: That is correct.
Lukes: Or maybe it would be compensated for in some other area, I wouldn;t
know.
oooo~o
Page 17
• Board of Adjustment • Sept 30, 1981
Krausch: Sandy, why does it, does it tell us why, or Patsy, either one,
w y i is necessary to obtain a variance for that particular deck. Because
it is a foundation, because its over 6 feet tall, because its part of...
Newbury: Because its part of the building and its too close to the
lot line.
Mason: And if its a side lot line..,
Newbury: I wouldn't be aproblem at all.
Krausch: Say that again Sandy, I'm sorry.
Stuller: Patsy..
Newbury: If it were a sideyard .,..
Krausch: I understand that, so why does this particular deck, if it
were a patio it wouldn't, is that true? A flat piece of cement.
Newbury: (muffled) like a driveway or whatever, no,
Krausch: What is it about this deck that requires ,,,
Newbury: Its part of the structure.
Mason: Its attached to the building.
Krausch: It isn't the height, it isn't the fact that its 9 feet, it
could be 1 foot off the ground.
Newbury: Its attached. Probably at the, where it fastens in at the
house it may not be more than 2 or 3 feet off the ground (muffled)
Stuller: If it were a patio it would not require permit,
(discussion)
S-myth: Patsy, what if this were cribbed up with railroad ties and
then you dumped dirt out there and planted grass, would those railroad
ties need a variance?
Newbury: If it's a structure, anything that is over 6 feet high
Stuller: If it were over 6 feet high it would require a permit.
Krausch: What if it were only six feet high without the railing around
it, five feet eleven and its railroad ties,.,
Newbury: If it was 6 feet, if it was 5 feet eleven it would have to
have a railing around it.
Stuller: Why didn't you go under 3-8.122 to the Planning & Zoning
Commission to ask for a variance based on the necessity to preserve
exhisting vegetation.
Molny: I didn't know I could.
Stuller: It seems that is exactly the issue here, Whether that necessity
caused by the homeowners association on their own aesthetic motivations,
thats the section that was designed to deal with it,
Dodge: Is that the only reason the homeowners did that, was to save the
scrub oak?
(discussion)
' 0000?1
Page 18 ~oard of Adjustment • Sept 30, 19A1
Mo1ny: What's your reaction to Sandy's suggestion?
Dodge: Does (muffled)
Stuller: No.
Dodge: They would just consider it on the vegetation?
Stuller: Look, there would be a second rational you could take it under,
it says when desirable for aesthetic reasons but only if the front side
and the rear yard line, from which setback of a variance requested abuts
lands preserved by covenant deed or public lawship as open space
conservation, agricultural, or forest land, you might argue that that was
open space requirement by the covenant, but anyway it seems to me that
what your basically doing is arguing policy here instead of establishing
grounds for a variance, at least on hardship. And I'm suggesting that
there is an agency that is designed to deal with exactly that,
Muffled
Krausch: Answered our policy questions.
Edwards: I think it is up to the Board to make that decision.
Stuller: Whats the policy question?
Krausch: Did I understand earlier that you said that we, if another
body imposed this, a restriction upon a party like this that we cannot
provide a variance under those circumstances.
Stuller: Yes, it would be my interpretation that the type of conditions
which you can enumerate have to be natural or resulting from the
configuration of the lot line. It cannot be the result of dictates from
other agencies that are not government, not lawful entities,
Krausch: Do we have the right to impose our judgement upon other
agencies, Sandy?
Stuller: Yes. These requirements are culminative. Any landowner
has to comply, not only with the homeowners association but the
laws of Pitkin County and you may vary from the laws of Pitkin County
only when you meet the conditions of the code. And what I'm
suggesting is that the fact there are limitations imposed by other
entities that are not recognized under the code as grounds for
variances.
Shaffran: Sandy, could we vote that this strangness between interpreting
which is severe configuration of the lot, that we could (muffled) ~
Stuller: Yea, you could consider that the lot has an exceptional shape,
and thats creating the hardship for the applicant, you know, you
in the language of the code.
Mason: In my own mind, it has an irregular shape to the lot, and the
irregular shape to the lot comes up to the discussion to the Board
of Adjustment, which do we want to call a frontyard lot line and the
rear yard lot line. And in my own mind, if there was no other lot line
down here, if this was all by itself, then it would be interpreted.
But when there is a parallel, there is a straight line running down
adjoining in lot #7, which is considered the rear lot line on the lower
part, in my own mind I would have to go along with that, in my own mind
that would be the rear lot line of the property.
Krausch: And no variance is required.
Mason: That would be my own, be my own interpretation.
Lukes: The thing that, about that, I've been thinking about that,
asically, I find this to be approximately parallel to the frontiyard
lot line.
000022
Page 19 ~oard of Adjustment • Sept 30, 1981
Newbury: Not more than 45 degrees, though.
Mason: But it isn't like iY, now there's a lot line adjacent here,
coming here like that, that would be another thing too. But there is
not, so, (discussion)
Lukes: But my second point on that is that, number one, it is
roughly parallel to the front, so it does seem to me to be, just subjectively
according to my own logic, approximately a rear lot line, secondarily,
it separates, it does separate although only partially, this lot from
another lot. And since the ...,.
Mason: THis line here separates a lot too
Lukes: Thats right, but due to the orientation of it,
Mason: It's an irregular shape lot and thats why, and ,...
Lukes: The problem I have with all of that is that wouldn't even have
come into play if this, you know, was in the Crystal River Valley or
something and the guy wanted to build a house right in the middle of
his lot, he wouldn't even have affected him because he ...
Edwards: It did, its a fact, its today's world, thats the way it
is, thats the facts we have to deal with.
Lukes: But its not intrinsic to the physical qualities of the property.
There is buildable area within the setback area,
Shaffran: Except he was pushed back here and now his only recourse really
is a, I mean, I'm not, because he was incumbered by the setback and he
was incumbered by the homeowners and he couldn't get anywhere with the
homeowners in a year and a half so now he is falling back on us for
recourse to give him some relief,
Smyth: Let me throw this out, this is just a wild idea maybe, just to
get this thing off dead center, This is a 30,000 sq ft lot, ok, R-30
so, but that pan-handle, by looking at this takes up maybe, oh, almost
half of it, there is about 17,000 sq ft in this section here, Well,
if this was 17,000 sq ft, it would then be a R-15 type zoning and we
would only have a 10 foot rearyard setback. Maybe its valid to say
that, because of that, because of the unnatural shape of the lot, that
a 20 foot rearyard setback is unreasonable and this will just cut
across here, a 10 yard, a 10 foot would be acceptable,
Newbury: Except that you have 115 feet to (muffled)
Krausch: Except that if your setback requirements are going to be based
upon this line, assuming the line is drawn straight from an usable stand-
point, it does reduce the effective use of your property,
Dodge: And therefore the Red Mountain Homeowners Association should
not inforce the 85 foot setback .,...
(discussion)
Smyth: If we approved this thing I would, I think any, I don't if we
would or not, if we did, I think any approval should be, we should file
a letter with the homeowners association saying that we think it is
reprehensible that they are forcing people to have approval that are
in violation of County regulations.
Dodge: Thats a slap on the hand that doesn't, I mean (muffled)
Smyth: Its just an idea.
Krausch: I agree with you, I think that whatever we do, out of this
ought Lo be some communication to the Red 44ountains Homeowners Association
c~~prc~ssint; our discomfurl, nt. Navin„ been put in Lhis position by them.
They ought to know that.
~~~~~~
' Page 20
~ard of Adjustment • Sept 30, 1981
Mason: Its whoever gets the cart before the horse or the horse before
the cart, whether applicant should go to the homeowners association first
whether he should come to the Board of Adjustment P.irat
(discussion)
Lukes: Well, what if this whole had been back even further and they
had said, we want you to build, we want you to build right to your
lot line, we will give you the variance, you build your house right
to your property line because we don't really care about the non-
ranch adjacent lot.
Krausch: I don't think he would have got the excavation permit.
Dodge: This is what Jack Barker told me, he didn't care how close it
came to my property.
Mason: Mr. Barker?
Dodge: elnd I think (muffle) you go along with him on that decision
muffled)
Lukes: He got an excavation permit.
Krausch: Only because he is within the lot line.
Lukes: No, excavation permits are given with the builder taking the
entire risk of conforming.
Krausch: How could they have given him an excavation permit is the
plan was to build right on the lot line when there is a 20 foot
setback.
Lukes: Well, I got one when....
(discussion)
Molny: We had an agreement with Patsy that we would do no excavating
relative to the deck, only excavating for the house, right Patsy?
Lukes: I guess my question is that, you know, if we grant a variance
for this case, what if the next case had similar qualities and the person
very reasonably was forced up to the lot line, worse of an encroachment,
the problem I have with the case is that is that I think that the
variance is the reasonable solution, I worry about it not as a precedent,
but as an application of the powers of the Board.
(discussion)
Mason: Yes, every case has to be all by itself.
Krausch: There is no question in my mind that there has been a hardship
imposed upon the owner, that there will very limited effect upon the
adjoining property owner, and that there is a hardship that anybody who
tries to tell me either the piece of property on Red ?4ountain, going
for what they are these days and a house has to be built like this, with
the views and all and the advantage of building up there, he can't build
a deck on his house, thats just unreasonable. And I don't think there
is any practical harm done to anyone, and there is no question in my
mind, this Board has got every right in the world to grant a variance
and I think, in all fairness to the owner, has an obligation to do so.
Mason: Ok, I{andi, do you have anything you would like to end it up.
Shaffran: My feeling is, I would like to grant the man a variance, I
feel very sorry for the run around you've got, I really don't see,
I wish I could find a legal reason to hang it on, And I don't see,
because, you see I also feel that there is no topo~*raphical hardship,
unless we can construe this in some way, I don't sec a leF;al reason
to do it, I would like to very much, I feel very sorry for him being
caught in this difficult position,
Mason: Bill?
00002
Page 21 ~oard of Adjustment ~ Sept 30, 1981
Lukes: I would have to say that pretty much describes my feelings to
Feel a real need to grant a variance on this particular, to solve this
particular problem. But I'm not sure that I would be able to put the
words together for a motion that could be defended or construed as
following our powers at some later date.
Mason: Clark?
Smyth: Well, I don't know. I'm still up in the air. I mean, I don't
mind, I don't think the variance would hurt a damn thing, but I guess
I'm, I go a little bit with other people say, I'm not, I might have
to reach for straws a little bit to see who has grounds for one, grasp
for straws. I don't know. I mean if the house just went, like that,
it would be so easily be done, I mean, physically done, not practically
maybe. Or the deck could be a 6 foot deck.
Mason: I agree that alot of whats been said here, in my mind, as I
stated before, I feel that the irregular shape of the lot, and what
we call the front yard line and the front yard, and the side yard and
the rear lot line, the Board has done it other times, at different
points we have had that authority to actually come up and define
what we feel is the proper line, and in my own mind, if there was
not a line parallel with that other one, there would be some
question on it, but with the line being parallel with that of the
next door neighbor and thats been declared as their rear lot line,
that I feel definitely that its a irregular shape lot and we have
the right to call this the front lot line and that one down there
the rear lot line, and a side line and a side line and a side line.
Stuller: Are you suggesting then, rather than entertaining this as
a application for a variance, that you excercise your other powers
to basically hear appeals from the administrative decisions and you
would like this Board to take the position that the rear lot line is
the further lot line and therefore, the setback is not even applicable.
Mason: That would be my thought.
Stuller: You have that jurisdiction to take mood if you are interested
in doing that.
Krausch: Thats exactly what I was going to ask. May I ask another
question? Where in the code is it amended, Sandy, to include our
right to grant a variance based upon solar considerations,
Stuller: Its in the same section, well, you have the earlier version,
right?
Krausch: I have the older one.
Stuller: Yea, its in the same section, I'll read the (discussion) it
says, in determining whether difficulties to, or hardship upon, the
owner of such property exist as used in this Section, the adequacy of
access to sunlight for solar energy devices installed on or after
January 1, 1980, may properly be considered. Included within the
definition of solar energy devices for the purpose of this section are
windmills provided that the same are functional, that is, used for the
pumping of water or power generation.
Krausch: So, nowhere does vegetation creep into that language,
Stuller: No, the vegetation is P & Z
Mason: So the Board has heard expressions from everyone, we've also
heard from our County Attorney that possibly it could be appealed to
the Planning & Zoning Commission, and they can grant the building site
due to the vegetation, is that right Sandy? Is it right that if it
went before the P & Z that they could act on that as far as vegetation.,.
Stuller: Yea for purposes of ve~*etation.
OoO~4~
P*go 22 • Board of Adjustment ~ Sept 30, 1981
Mason: So, I got the feeling from all the Board members that they feel
that there is not going to be that much impact, they would like to
grant the variance if at all possible,-they are all grasping for some-
thing to hang their hats on to, why we can grant it tryinr; to help
Mr. Grusin out, being caught right in the middle of the County and the
Red Mountain Ranch Homeowners Association and all of his problems in
that. So, you've heard all the alternatives that you might undertake,
you can grant or deny the variance, even to turn it over to other
authorities so, are there any other further questions, I'll entertain
a motion.
Shaffran: (muffled) to establish and call it a rear lot line (muffled)
Krausch: I would like to make a motion that do to the odd shape and
configuration of the lot in question, that this Board excercise its
powers under Appeal 1.1 to hesr and decide appeals where it is
alleged by the applicant that there is an error in any order,
requirement, decision and so on, based on my personal opinion that
the rear line of the lot is the farther most point to the lot to
south running roughly parallel to the road.
Shaffran_ I would just like to amend that, instead of personal
opinion it should be judgement of the Board. (muffled)
Mason: The word judgement should be inserted instead of peronal
opinion.
Smyth: I second that.
Mason: The motion has been made and seconded.
Lukes: I guess as part of the discussion before we take the vote I'm
just trying to find the section of this that defines the side yards
and rear yards and so forth.
Stuller: The definational of the end.
Smyth: I think, we could add something, its very arbitrary what a
r~yard is, for example, and we found that out just because they
take access, the road might be up here but they take access down
through here through an easement next door, this would be a front
line and the house obviously faces this way,. so this is really
the front, its fairly obvious, in the past, based our discussions
on that, I guess maybe we can use it on what actually is a side
yard or rear yard or the intent of the thing. I think one thing
we should remember is these regulations are set up based on your
typical flat city lots in Omaha Nebraska or something, where you
have got, your trying to line up houses and keep them from being
on top of each other and as we have found there is hardly a flat
city lot in Pitkin County that these things are really applicable to.
Mason: The Board has acted on coming up, at least a couple of times
in my recollection of determining which is the line, which is the
front, side or rear lot line. I think Paul has been here when we
have done it and I know Clark has, (muffled )
Smyth: You know, actually when I think about it, if it could be
moved back, I mean if this were 20 and this were 15 and this deck
could be 5 feet closer, so there would be impact on this property
down here, could, or it wouldn't change. You could have a deck
still five feet from the line.
Dodge: Excuse me, this that we are discussing now is this is (muffled)
side yard lot line and this line for this house is a side line and
this is a side line? All are going to be side lines for this next
building.
~~~~~6
Page 23 ~ard of Adjustment ~ Sept 30, 1981
Krausch: My motion was based on the fact that I, that this is the
rear lot line and that (muffled) (discussion)
Dodge: That this is a side line, I just want to get that straight, and
that therefore, this would have to be considered so, could this be
turned around and this be called the back line,
Mason: Every single case would be handled completely in its own bearing
yes. You can't make it a precedent of, just because a lines run here
and thats going to be, because the Board, maybe next time might consider
this here rear lot, and this one here a rear lot line and (muffled)
now in my own opinion down here, just coming to a point would not be
a lot line, its just a point, there is no, there isn't even a foot there,
it just comes to a point. Anything that is parallel or has some footage,
like that has some footage, it could be considered a lot line. But thats
the long or short of it.
Dodge: Now this road here is not considered ...
Mason: This is considered the front up here. The front is considered
where they, anyone takes his, we've had some (discussion) but someone
decided to come in from over here somehow so they have to :all that
their front lot line.
(discussion)
Dodge: And so therefore, this part of the house, this could be then,
what would be the sideyard,
Mason: This would be a sideline here and a sideline here,
(discussion) ,
(discussion)
(called to order by Bill Mason)
Dodge: Could I ask one question about this, legally, If this is
considered the back line and why not isn't this considered the back
line because they are both parallel to the road instead of us
considering this the ...
Stuller: Its not a legal question, its a question
~r they have to resolve that. You know we've by this Board
ias been seconded.... got a motion now, and
ason: And we are waiting for the
i
quest
on and Bill was looking up,.,
ukes: Could you repeat the motion?
;uller: The motion was to excercise the jurisdiction to hear appeals
it the interpretation by building administrators and determined that
e rear lot line is the further most line on this lot and therefore
e setback requirements are calculated from there and therefore a
riance is not required to issue the building permit.
ces: I have no further discussion.
on: No further questions? Then I'll call for a vote for the motion
sented to the Board by the raising ofhands, Please. So moved.
nk you gentlemen.
:ing is adjourned.
~~~~~7
~~ •
PITKIN COUNTY
BOARD OF ADJUSTMhNT
September 29, 1981
Members Present: Bill Mason, Chairman
Paul Krausch
Clark Smyth
Associates: Bill Lukes
Kandi Shaffran
i
David Grusin, Lot 6, Block 1 Red Mountain Ranch 81-40
Bill Mason: Our next case will be case 81-40, David Grusin, the
applicant is Robin Molny, requesting a 5 foot setback variance on
the rear south property line in order to construct a deck in front
of the living room. Red Mountain Ranch Architectural committee limited
allowable buildable area to extreme southerly portion of property
thereby severely restricting ground area available for usual outdoor
amenities and creating a hardship not of owner's making. I see Robin
is here, would you like to ....
Robin Molny: I'm Robin Molny, here in behalf of David Grusin and
Stephenie Phillips, Lot 6, Block 1, Red Mountain Ranch Subdivision,
here is a survey of the property. This is the 20 foot setback required
and here is the deck extension from here and here, which is 8 feet,
for which they are requesting the variance (muffled) {Ve as the applica-
tion stated went through a long process with Red Mountain Ranch Home-
owners Association relative to starting this house and actually worked
with them for a year, went back and forth (paper noise) and they
insisted that the house be put south of this stand of scrub oak and
be sited in the ground lower than his actual rights allowed, Fact is
that hasn't have anything with this application but for you (muffled)
this stand of oak brush, you see over there with that flagging line
through the middle, established the, in effect, frontyard setback.
Thats the frontyard setback. As you know, in the County it is usually
30 feet, and that is something like ...... from the property line it is
84. And we fought with them about that to no avail. I have a letter
from Jack Barker which I'll read to you, he was president of the
Homeowners Association. It's addressed to me and the subject is variance
for the Grusin's house. Dear Robin, for the record of the Pitkin
County Board of Adjustment I would like to inform that the Red Mountain
Ranch Homeowners Association has been very concerned with the frontyard
setback ofthe Grusin residence. In several on the site observations
by our architectural committee it was decided that preserving the big
stand of oak trees along Reds Road was the same importance as protecting
our natural view plains, that the best possible site was to be as far
down the middle side as possible. Having been involved in the conceptual
planning of this home as a member of the architectural committee I have
been very concerned (muffled)siting, the further south you get the smaller
it becomes, (muffled).
Bill Lukes: This is not a buildable area of•any size is it?
MolnY: No that is not (muffled).
Molny: ~Nhat the Grusin's want is a deck in front of the living room.
Like we all have (muffled) most people. And the Dodges came up to
the site and we established a height for, at this point, for them to
look at and I believe it was about 9 feet above grade from,this ;point
and I don't know if any of you have visited this site, I know Patsy
has, but the site falls very steeply down this and the Dodge
house is located i.n this area and we felt that, I can't verify this
Kandi Shaffran: I tried to find where Martin Seigle lives, I just
never could...
Bill Mason: Martin Seigle, if he touches on Martin, if the property
touches on Martin's it would have to be way over on this coiner here.
000028
Y3oard oJ' Adjustment • • September 39, 1981
Shaffran: Well, you see I knew where hishouse was, but I didn't
you know, like his lot number, I never could find it,
(Muffled)
Molny: I's always been my feelings that this instrusion could not
be seen from the Uodge's house, but I've not gone down and looked
back up, I would bet that it could not be seen, but I'm not
sure they concede to that. And I don't know whether (muffled)
And to repeat what they, the Grusin's would like to do is to have
a deck in front of the living room.
Clark Smyth: Is that there now?
Monly: Yea, thats, this is the deck that looks over the terrace, and
that is the extent of the variance we are calling for and what is
left is about 6 feet.
Smyth: But there is nothing there now,
Monly: No, this house is under construction
Shaffran: And this was done to save the oak because you couldn't
gone forward (muffled).
Monly: Yea, this is all scrub oak.
(Muffled)
Paul Krausch: So the house is under construction, there is no deck
there now.
Monty: That is correct.
Krausch: The house is sited on the lot where it is by virture of a
long, pretentious settlement with the Red Mountain Homeowners Association,
(Muffled)
Mrs. Dodge: Well, the house, Robin, do you have a building permit
yet?
Monly: We have an excavation permit.
Dodge: So there really is no construction yet.
Monly: Just the excavation. And this is (muffled) thats the overhang,
living room in which (muffled) there and that would be the setback
(muffled) variance (muffled)
Bill Lukes: Is this deck construction basically on grade as the sketch
shows?
Monly: It gets out of grade down at this end,
Lukes: It looks like 3 feet or so,
MonlY: Its more than that. The top of the railing is 9 feet at this
point and then it goes to almost nothing in the back,
Shaffran: What is the total (muffled) I just wondered (Muffled) it
ended up being 5 feet how much width would you have.
MonlY: It would be 6 feet. It would be 6 feet from here to here and
8 feet from there to there. So it would only be a six foot.
Krausch: So you could get a 6 foot deck without a variance.
Mon1Y; That is correct
under tho overhang.
Nothing but a 6 foot deck but it would be
000029
Page 3
Board of Adjustment • September 29, 1981
Mason: You could conceivably move the house could have gone back
toward Reds Road area but you ran into problems with Red Mountain
Homeowners Association.
MonlY: Right
Mrs. Dodge: I talked with Jack Barker, I'm Mrs. Dodge, I called him
and I wanted to find out for myself, Robin had told me about that,
and he told me, yes that he wanted the house back, that he didn't
want to look at it, and he also told me, quite blatantly, that rather
irritated me, that it didn't make any difference how close the house
came to our property, that didn't concern him and he didn't care.
And I, as a homeowner, with the value of our property, I'm not very
favorable to being the victim of Jack Barker's desires, he keeps a
very low profile not to look at the house. We're going to build
a studio, I.have it all written in the letter.
Mason: Yes, Mrs. Dodge has written a letter, she didn't know, I guess
she wasn't sure she was going to be here or not, so a letter was done,
and I was sort of looking it over, but (muffl ~ if Mrs. Dodge would
like to, rather than read the whole letteran~~~ ~v~uld like to say....
Mrs. Dodge: Why don't you just explain it to them.
Mason: Well, it reads here that the house sits down below on the old
Red Mountain Road, I mean on the Old Hunter Creek Road (muffled) in
front of the Dodges house, that was vacated at the time, many years
ago (muffled) Dodges are down below. Mrs. Dodge says in her letter
here, just by skimming her letter, that they are planning on building
a studio on the north side of their house, which would be up here,
coming closer to there, and the privacy of this with the balcony
there looking down onto Islrs. Dodge's studio where their son will be
working and living.
Mrs. Dodge: Mr, and I, we have been neighbors for 18 years,
and we have a plan eventually to to get a solar heated swimming
pool and greenhouse and we would bring the equipment through his
property, so there isn't any problem there. Mr. Barker told me alsc
that I couldn't build up there. He said that it was impossible,
it was too steep on that property. That was his opinion of what
I could do.
Mason: So, she also mentions somes other problems they have had
up there with the Red Mountain Ranch, Mrs. Dodge is not a member
of the Red Mountain Ranch Iomeowners Association. She is a seperate
entity, down there, and not a member of the homeowners association,
so she is not involved...
Krausch: The place, just out of curiosity, or
Mason: No, they had their name way before Red Mountain Ranch was
ever developed. So thats, the heart of that, so she has no control
over what they say in their meetings at all. But she is objecting
to it. --
Dodge: John said that he couldn't come today, he lives right next
door.
Mason: Who is this?
Dodge: John Sweeney.
Mason: John Sweeney.
Dodge: And he said that, to tell the committee, to quote him, that
the Red Mountain Ranch Homeowners were a bunch of bastards and liers
and that when they showed him the plans for the "Monument IIotel"
that they then changed them a.nd added on a story later on, he said
that they absolutr.ly lied to his face about it. So he is, I don't
know, maybe (muffled).
Krausch: I'm not sure I'm understanding your point here, are you
objecting to this today?
000030
Page 4 • Board of Adjustment • Sept 29, 1982
Dodge: Yes
Mason: Yes
Dodge; We're not granting a variance. We don't, (muffled).
Mason: (Muffled) The next door neighbor below and they feel that by
granting the variance they are invading on their privacy of looking
down onto their studio they will be building for their son.
Dodge: I really don't feel that we should be victims, the people,
older people, who are not in subdivisions, by people like Barker
and that group, that, I mean, the house is closer, if somebody else
ever wanted to extend the house or do anything, it is just something
to evaluate, something on a very monetary level, that decreases our
property value and increases Red Mountain Ranch property values. And
actually we lose a certain amount of our land once the structure is
closer to our property, it is very simple.
Krausch: How close are you to this house that is under construction?
Dodge: I don't know, we are in the middle of our lot, But the studio,
how close is the studio? I don't know how far the studio will be.
Mason: Robin, do you have any idea how close it might be to house down
to Mrs. Dodge's existing house. I know where her house is, and I
know the other one is, but I can't, in my own mind, I can't.
Dodge: Is it 80 feet, I don't know.
Molny: Well, let me
the Dodge's loft you
and then you start t~
that you are quite a
really have sincere
be able to see this,
say it this way, in order to see the roof of
have to go a minimum of to the property line here,
~ see the roof. Its always been my impression
wsy away from it and quite a bit higher and I
feelings, stop me if I am wrong, that you won't
Michael Dodge: The studio will be much closer though.
Dodge: Its going to be his studio, and this is Michael Dodge.
Molny: How much farther up there than the house will the studio
be?
Michael Dodge: A minimum of about half a distance farther, Halfway
between the two structures to the north,
Mason: You won't have any problem with set-backs when you go to build
will you.
Dodge: Oh no, we have an acre up there,
Mason: But I mean coming back up the hill, for the back yard setback,
Dodge: No
MolnY: I have to say on behalf of the Grusins, that, the old question
about whose ox is gored and all that, I really feel sincerely that the
Grusin's seem to be getting gored from both sides. They're shoved
downhill, which, the contractors here, which severly increased our
construction cost and they are having to, literally, blow up the hill
to put the building in the ground.
Mason: How would it be to you, your asking 3 about, to move it back
towards Reds Road, what to do you come up with, how close your buildings
back to Reds Road from where your planning on,
Molny: Well we've already began excavation.
Mason: Yea, but if you had to go back it would be what, 3 feet towards „
MolnY: 8 feet
Mason: 8 feet towards Reds Road.
000031
Page 5 Board of Adjustment September 29, 1981
Patsy Newbury: The frontyard requirement up there is only 30 feet.
Mason: It isn't Pdrs, Dodge's Property, it's the Red Mountain Ranch's
property, its their baby, it isn't Mrs. Dodge's baby, is the way that
I look at it. They have got a 30 foot setback from Reds Road. Their
saying that they have to go 65 feet...
Molny: 84 feet
Mason: 84 feet, pushing them down to Mrs. Dodge's property. In my
opinion we have always gone along with Homeowners Associations, But
when Homeowners Associations are pushing it onto someone who has
no control, into someone elses property, then we have the right to
overrule the homeowners association, as far as that goes, To go way
back up here and take all the trees out and put it up on Reds Road
is one thing, but 8 feet closer up towards this site here, up towards
Reds Road, is certainly not going to do nothing to the homeowners
association.
Shaffran: How wide is the oak scrub altogether?
Molny: 60 feet, 50 feet.
Shaffran: So if you took 8 feet you would still have 32 feet left,
Molny: If you took out 8 feet the house would go to approximately
here to the middle of the, I think it is an academic question, What
your suggesting, if I understand you, is that we move the house back,
Well, we can't move the house back. If we move the house back,
we would have to re-excavate and all that stuff. And the other thing
is that we would immediately get into a law suit with the homeowners
association.
Luker: The only other thing you could really do is just not provide
as much deck in that area at this point.
Smyth: Is the deck an afterthought, Robin
Monly: No, its always been there. And I have to confess to you that
it is my mistake, the reason that it went over there was I thought
that decks could over the setback lines, Patsy straightened me out on
that.
Smyth: So they accepted plans with the deck as shown over the setback.
MonlY: Yea
Luker: The problem that I have is that, in fact the deck does go over
the setback line. But in fact the house, as I think anyone can see,
is pretty specially designed for this particular context, very long
and narrow and it is obviously wedged in between setback and the limits,
and I don't think that the deck is excessive, I don't think it even
is average for that area, it is not that big, and it doesn't seem, to
me, to be that big of an intrusion, but on the other hand, the problem
that I have is that, as you said, Red Mountain Ranch Homeowners
Association has really, I think, taken advantage of the Dodge's.
Mason: They have taken advantage of someone else. This is the first
time I think I've ever come out, when we've had, which we have always
asked if it has been approved by the homeowners association, because
we don't want to get into any battles with them and we try to go along
with that, but its always been among their own members and neighbors
never, this is the first time I think I've ever seen it where its been
someone outside that has no control over what they actually do at all.
I just wanted to bring that up.
Smyth: If it wasn't for them, we would, and unfortunately, thats to
bad that the excavation started already, we would say, move it back 8
feet .
Mason: If the excavation hadn't been going on..,.
DoO~~
Page 6 ~oard of Adjustment • September 29, 1981
Patsy Newbury: Don't worry about that ,,,,,
Smyth. But I don't if that in our, if something is already done,
i someone goes ahead....
Newbury: thats what they had deal with...
Smyth: if someone constructs an illegal edifice and its already
done, I'm not sure that should influence our,..
Mason: No, I hate to see those things happen, but again, I just...
Lukes: What did you say Patsy?
Newbury: That excavation permit says right on it that if they have
to move it, ,they have to move it.
Smyth: Well, what if someone says we've done a lot of digging...
Monly: We got our bill today and its $20,000.
Shaffran: P7e can't grant for monetary hardships.
There is one point that I would like to make, with all respect to
Mrs. Dodge. If somebody was higher than you, you know their house
was higher, you can't help but they can look down on your house.
Dodge: And you get the noise.
Shaffran: Its just the topography if your living on a mountain and
somebody was higher. You always knew that mountain was there and
would be built on eventually. So there always was a chance, depending
on the style of the house, it always would have a chance of looking
down on you.
Dodge: The closer it is to it, to have an art studio, you usually
have a slanted roof to the north and the closer you are, the more
people can look right down, the more noise, and its just a matter
of 5 feet or 10 feet in that. area, open space, what is 7 feet, 5 feet,
what is 20 feet. It really doesn't, there really isn't a cutoff,
Krausch: As far as we are concerned here is that the Red Mountain
Homeowners Association has put the Grusins in a very unfortunate
position and we can't do much about that, We are not only can, but
somewhat have an obligation to provide a variance to someone who has
a hardship and in my judgement, these people have a hardship just
because, by virture of where they made them locate the house,
Dod e: I don't think we should be the victims of a hardship when
the Red Mountain Ranch are insisting on 84 feet. I just don't think
that we should be the'ones who pick up the tab. I really don't.
Newbury: The thing is that the Red Mountain Homeowners Association
I think if you look at the covenant, their required frontyard setback
is 25 feet. _
Dodge: If thats legal, then Barker can't make up his own rules.
Monly: I don't think so, Patsy, I think that in the covenant they say
they set the frontyard setback. I would like to ask, Patsy is the
only one thats been up there, I think, I would like to ask her to
tell us what her impression of the thing is,
Newburv: You want to know my honest opinion. Mr. Barker has used
that lot for parking space for many years, and he doesn't like that
house going in there at all. Thats my honest opinion.
(Discussion)
000033
page 7 • Board of Adjustment ~ September 29, 1981
Mo_ n1Y: What is your impression about the impacts that it would
have on Mrs. Dodge's property considering the studio?
Mason: In my own mind I don't think it would provide as much
impact as Mrs. Dodge might actually feel, because I've had the
same problem too, with Dave's up there, they went down there
and bought the house and put speakers outside and I get their
music (muffled) and I just call them up and say, I don't care .about
the music if they would just play something else or get something
else on and they usually turn it down or off or cut the band with
the drums and everything else, but I don't think there is that
much impact, knowing the terrain and knowing where Dodge's house
is, it just upsets me more the way we're more or less getting
the shaft from a homeowners association that we have always bent
over backwards to help. Thats my only, thats my problem with it,
because they do have plenty, it isn't like, there are places up
there where they haven't got very much room between Reds Road
and the bank and they have got definitely a terrain feature anyways,
and this is just alot ...
Krausch: Why don't we get that message across. I wouln, I think we
have no choice because of the hardship to provide a variance to
Mr. Grusin, but on the other hand I would like to provide the variance
with the understanding, the Board of Adjustments request the Red
Mountain Homeowners Association reconsider their decision because
of the hardship placed upon the Dodges and that they consider paying
for relocating of the foundation for the house. Somebody has got to
get a message across to these folks they can't do that, thats not
right. And I would like to have that message gotten across.
Dodge: There is no foundation yet, its just the digging.
Krausch: Well the digging, if it is $20,000, thats a hell of a lot
of money.
D_o~d~e~: Yes, but they wouldn't have to pay $30,000 to dig it back
~.
Lukes: Paul I would have to disagree, I guess I feel, very unfortunately,
because I think everythings been done to work within the situation that
could possibily be done, I think that there a very fundamental responsi-
bility to respond to the objection of adjacent property owners because
they are the people who are impacted. And I think that in a sense,
the Red Mountain Ranch Homeowners Association has acted as their own
Board of Adjustment in terms of the frontyard and has impacted somebody
who they, frankly, gave no consideration to. I don't feel a real
strong obligation to grant a variance based on unusual requirements
for other parts of the property. I feel that the minumum setback areas
are the primary ones and those are the ones that affect the adjacent
property owners. Now, I understand what you are saying about the long
term, good-working relationship with the homeowners association, and
I don't have as much experience with that, but I think that the other
obligation is an equally strong one.
Krausch: Let me ask you a question, a hypothetical question, the Dodge's
house, just to make (muffled) was 75 feet away from this house (muffled)
going to be built, and the Dodge's objected because the people sitting
on the deck would be able to look upon them, and you changed that and
make it intd 100 feet, would the objection go away or 25 feet or 50
feet or 200 feet, at what point does that objection become reasonable?
Lukes: The Dodge's?
Krausch: Yes, I have Mary Yaw looking down on me and the Martins lookin
down on me, its their property and their right to do that because they
live on the side of a mountain. I would just as soon they weren't
there ....
000034
Page 7 • Board of Adju::tment ~ September 29,.1981
Smyth: Did they get a variance from the standards to do that?
Krausch: No
Smyth: To run 20 feet Prom the property line.
Lukes: If this deck went to the setback line and did not require
a variance and still impacted the Dodge's in the sense that it reduced
their privacy and so on and so forth, I would say, well thats very
unfortunate, but thats the way the game is played. And that is fair
development of that property and we can't do anything to change the
topography. And if thats the case in Pitkin Green, I would say yea,
within the setback area I don't think you can stop adjacent people,
from developing.
Mason: No and I don't think in my own mind either by coming back 8 feet
or 6 feet whatever it takes its going to make that much difference as
far as the sound levels or the view....
Lukes: Well, one though
this is a good course of
type of compromise would
what the result is going
moving it back 8 feet is
or if in fact we are not
t occurs to me and I'm not sure about whether
action, but one thought is, as a possible
be for the Board to make an evaluation of
to be, what the effect is going to be if
going to significantly reduce the impact
talking about a difference at all,
Mason: In my own mind its not going to make active difference, my only
mind here, in this case here, when I first talked to Patsy about it
in the office, was that I don't like the Board being put into the
position by, what we've been put in, by the Red Mountain Ranch Home-
owners Association, and I think its unfair to them and everything else.
When they, we do have County rules and regulations and everything and
when they start pushing to infringe upon neighbors that are not members
of the homeowners association, its the first time its happened that I
can ever remember Patsy, that we've ever ran into another adjacent
property owner where an organized association has, is going to cause
a problem with someone next door, Thats my only problem there. As
far as coming back, in my own mind, as far as coming back in that
little bit, it isn't, as far as the noise or the impact on the Dodge's
is not .going to make that much of a difference. If the house is backed,
or everything stays just the way it is and the deck stills doesn't
go in, it still going to be there, the house is going to be there and
everything else. But again, it just makes me mad on that homeowners
thing.
Krausch: You may think a deck is an unnecessary item, and maybe it
is, but one of the reasons you want to live on Red Mountain it seems
to me, is to take advantage of the sun and the views and all the
rest of it.
Mason: It's just like a room in a house.
(discussion)
Michael Dodge: It does make a difference to an artist
very hard, like somebody working in an office, they're
a job and having a noise right when you are trying to
hard, and any distance at all will make a difference,
a lot to you people, but it will make a difference, it
make a difference.
(discussion)
thats concentrating
working at
concentrate very
It may not mean
would have to
MonlY: I think what the problem is is that the Dodges have seen
the site, Patsy has seen the site, and I've seen the site, and the
people who are going to vote haven't seen it. Is there anyway that
we could visit the site and vote on it based on what you observed,
ShaCfran: I would love to if you have the time (muffled) buL I
would like to.
Mason: No I think if the Board feels strongly and we have gone
out to visit sites, different times, I'm pretty familiour with
it, I, like Robin says, I haven't actually been on the site, but I
ODUU35
Page 9 • Board of Adjustment • September 29, 1981
am familiour with it. I think that would
good idea to have the Board meet and have
the time, at a time that it is convenient
to run up and take a look at it. I think
good way for us to do it. If thats agree
whenever, Paul, he has certain hours that
certain hours.
probably be a pretty
Mrs. Dodge there too, at
with Robin and for us
that would be a really
~.ble with you, if you want
he is tied up, Clark has
Monly: I think its very important.
Mason: Well, if thats agreeable with everyone, we could certainly...
Krausch: Your guess has it that it will be just about halfway
between your house and the new house going up, the studio?
Michael Dodge: Yes
Krausch: When do you plan on building the studio?
Michael Dodge: Whenever we get the money up. (Laughter)
Dodge: Does that have any bearings on when we plan to build?
Krausch: Well, it just occurred to me, the house is 18'years old
and it hasn't been built yet.
Dodge: He is only 19, and did you go to the visual arts show on the
Roaring Fork?
Krausch: No
Dodge: I mean he is a very, he is becoming a very good artist, they
say extremely good, he is very serious, it is his whole career.
Michael Dodge: I work 12 hours a day on it.
Dodge: This is not, I mean...
Krausch: Did you get the impression that I'm making fun of his
art?
Dodge: (muffled) its just as you said, you haven't built it so far
(tape was turned over)
Dodge: Do you think that you can talk with Mr. Barker and work out
anyway that you can deal with him directly a`s one Board to his Board?
Mason: I think the meeting would be nice if Robin could have .?ack
Mere at the time. I would like to have you there, Mrs. Dodge
and the members here if we could do it, work out a meeting and we
could make a decision on it.
Smyth: I have a legal problem. My understanding of why we can
grant a variance does not include the fact that the Homeowners
Association wants the house away from the road. And we cannot,
there is not a topographical reason it can be moved back, there
is not an exceptional narrowness of the lot why it can't be moved
back, I think the only reason is because the homeowners says that
it had to be down there. The fact that excavation has already started,
thats a risk that the owner h'as taken. He may not get a building permit,
he may end up with a whole. So I'm not sure, maybe we couldn't give
a variance if we wanted. The homeowners wasn't involved, the
excavation wasn't done, we would say, why can't you move it back
8 feet and I don't think there is any reason outside of those why
they couldn't.
Molnv: The reason for that is that the Homeowners would say,
no you can't move back.
(discussion)
Smyth: I don't think we have the authority, I don't think, to grant
oooo3s
Page 10 ~rd of Adjustment . September 29, 1981
~ variance because the homeowners want the house way the heck down
there.
Mason: No, we don't
Krausch: Where does that leave the owners, the Grusins?
Smyth: The Grusins are between a rock and a hard place, unfortunately,
that is not our doing, though. Perhaps the homeowners should give
a variance rather than the Board of Adjustment, just because I don't
know whether we have the legal grounds to, they can, they do. I mean
a variance...
Krausch: You could grant it on the grounds that the hardship to the
Grusins has been accomplished by virture of the requirements of the
Red Mountain Homeowners Association.
(discussion)
Lukes: Robin could I just pull a hypothetical question, if the house
were a comparable amount or an equalivant amount so that the deck just.
touched the setback line, lets say moved up the hill 8 feet or so,
would that make an appreciable difference in the floor levels of that
house, would it slide up? 2 feet or 3 feet. Is that a factor in
the homeowners association?
Molny: Yes it was a factor, we could not raise the house.
Lukes: So in fact, you are stuck right where you are, moving the house
even if you had no excavation, its not possible because it would have
been too high to please them.
Dodge: Its all flat, its completely flat.
Molny: No, not at all.
(discussion)
Molny: I'll just read to you about the setbacks, ok. Front lot line
is defined to mean that lot line of the residential lot that is abutting
a dedicated County road or on a private road. In the event residential
lot abuts on both the dedicated county road and the private road or
abuts on one or both of these road etc, etc. (muffled)
Shaffran: I do have (muffled) but if it ends up that we do grant it,
at least your lucky enough that the studio isn't built yet, and you
could always move it closer to your house if necessary. None of
us like it, but at least its already an existing structure and complaining
about, the studio could be closer to your house, couldn't it? It
can't be. I mean that wouldn't have any effect cause I don't think,
you know, (muffled)
Dodge: (muffled) its very important to be quiet, absolute quiet.
(muffled)
Molny: I've found this „ The architectural committee shall establish
the setback requirement from the front lot line.
Shaffran: Yea, but I mean, how, doesn't any county law supercede
that, I mean they can't be authority,
Mason: They can, over our setbacks, I mean as far as our things go....
(discussion)
Lukes: But I was curious about those, if there was anything that
refered to the situation of the adjacent property owner and if there
were any more objective criteria or what to do if the adjacent property
owners in fact did not agree.
Mason: Let me just read this here. Board of Adjustment has the following
powers and duties all of which shall be exercised subject to the laws
of the State of Colorado and subject to appropriate conditions and
safeguards in harmony with the public interest and the most appropriate
00003
Page 11 • Board oP Adjustment • September 29, 1981
use of the area. To hear and decide appeals where it is alleged by
the applicant that there is error in any order, requirement, decision
or refusal made by an administrative official or agency based on or
made in the enforcement of zone district regulations. To interpret
the zone district boundaries and pass upon disputed questions of lot
lines or similar questions, as they may arise in the administration of
the zone district regulations. Where by reason of exceptional narrow-
ness, shallowness or shape of a specific piece of property at the
time of enactment of zoning regulation, or by reason of exceptional
topographic conditions or other extraordinary or exceptional physical
characteristics or condition of such piece of property not created
by the applicant subsequent to the adoption of these regulations. Not
created by the applicant subsequent to the adoption of these
regulations, the strict application of any zoning regulation would
result in peculiar and exceptional practical difficulties to, or
exceptional and undue hardship upon, the owner , the owner of such
property, then the Board shall have authority upon an appeal relating
to said property, to authorize a variance from such strict application
so as to relieve such difficulties or hardship, provided such relief may
be granted without substantial detriment to the public good and
without substantially altering or impairing the intent and purpose
of the zoning district regulations and the policies and regulations
of this Code; provided, however, that the Board shall have no power
to vary from the uses prohibited or permitted only by special review
for the zone district involved. In determining whether difficulties
to, or hardship upon, the owner of such property exist as used in this
Secition, the adequacy of access to sunlight for solar energy devices
installed on or after January 1, 1980, may properly be considered.
Included within the definition of solar energy devices windmills,
this is something thats just been added on since 1980. To reviewing
other matters. And it goes through the PO's of the organization, but
thats our Powers and Duties.
(discussion)
Mason: No created by applicants subsequent to the adoption of these
regulations.
Dodge: (muffled) in a sense this was created by the homeowners
association.
Mason: Thats what I, created, not directly by the applicant, but
being a member of the homeowners association, of another body, they
created their own problem. They created a problem that, when there
is room, that, now, the terrain, if there wasn't enough room and
they had to drop off because of the steepness or something like
that, then we could, thats a hillside thats always been there, there
is enough room back there, because they wanted it farther away.
Molny: May I make another point.
Mason: Sure
Molny: There is a deck out here too, which is off the kitchen and
dining room, which is approximately, it is another 20 feet closer
to the Dodge's house, but its within the setback regulation, Point
of which is that the Dodge's (muffled) the Dodge's have closer, are
objecting to a deck which is 20 feet behind another deck, which is
also a deck, which is this one right here, that shows whats
going on.
Krausch: Point where your house is, just looking at this, is it
there, there, there.
Dodge: Its down in that....
Krausch: Its down here?
KolnY; No its down here. ,
Krausch: No relative to this right here,
MolnY: Oh, ok, its down right ... correct? Can you read that?
000038
Page 12 B~d of Adjustment • September 29, 1951
Smyth: I can't read it upside down,
(discussion)
Shaffran: If we did go to the site, would we still have to come back
here and talk into the tape machine to make a decision?
Mason: No, we can make a decision on the site
Shaffran: So we wouldn't have to wait a month to make a decision?
Mason: No. we've made them on the site, taken, gone through the
motions, took a vote, taken the secretary with us and everything is
done there. So we don't have to come back.
Smyth: I don't mind visiting the site, I think, I'm skeptical whether
to say what difference can it make, much effect on a house or proposed
artist studio anyway. Specially given the difference in elevation,
but I'm not sure even if we decided its not going to make an effect
and its good that we have a reasonable grounds to make the variance
we want.
(discussion)
Lukes: Thats right, thats why I to bring the subject up because
it almost entails the cooperation of the Dodges which I'm not sure they
would provide in, saying, you know, if everybody agreed that the impact
was not there, then we're not really objecting and I'm not sure that
thats their position at all.
Mason: I'm like Clark, I'm, I don't know whether we have the right to
grant a variance under a hardship thats been created by someone else,
thats the way I look at it.
l.4olny: Doesn't the document that you just read say though that, a
hardship created by not of the owners own making,
Shaffran: The homeowners association created it, not the topography,
or the solar...
Molny: But not the owner though,
Shaffran: No but
(discussion)
Smyth: I don't think we can bail them out unfortunately. I think we
would lik e to, if we could.
(discussion)
Newbury: I've got a reading from Sandy
Mason: Have you got a reading from Sandy?
Newbury: (muffled)
Shaffran: I feel very sorry for the Grusins. Its going to cost
them, I mean, I agree that in a since there is not a real reason, and
I don't like being put in this position, but that has nothing to do
with it, you know the application is just following the letter of the
law. It seems it, you know, creates a real hardship on the Grusins,
and I feel badly about that, but I can't see any justification, because
the homeowners want, and its not like your going to destroy, it still
would be quite a good sheild, the oak, so its not like it would be
totally destroying it raising it to put the house instead of a nice
tree cover and I ,just don't see any reason why, I'm trying to not
take any pcr5onal l'celings about :Lnythin;; else: except just looking
at it as a straight I mean not considering feeling bad about
them being pushed around and the Board being pushed around by the
homeowners association. And just disassociate from that, I, there is
no reason.
0000.33
Page 13 • Board of Adjustment • September 29, 198
Mason: Nope, it had to go way way back up, a long ways back where
was going to be infringing back upon a normal setback in that
area, where it is 25 feet that would be one thing, but just coming
back 8 feet back, I don't, I have problems with that when there
is, when they can come back on it. I don't think the impact on
the Dodges is going to be there anyway, whether its 8 feet or
nothing going to make any difference there.
Lukes: The point is the question of can you, or should the Board
grant a variance over the objections of an adjoining property owner
without a specific basis for doing so, Thats what really bothers
me.
Mason: You know, we have granted variances over the years where the~~e
property owner have objected, but there has always been a reason,
there has always been a good reason, or no problem that we could that.
And that is something that the Board has to be very carefull of,
that when you grant a variance for anything, that you always
something that you have to hang your hat on. There has to be a valid
reason on there, And if Patsy has already discussed it with Sandy,
which I am willing to do to, I mean rather we have the might to
grant a variance under those, under those conditions any way, when
we wrote the last one up in Meadowood, remember the garage in there,
and I spoke to Sandy and said, I said, we felt sorry but there isn't
anything we could do about it, there was no hardship that we could,
it was something that was created that we had no control over.
Lukes: They have given them a building zone that is 30 feet wide
at the widest. Its outrageous
Smyth: It is, but it is not a hardship, its not a topographical
hardship.
Krausch: The customer, the applicant, aid not create it,
(discussion)
Krausch: But as he read it, a hardship not imposed by himself, He
certainly did not involk the hardship,
Smyth: But Paul, the homeowners don't have to make them do that,
they can let them move back 8 feet if they want,
(discussion)
Molny: Yell, Clark, let me make this point, the homeowners convenance
are recorded documents in Pitkin County, They have the right to set
the frontyard setback, {Yhether they legally made it excessive or not
is a mute question, ok, that something to be determined with a lawsuit
and going to court. So this is a recorded document, they were in the
contracts of the document, set the front lot line, in which then
imposed the house upon Grusins not of their own doing,
Newbury: Everyone on that homeowners association .. ,
Smyth: I would like to give you this variance, I'm not sure legally
we can. Legally the homeowners can, but legally we cannot. Ne're
restricted. We are restricted to what we can do. They aren't. I
mean it is arbitrary, they can make the frontyard setback whatever
they want.
MolnY: The argument is whether or not it is a hardship, right.
Smyth: Whether it is a topographical hardship or a its not
a land hardship, its a body, a foreign hardship.
Shaffran: Its hard to say, because the homeowners want the house
urn thc~r back its not topo„raphical, or solar or downroning.
Mason: Thats what, it doesn't, by reason of exceptional topographical
conditions or other extraordinary physical characteristics, So the
physical characteristics, Not created by the applicant, Pardon?
Molny: How about that phrase, other exceptional characteristics?
000040
Page 14
Board of Adjustment
Dodge: What is the..
September 29, 1981
Mason: No it wouldn't be that, not created by the applicant, subsequent
to the adoption of the regulations. I feel, that the problem is, was
Created, not by Pdr. Grusin, but by a board that he, or an organization
that he is part o:f really. Because he is a member, he is a member of
the homeowners association and he has a vote in it.
Molny: He is not a member of the architectural committee.
Mason: No, but I mean he is a member of the homeowners association,
because anyone in the homeowners is in that. But again, I know how
that board is up there and their very tough, they do an excellent
job and everything, Like Mr. Horowitz, is not connected with it, But
Mr. Horowitz sold a lot over here next to him. I would doubt that
the homeowners association would say that he didn't have access through
Reds Road, they held I would say about 25,000 - $30,000 bucks for access
along the road that I think probably they legally had rights too, be-
cause you can't landlock a piece of property anyway. So, but not
to go to court, they settled out. of court for x-number of dollars.
But one thing the Board has to remember, no matter, and I'm sorry
there has been any number of dollars spent, $20,000 or $2, on the
project, the one thing, don't ever mention monetary reasons for
granting a variance because the Board cannot. I know, you have
purposely stayed away from it because you probably heard me say
it, but of course, the Board cannot grant a variance on monetary
hardship.
Shaffran: By virture of the fact that he did excavate without
nowing for sure, he did create the hardship, because by agreeing
to what architectural committee said, and in sense maybe he did
create some, he didn't have to excavate, he could have perhaps
waited and found out exactly what his limits were and his rights
were.
Molny: My only point, excuse me, about that was that its one
point when we are talking about moving the building 8 feet back
and thats impossible (muffled) we could not, absolutely
could not move the building back 8 feet. The board would not
approve us moving the building back 8 feet. We tried for
a year. In fact, we have document after document...
Shaffran: Even if it is superceded by a County Board?
Molny: Sure, they have the right to set the frontyard setback and
even if they are wrong, they would still sue us.
Krausch: Where do you take your access?
Molny: Pardon?
Krausch: Where do you take your access?
Molny: Right here, this is Reds Road and you come in...
Krausch: This is your driveway here?
MolnY: That is correct.
Mason: I think you could sue them and have a case, I know its a
problem going to court and all those things
(discussion)
MolnY: I don't want to take up a lot of your time.
Mason: Oh, I know Robin, I fee], too (muffled)
Krausch: This is the kind of thing that can be compromised, but
o viously they aren't going to get a compromise,
Molny: Doesn't it say in there, extraordinary hardship with no
reference to topography or any other situation,
000041
Page 15 • Board of Adjustment • September 29, 1981
Mason: By reason of exceptional topographical conditions or other
extraordinary or exceptional physical characteristics or conditions
of such piece of property not created by the applicant subsequent
to adoption of the regulations,
Smyth: I think that means physical characteristics.
Mason: Physical characteristics.
Krausch: It also went on to say something about application of
any zoning requirement, would Red Mountain Homeowners Association
be classified as a zoning requirement?
Shaffran: I wouldn't want to say that they are, (muffled)
Mason: No, they don't have any zoning requirements, they don't have
anything to 'say about the zoning, they just have their own problems
up there.
Smyth: Patsy, Sandy gave her legal opinion saying she did not feel
there was a hardship.
Newbury: Thats what she told me when I talked to her, She said that
as far as she was concerned Red Mountain Ranch Homeowners Association
had nothing to do with County setback requirements, that was her...
Smyth: Maybe we should, what happens if this gets tabled?
Mason: At least it is still open,
Krausch: I would like to get an opinion from Sandy on the subject of
whether or not this Board has the right to provide a variance for
someone whom, if we assume there is a hardship, who has been put into
this position because of local building requirements, covenance of
the Red Mountain Homeowners, I would like to know that.
(Discussion)~'myth: Maybe we could table it pending...
Mason: I think that would be the best thing for Robin under the
circumstances, because I think if it came to a vote now, it would
probably be more on the negative side than on the positive side.
As long as there, I would personally see it kept open and contacting
Sandy immediately, I mean if we had to get together for a special
meeting for just a short period and have Sandy (muffled) so Robin
would know so we know it, so if that is agreeable to the members...
Krausch: That would give us a chance .,...
bfason: Get us a time we could do it, a time Sandy would be free for
her, we could set a definite point up there, we could hold the meeting
here or in her office or something like that and get a definite
answer.
Dodge: Could we be notified also?
Mason: Sure.
(discussion
Molny: You want to know where the location is?
Shaffran: Yea, thats it, I was up there today driving around and I,..
MolnY: Do you know where Jack Barker's house is.
Shaffran: I don't know any, I don't know how to get back there,
MolnY: Ok, do you know where Reds Road is?
Shaffran: Yes
0~~~4~
Page 16 Board of Adjustment September 29, 1981
Mo_ ].ny: You go up Reds Road and its the only hole on the right. Its
about the sixth house.
(discussion)
Mason: I will make it a point to contact Sandy tomorrow and I
will have Audrey notify the Board members. Is the Board members, on
their time, what would be a good time if Sandy, Paul what is best
for you?
Krausch: Well, if Sandy says no, obviously....
Mason: It wouldn't take very, very, it shouldn't be very long, Sandy
will either have an opinion one way or another on it, and I would like
to here it from her too, I don't want to put Patsy on the spot. Be-
cause she has, probably, talked to Sandy on it, and I am sure she has
and I think Sandy should actually come....
Krausch: Yes, and make a ruling on this and also in the future, just
in general terms what are our ,^ights....
Molny: The whole Board doesn't have to meet with Sandy, if she says
its a legal application we can then schedule the meeting there.
Mason: I think they might like to hear it resolved. So I just think.,.,
Krausch: We can hopefully resolve it at the same time.
Mason: Yea, then we can resolve it at the very same time and we
wouldn't have to continue it, so Paul have you got better time for
you or Clark?
Krausch: Well, not between 7:30 and 3:00.
Lukes: Wednesday morning and Thursday morning are kinda bad for me,
Mason: In the afternoon then, about 4:00 or something like that, 3:30
or 4:00.
Dodge: Are you going to look at the....
Mason: No I think we will meet with Sandy first.
Lukes: We will go informally.
Shaffran: 6Ve will go on our on first.
Mason: I think we should meet with Sandy first and find out whether
we even have the right, if she says we have the right then the Board
could run up there and review the property at the time, Which I
would be more than happy to do too.
Shaffran: Although, too,.as you said, 8 feet in a sense(muffled)
really a question of the principle,...
Mason: Its the principle of whether we actually have the right to do
it and I think that should come from Sandy. Audrey, (muffled) to
come to the special meeting. Could I try and do it, if Sandy is free
tomorrow? Anyone be free tomorrow about 3:30 or 4:00.
(discussion)
Mason: If thats agreeable lets plan on 3:00, if its ok with Sandy,
and I'm sure, unless she has a court case or something ...
Krausch: Audrey will call us and tell us what is going on.
Motion: At 3:30 and i I' Llu~ room is boi n~; used wo wil l usr~ Lho court
room. I~Say I have a motion that we should that this is tabled until
we get an opinion from the county attorney.
Lukes: I move that we table this motion until a legal opinion is
received from the county attorney.
000043
^ .'Page 17 ~ Board of Adjustment • September 29, 1981
Mason: Why don't we make it until 3:30, until, table it until
3;30 tomorrow afternoon...
Lukes: I amend my motion to table the motion until 3:30 p,m, tomorrow,
eW dnesday, 30.
Smyth: Second
Mason: Motion been made and seconded, vote, ok so move. I think that
is the best way to handle.
000044.