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2010-7-29 MinutesMeeting of July 29, 2010 Chairman Doug Cook called the Blair Board of Adjustment to order at 12:00 p.m. Members present were Doug Cook, Wyman Nelson, Carl Rennerfeldt, Dick Wardell and Lee Suhr. Member absent: Dave Kaslon. Others present were City Administrator Storm and Assistant Administrator Green. Motion by Nelson, second by Rennerfeldt to approve the minutes of the November 16, 2006 meeting as presented to members. All members present voted Aye. Chairman Cook declared the motion carried. City Administrator Storm reviewed the role of Board of Adjustment members in reference to the state law requirements for the issuance of a variance. He noted that it is the responsibility of the applicant to prove his hardship and no variance should be authorized by the board unless it finds that: (a) The strict application of the zoning regulation would produce undue hardship; (b) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; (c) the authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance; and (d) the granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice. No variance shall be authorized unless the board finds that the condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the zoning regulations. Assistant Administrator Green stated the applicant would like to construct a retaining wall one foot from the rear property line. The proposed retaining wall is 15' in height. Green stated that Blair's Zoning Department considers a 4' or higher retaining wall to be a structure and required to meet setback requirements for the zoning district. This property is zoned RL — Residential Low Density which requires a 25' rear setback. Green reviewed the site plan of the area and the proposed retaining wall indicating Staff did not feel comfortable with this high of a structure to be constructed one foot from the property line. A dedicated public right of way maintained by an association is directly next to this property line which provides access to other properties in the area. Staff feels the further they can push it back from the property line the better and would like to see at least a five foot setback. He did note that additional cost to the property owner to construct something that would meet at least a five foot setback is not reason to grant a variance. Dan Thiele, 13478 Chandler Rd., Omaha, Engineer on the project appeared before the Board indicating he knows no other viable way to save this property. The proposed drawings are for a two tier wall design with one wall being constructed at 15' in height one foot from the property line. His design of this wall system is designed to safely support the house with a 3 to 1 vertical slope constructing a second wall designed to keep the deck in place. In constructing anything on this property, they have to be concerned with jeopardizing the support of the house. The plan they have designed is the only viable option they see or this property is a total loss. The city has asked the wall be moved back but Dan indicated he has been resistant to this idea because of the distance needed to support the walls. Member Nelson asked if there were any other options available. Thiele stated this is a very elaborate system and there are not many systems of this type around to compare too. City Administrator Storm indicated the property owners purchased the property with the intent to make this their family home. It was fully disclosed to them what the city would require prior to them purchasing the home and discussions were even held with their personal banker. He reminded the Board they need to determine if there is a hardship to this property that warrants the granting of the variance. Staff is not comfortable with anything less than a five foot setback but did indicate this property would be a good candidate for some type of variance to the rear yard setback without damaging the integrity of the zoning and/or the community. Some type of variance does need to be granted but not necessarily a 24' variance. Dave Wenck, Dave's Keystone Landscaping, 6600 CR 33, Blair, is the contractor on the project and stressed that something needs to be done to fix this property because if it continues to sit empty, the entire house could eventually slide down the hill. He indicated he had constructed the original retaining wall but that the property owner at that time did not maintain it properly and then added a deck. Dan Thiele stated the existing wall design was never viable but the original homeowner took the responsibility to construct it along with a deck and then did not maintain it properly. Norm Kyle, applicant, stated they were fully aware of the problems with the house prior to their purchasing it but requested a variance be granted to help save the home. Member Nelson questioned of the couple had sought legal counsel prior to purchasing the home and would the city be liable if someone slide off the road or drove into the wall. Member Cook inquired if we could require a guard rail be installed. The Kyle's indicated they had not sought legal counsel prior to purchasing this home. Storm indicated with the granting of the variance some additional requirements could be added. Dan Thiele indicated that his company routinely builds these types of walls adjacent to road ways. Member Nelson questioned Mr. Thiele again if he had any other options to construct this wall. Mr. Thiele stated that something else could be constructed but no feasible structure based on cost. Member Cook questioned if the deck would be removed, could the wall be pushed back. Dan Thiele stated this plan was designed to protect the house, patio and deck. This design would provide a one to one slope for the house and a three to one slope for the deck and patio. He did not believe that even if the deck and patio are removed, this design could be altered. This is not an average design or one that is easy to design and is already at least a $50,000 structure. Mr. Thiele stated his concern is not the cost of the structure but whether it is safe to support the house. The house is not flexible and there is not a lot of flexibility on a part of an Engineer. He could not guarantee he could get any other design to work. Green stated the passage of a 24' variance would require four out of the five votes and noted the applicant cannot build this structure without a variance. Green also reminded the Board that any action the Board takes does set a precedent. Kristin Kyle, co- applicant, expressed her concern for any delay in action because the house is continuing to erode. Board member Nelson went on record stating he is not convinced there is no other viable option to construct this wall and is not comfortable with a one foot setback from a public road. Motion by Suhr, second by Wardell to approve a 22' variance to the rear setback requirement because of the following: a) due to the topography of the property a strict application of the zoning regulation would produce undue hardship; b) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; c) the authorization of this variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance; and d) the granting of this variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice. Board members present voting Aye: Suhr, Wardell and Rennerfeldt. Board members present voting Nay: Nelson and Cook. Chairman Cook declared the motion failed. There were no communications from the floor. Motion by Nelson, second by Cook to adjourn the meeting at 1:12 P.M. All members present voted Aye. Chairman Cook declared the meeting adjourned. � f, 1 ,. B renda Wheeler, Secretary