Good evening.

And welcome to the April 13th, 2026 meeting of the Board of Zoning Appeals.

Our chair, Mr.

Liu, is absent tonight, and the vice chair, Ms.

Bauman, has been approved to participate remotely due to a work conflict.

The board must elect a temporary chairman to run the meeting tonight.

And to do that, we need to have a nomination for a temporary chair, please.

I would like to nominate Mr.

Foley as temporary chair for tonight's board meeting.

Do I have a second?

Second.

Mr.

Foley, will you accept?

Yes, I I will accept.

However, I would like to note that being the uh chairman should be shared by all.

Give me another year.

All right.

I'll accept.

Thank you.

Um I I I guess being the acting chairman, I'd like to hold a uh a vote for um for me being acting chairman.

So and all in favor of me being acting chairman would uh uh could I uh get in favor of say aye.

All opposed, same sign.

Okay, then uh I am acting chairman.

Thank you.

Okay, um call to order.

Okay, I haven't done this in a while.

Uh I'm gonna read it.

Thank you, Ms.

Christensen.

Um April 13th meeting of the BZA.

Um for those of you who have not attended, these will be uh the go over some of the procedures here.

Uh when a case is called, the city staff will have up to five minutes to present their case, and after which the applicant and their representatives will have a total of five minutes to present their position.

Finally, the case will be open to public comments with each speaker limited to five minutes.

Uh, members of the public must fill out a speaker form uh for the record.

The board may ask questions during any of these presentations.

The response to the board question does not account against the five minutes.

However, speakers are asked to only respond to the question and refrain from elaborating, restating their position or asking um uh the board questions.

So um yeah.

Umce the uh uh comment period is closed, the board will deliberate uh during which the board may ask additional questions.

As always, speakers are asked to respond to only the specific questions and not elaborate beyond that question.

Um the BZA is a several member board uh with four member quorum requirement.

So all motions must have affirmative uh four votes to pass, regardless of the number of boards in attendance.

Ms.

Christensen, please call the call roll.

Ms.

Bowman.

Here.

Mr.

Burke?

Here.

Ms.

Evelyn?

Present.

Mr.

Foley.

Present.

Mr.

Justice?

Here.

Mr.

Patel.

Here.

All right.

With that, we'll move on to the first item on the docket.

Uh BZA 2026 0004 219 West Mount Ida Avenue.

Public hearing in consideration of a request for a special exception to construct an addition in the required side yard.

Good evening, members of the Board of Zoning Appeals.

Before you this today is the special exception for 219 West Ida Avenue.

Before you is the agenda with the summary and the background of the proposal.

The applicants are requesting to add a rear edition in the required side yard.

One of the key elements of this is the location of the two-story edition, and that this two-story edition will be in line with an existing non-compliant wall.

So right before you, the property is zoned R8 and is surrounded by single um unit dwellings.

It is a substandard lot with respect to lot sides and lot width.

The applicants before you are proposing to add an addition to an existing house, and what you're seeing is the west elevation.

Due to the measurement of the addition, the addition is measured from the eaves down.

So therefore they actually need a special exception of 3.84 feet from the required side yard requirements.

And what you see before you, because this is a corner lot of records, so this is a corner lot with the primary face in West Mount Ida and the secondary face in Holly Street, which you will see from the Holly Street is the pitcher towards the upper left.

They are also proposing to construct an open front porch, which is a permitted obstruction and it meets the definition, so therefore it is not part of the special exception.

And also from the north side yard, it will be the um the view of the addition from that portion.

So before you, they're asking for with the the required side yard is 11.17 feet.

So if you look at the top, you see the 7.7 feet four inches or 7.33 feet, which means they need a relief of 3.84 feet.

The applicants meet all the criteria for a special exception.

And with that, staff recommends approval.

Any questions?

I'm available for any questions, comments, or concerns.

Okay.

Let's move on to the applicant.

Oh, sorry.

Different venue than I'm used to.

I'm Nathan Moore.

I am here representing uh the clients on behalf of uh Moore Construction Group who holds the permit.

Well, the pending permit for this project.

Um I appreciate the support from uh staff on the matter.

Uh we are intending to keep the house uh to be uh to not exacerbate the issue of the encroachment on the side yard.

We're just looking to move it straight back with a slight tilt in the rear to maintain the consistency with the uh relief being sought.

And um uh available we we do have three letters of support from neighbors as well, which we appreciate.

So I have a presentation prepared as well if if that would be beneficial.

It's completely up to you.

Uh um you can use your five minutes for however you like.

Sure.

I think for context it might be helpful to see what we've prepared.

Okay.

Uh most notably um just some of the perspective views so you can see exactly what's uh being proposed.

You mess the quicker.

Oh.

Okay.

So this is the subject property.

Again, uh as stated, it's a corner lot.

I'm sorry, I already messed it up.

Well, that's a very small thought.

Um so you can see the existing structure on the left and what we're proposing to go back with.

Uh we want to keep it in line.

We want to keep and maintain the height that's already existing and the side setback, which is already existing, uh, just expanding it back uh farther.

Again, we're proposing a 0.58 degree lilt uh to maintain the exact amount of relief sought for the side yard.

Um this is the perspective view showing the the subject property.

And as you can see, um you know this this is an existing condition that's just going to uh be extended farther back if approved.

This is perspective from the side as well.

And you can see the dotted line there.

That's well, not enforced perspective, it shows where the addition is is proposed to be situated.

Again, maintaining the existing setback.

And these are the drawings that were already part of the presentation.

Um again, it uh we appreciate the staff support on this and the support of the neighbors.

Um do you guys have any questions for me?

Questions go ahead.

Thank you for your presentation.

And uh I didn't know what the word lilt was in this context, uh, so thank you for that as well.

Uh and I think that that design change uh shows a degree of good faith that uh I certainly welcome uh to these proceedings, but uh does it add a significant amount of cost to the project to have that offset versus maintaining the the plane of the wall if it's true that they're the uh main house wall and the lot line are not in parallel.

But uh does it add a significant amount of cost to the project to have that offset versus maintaining the the plane of the wall if it's true that they're the uh main house wall and the lot line are not in parallel.

I mean it's an added degree of complexity, but uh we uh for us it's not that big of a deal.

Okay, so um it's honestly I think it would probably look better if we didn't.

Right.

Seeing it from the street, seeing it as a clean straight line.

But again, it was uh um added for for uh consistency and compliance.

Got it.

Thank you.

Any other questions?

Um I know you have more time.

Do you want to add anything?

Um I don't believe so.

Um unless anyone has any other questions for me.

Okay, then uh let's move on to um any public speakers.

Do we do we have anybody to Okay?

So we're gonna close this out.

We're gonna go to board deliberations.

Um keep in mind you can ask any questions you like to whomever you'd like.

Do we have any thoughts on this?

I mean, I think I kind of heard a thought in that comment earlier.

Oh, sure.

Uh I think it's yeah, it's a very subtle uh departure from the plane of the of the house, but um I I would have been fine with it either way.

You know, whenever the house was set, it not being in parallel with that uh with that line, and if they're gonna make the addition parallel with it to um maintain the minimum uh the minimum setback from the main house relative to the side lot line.

I think that's um perfectly acceptable.

Any other thoughts?

Do I hear a uh a motion?

Yes, I'd like to move to approve this application.

I second that motion.

All in favor say aye.

Aye.

Aye.

Aye.

All opposed, same sign.

With uh none opposed, five in favor.

Uh motion passes.

Thank you very much.

Appreciate it.

Thank you, thank you.

Okay, so we're gonna move on to docket item number three.

Public hearing and consideration of a request for a variance to construct an addition in the required front yard.

My name is Rachel.

Department of Planning and Zoning.

Uh this is a request for a variance from the required front yard to construct a one-story addition.

Um just some items to highlight is this property is a unique lot shape with two yards, two front yards, and the proposed addition would meet all other zoning requirements.

Uh so the subject property is a corner lot of triangular shape uh and is surrounded by all other single unit dwellings and is zoned R8.

Um the lot is subsandered to lot size requirements, and the dwelling was constructed in 1950 and currently has a front yard setback of 25.1 feet.

Um the applicant is proposing to construct a one-story mud room and an open portico on the front of the dwelling.

Uh the open portico uh would be roughly 35 square feet and is a permitted obstruction, so it's not a part of this request.

Uh the mud room would be 55 square feet and would be located 19.58 feet from the front property line along Davis Avenue.

Uh so the R8 zone requires a front yard setback to be within the range established by the front yards and the contextual block face.

So these would be all of the properties uh adjacent to the subject property and then across the street.

Um if you pretended there wasn't a street there, all of the properties that would be touching it.

Uh so in this case, the range established along Davis Avenue is between 22.33 feet and 32 feet.

And the applicant is requesting a 2.75 foot variance from the required front yard setback.

Uh and then I just want to note the image with the uh required yard.

Um so this is depict the required yards for this property and pretty much everywhere that's red is not buildable area.

Uh so staff is recommending approval.

Uh we find this is a reasonable deviation um as this is a corner lot that's an irregular shape and the required front yards are are unreasonably restricting the use of the property.

Uh staff also finds the require request is uh extremely modest with only 2.75 feet of the structure encroaching into the front yard.

Um I'm happy to answer any questions at this time.

Questions for staff?

Okay, let's move on to the applicant.

Hi.

Um's Greg Olving.

I'm uh the architect for Jody Rubenstein here, and uh good evening to you all.

Thank you for taking your time out of your lives to mediate these zoning hearings.

Anyway, um what I wanted to say was it's pretty short and sweet here is that Rachel summed up everything we've been talking about when we started here.

And uh this is a very small project, and if allowed, you know, it provides Jody and her family logical and needed pragmatic space for daily family function.

She's tried to make this mudroom addition as unimposing as possible.

And while attempting to maintain the contextual block face and respecting the surrounding character and look of the neighborhood, I think she's we're we're trying to get that in there as as as as as as minimally as possible.

And that's basically it.

So I don't need five minutes.

So thank you.

Um questions for the applicant.

Okay, do we have any uh public speakers for this?

Okay.

Uh let's move on to board deliberations.

Do we have any thoughts on this?

Just in the nature of how this lot is and how obstructive the two front yards are.

Um the fact that what they want to do is is so minimal and attempt to fit within the space that they are allowed as small as it is.

Um I fully agree with the staff's recommendation for this.

Are there any other opinions or thoughts?

Do I have a motion?

I would like to make a motion to approve um the request for a variance based off staff's recommendation.

Can I have a second?

I second that motion.

All in favor say aye.

Aye.

Aye.

All opposed, same sign.

Five in favor, none opposed.

The motion passes.

Thank you all so much.

We appreciate that.

Thank you.

Okay, so we have um I guess we have uh uh item number four and five at the same time.

Do we split that or do we do it all the same?

So we're gonna make one presentation for for both cases.

Um, but they would they will need to be two different um motions when you go to make a decision because they're two different requests with two different sets of criteria.

Uh, one is a special exception and one is a variance.

Um, but for presentation and purposes, we're going to present them together.

Thank you.

Um BZA 2026 001, 1030 cross drive is a public hearing in consideration of a request for a special exception for an after-the-fact fence on a corner lot zoned R8, and then BZA 2026 000 two, 1030 cross drive is a public hearing in consideration of a request for a variance for an after-the-fact structure in the required secondary front yard.

Good evening, members of the Board of Zoning Appeals.

My name is Sean Killian, and I'm here to present 1030 cross for the variance and special exception request.

Uh, just some background.

We're going to do a brief summary of the property, um, give you some background information as well as the proposal and then the variance and then special exception request, and then we're going to go into staff's recommendation for both the variance and special exception request.

So the two requests for each tonight is a variance to maintain an accessory structure within the required secondary yard, and then the special exception is to maintain a six-foot privacy fence along the secondary front property line.

The key elements of tonight's discussion is secondary front yards and then structures within these required yards.

Some background information.

This property is zoned R8 residential.

It's surrounded by similar one and two-story single unit dwellings.

Originally there was a four-foot open fence that was on the property previously that the applicants replaced with the current fence.

And the current accessory structure as it sits is on top of an existing grade patio.

For the proposed accessory structure, it's a 256 square foot structure measuring eight foot to the eaves and is 10 feet tall to the tip of the roof.

And once again, it's over the existing footprint of the deck.

For the variants, they are requ the required setback for the secondary front yard is 25.20 feet, and they are requesting a setback of 0.00 square feet.

The relief requested would be 25.20 square feet.

And then due to this being a corner lot, it has two front yards with Cross Drive as the primary front and Bayless Drive as the secondary front.

And just a note for the board that upon approval of said variance, this would reduce the on the contextual block face, the secondary front yard setback for all adjacent properties to zero feet.

So any future uh project in case a neighbor comes in, if this is approved, will have a zero foot uh secondary front.

For the special exception request, uh the required setback is 13 feet, and that is set as half the distance from the uh secondary front property line, and that's determined based on the contextual block face and the orientation of the neighboring properties, which are primary fronts, which is what deems this larger setback.

Uh the setback they're requesting is zero feet to be right along the secondary front property line.

So therefore the relief is 13 feet.

And then the area on there is where would be the required setback in the fenceable area.

Um there is some conditions upon your approval of said variance and special exception.

A portion of the proposed secondary, sorry, of the proposed six-foot fence lies with the public right-of-way.

That's at that southwest corner closer to the neighbor.

Um they would need to apply for an encroachment upon approval of the special exception in order to maintain the fence in its current position.

And then a portion of the accessory structure, as you can see from the photo, is a slight overhang.

Um that can be approved as an encroachment at the admin level, and but they would have to get approval for that if the variance is approved.

Uh staff is recommending denial for the variance.

Um it does not meet the definition of variance, and then each of the subsections as well.

And staff is also recommending denial of the special exception as it does not meet the special exception criteria.

Thank you.

Are there any questions for staff?

Yes.

Could we go back to that picture?

Um I think it was the first picture where you showed the the structure.

Looking over in the uh structure?

Yeah.

That one?

Right.

So is that right in front of the the front door or is that?

No.

So the fence basically goes along as you can see on um you get the side door.

Yeah.

So like there's the plat, which is um it's set about halfway behind the primary front building wall and in between the uh corner right there.

So it's it it it is set back behind the primary front building wall.

So the only relief they're requesting would be from the secondary front yard requirement.

And then do we have any info on on Bayless Drive, the other houses adjacent?

You know, are they also their side yards are kind of facing Bayless Drive, or are a lot of the fronts?

So they're primary fronts.

They're primary fronts.

And that's what uh dictates that increase that back for the fence.

Could you go to the drawing where you show the uh the hatched area that is the fence, the fenceable?

Okay.

Yeah.

So that that uh the red area is where they're allowed to fence in with a six-foot privacy fence.

Yeah, by right, yeah.

So in order to comply with uh by right, they would need to move their fence uh what, thirteen feet?

That's correct.

Okay.

I believe we mentioned there's fencing that is also in the public right-of-way.

Can you show me where that's so if you look right at the corner where you'll see that retaining wall just north of the B and Bayless, you'll see a portion of the fence that delineates to the right of that dark blue line.

The dark blue line is the property line, so it's about uh one foot and two inches off of the property line.

And is this because the like the fence is square but the lot isn't?

Uh the applicant when they submitted said that they did a direct replacement of the previously existing four foot fence, which had been there previously, which is in that exact same position.

So for that not to be on They would need to move that another foot, roughly, is that what you're saying?

To be ordered to be on their property.

Yes, ma'am.

Yeah.

Um so therefore they would need to request an encroachment to allow a fence in the public right-of-way, but they needed a zoning to sign off on it first in terms of the special exception.

Because that would be the hardest set of relief prior to the encross.

Right.

Thank you.

No problem.

Uh Ms.

Bowman has a question.

Yes, thank you, Chair.

Thank you, temporary chair.

Okay.

Um if the current fence, the new fence was replaced with a four-foot fence, would it be in compliance?

It would be in compliance, but it would still be located within the public right of way.

So a four-foot one key.

Yes, uh, yes, ma'am.

Because a four-foot open fence is allowed as a permitted obstruction within any required yard.

It's the fact that it's closed and it's six foot, which is what triggers the half the distance.

So if it's closed in four foot, it would and it was not encroaching on the public right of way, it would be in compliant.

So it would need to be open, ma'am.

At least 50-50% open, yeah.

That's what triggers that.

Okay.

Okay.

And then what if the encroachment requirements for or what side what is the requirement for a side yard tent?

Six foot side yard tent.

So for the side yard, it as you can see by the fence by the area that's on the screen.

Um they can have in in their side yard.

It's just the fact that it's a corner lot that that's what it allows the increased setback because of the of the um neighbors having primary fronts.

That's what gives gives this larger setback.

If this was a standard lot, they would just have to make sure they would be beyond that front building wall.

Because it's a corner lot, that's what triggers the additional 13 feet as the setback.

Okay.

Thank you.

No problem.

Okay.

If there are no other questions for city staff.

Sorry, just a clarification on the last uh last answer.

Um if it was a side yard, it would be it would have to be kind of flush with what what boundary?

In terms of the side facing the cross, or in terms of what if this was an in an interior lot where it had a standard front, two sides and a rear, they could go up to the property line.

Um but since it's a corner lot, that's what causes the fence to be pushed back.

And I would I would just add to um the the 13-foot setback is required because the properties or two of the properties across Bayless Street have their primary fronts facing the secondary front.

If it was all secondary fronts facing this secondary front, then the fence could be two feet from the property line.

Okay.

Are there any other questions for staff?

Let's move on to the applicant.

Go ahead and is it on?

Okay, thanks.

Hi, John May Flipdown.

I'm the owner of 1030, and my wife Tracy and I both live there.

Uh Mr.

Chairman, members of the board, thank you for hearing us.

Uh staff, Mary, Luke, thanks for walking us through this.

I know we didn't understand it.

It took a while to get here.

Um we have a presentation.

I'll go through it.

Um request slide, please.

Or like sorry, too many years in the military slide.

All right, thanks.

This is dangerous.

All right.

So variously existing gazebo.

I've got 10 years on there.

I've lived in the neighborhood 11 years.

I miscalculated I moved two years in.

So it's actually only been there for about nine years.

Uh special exception for the six-foot fence, both in a secondary front yard.

And I'll cover the property constraints listed there.

There is a corner lot.

The southern yard is sodden.

Uh limited usable space and topography constraints.

Uh the gazebo was built on the existing deck that was there when I moved in.

Uh I've asked neighbors, is deck had been there for about 20 years.

I wanted to build a gazebo.

I searched the code.

I found the word gazebo in at one time at that time, it said the gazebo isn't allowed, permissible auxiliary structure.

Uh and a permit's not required for an auxiliary structure under 256 feet.

I did not know what a secondary front yard was.

I missed that.

I had no idea.

It was a new concept to me.

I forget I had a front yard and a side yard.

There had been several tents, temporary structures on there prior to this.

We used for shade and for outdoor dining.

They'd all collapsed due to windstorms or snowloads.

And so I wanted to build a gazebo.

I believe it's the only suitable site, and there'll be no complaints for tent for the entire time it's been there.

This was a new complaint that showed up, and I'll cover that later in the presentation.

The southern yard sodden, and in your packet, I think on page 31, there's actually a better picture of this, has one of our dogs in it.

If I looked across the street, there's a low spot in a neighbor's yard, we believe there's an underground spring, and it flows down through where that yard is.

You'll see the topography, how it drops off.

That trampoline is about this high, and it's sunk in there.

And the one with the long grass, all that grass was cut at the previous time, and that's to show how that stays constantly wet and soldered into some kind of underground water there.

On the right there by the little red table, you'll see we had to put in mulch and flagstones just for our daughters to be able to get on and off the trampoline without getting their feet wet and bringing them out in the house.

Nobody wants that.

So that part of the yard was not a good spot to build the gazebo.

The privacy and sight lines, you'll see I put a little pan colored dot there and showed it on the site there.

If you stand on that spot, you can see if you look out towards my neighbors there, Hugh and Jen at 1329.

You are staring right into their living room.

You're up above a six-foot fence level, looking right in their windows.

The far fence straight out there, that middle lat, I measured it this morning.

It's 32 inches off the ground.

And that's about level with the ground level.

So if you had a gazebo there in that structure, if I took out those bushes and put that in the only other flat spot that did not have deck on it, I would be standing there just sitting there looking over into my neighbor's backyard.

When I moved in, that was a four-foot fence.

And when my neighbors there moved in, we built a six-foot fence together to give them more privacy because it was just with the the way the terrain is just looking right in there.

I want to cover the anonymous complaint timeline here quickly.

This was the original complaint that was put in in October of 2024.

It was put in about two weeks after my wife and I had a party, told everyone we were getting married.

The complaint was put in as if it came from me.

I say that because I know zoning is complaint driven.

Um I called up not 311 because I said, hey, your complaint's being actioned.

I said, What complaint?

Uh they said the one you put in.

This was put in with my phone number, my email, my address.

Um I find it's hilarious it was 24 September.

Sorry, 24 October, and a complaint about colored LED lights.

I encourage you to come see our neighborhood on Halloween.

Every house in a neighborhood has large colored LED lights and displays.

We believe this was somebody trying to harass us with the complaint.

Uh the complaint was originally the gazebo was not built built without a permit.

No permits required, auxiliary structure of less than 256 feet.

Um I did not know about the secondary front yard.

The fence was installed in June.

There was no issue.

We we checked in with when we were told the prior code complaint was unfounded, the lights were unfounded, and then the fence complaint was submitted in August.

Um we believe someone is actually trying to use the zoning thing here to harass us.

We're not sure why.

Uh the fence, I'll jump to that.

This is the before and after.

That old fence, yes, it is nine inches off in that one corner.

Um my lot plot from when I purchased the fence shows that.

Uh, my neighbor, who's actually a city code inspector, said he's lived there 20 years, said yes, that fence has been there.

That's what was installed originally.

Uh I forget who it was, asked the question.

Is the lot square and the fence not?

Yeah.

Bayless Road, cross drive kind of slowly curves in on it and moves closer to it.

Oh, I thought that was a fire alarm.

Uh the fence replacement, it replaced a 24-year-old four-foot fence with falling down.

This this is a 2017 plot, shows the locations unmoved.

Uh we increased it to six feet behind the house for privacy, and we put adjustable louvers in the front part of it that can be open or closed.

So we weren't creating this whole big wall effect.

Uh, similar character of the neighborhood, the red dots, my house is a little hard.

The red dots are other corner lots with six-foot fences in the required secondary front yard.

All of them except for one pre-existed in me.

Uh, that's why when I just wanted to replace the fence, I was like, well, every other corner lot's got these six foot fences.

I don't see a problem with it.

Let me put that up there.

Uh privacy and sight lines.

Um, you don't take pictures going to show how people can look in your yard, so I apologize for the family photos.

This is what the old four-foot fence is based on topography.

Is anyone can just look in and oversee the entire yard.

I measured it today.

Uh, where you see the planter in the upper right hand picture.

That bottom of that planter is 30 inches higher than if you go 13 feet the other way.

Then if you go three feet the other way, the fence drops off so much.

The neighborhood benefits.

Okay.

We have Sir Wyond your five minutes.

I'm sorry, Sure.

There was two.

I prepared for two separate items on a docket.

I request permission to be able to finish, please.

Or if not, I'll go to questions.

Try to wrap things up.

I will.

We have two dogs.

They used to bark and chase everyone the moment they could see them, they don't do it anymore.

Neighbors have commented that's good.

We planted our vitae to soften it.

The topography, if it's only a four-foot fence, the measure won't be no fence.

People can just look over it straight into the into the other.

My neighbors supported it to include the neighbor right here 1329 and a note letter of support.

They say they see no impact on their light and space.

And that's it.

Thank you very much.

I apologize for going over.

Okay.

Do we have any questions for the applicant?

Can you tell me again how long has the you call it a gazebo?

I call it a gazebo, yes.

Um the gazebo, I moved in in 2017 in July, and I built that in December, January.

I built it myself on the existing deck.

And then no one had ever said anything except come over and say that it.

Any other questions for the applicant?

Okay.

Do we have any uh public speakers on this?

Okay, let's move to board deliberations.

What are we going to deliberate first?

Are we talking about the variance to the structure or the I think we can talk on I don't know like I I agree.

Uh let's passively let's let's do um how about the structure first and then we'll deliberate on the fence.

Okay, thank you.

Miss Bowman.

Yeah, thank you very much.

I'm curious to hear from staff regarding the um vivo requirement that were in place 10 years ago.

Was there a permit required 10 years ago?

Or 2018.

Yeah.

Eight years ago, yeah.

So the requirement for uh a building permit is determined by the department of code administration.

Um I believe that a permit is would have been required.

Um sorry, my sorry.

The the requirement for uh a building permit um is determined by the Department of Code Administration.

Um they did put in their comments that a permit is required for a gazebo.

I am not aware of if the their requirements have changed.

I don't believe that they have that I'm aware of.

Um but they did say that this the structure would require a a building permit.

Um today.

Today it does.

I'm not sure.

I can't speak to that.

Um but our requirements actually have loosened up a little bit on some of our accessory structures that are allowed in required secondary front yards since 2018.

This particular structure doesn't meet the requirements.

Um, but we do allow certain structures like open pergolas and trellises and things like that that are more open in nature, um, can be located in secondary front yards.

Um, and that was a change since 2018, 2018.

Thank you.

Um if there's no other questions, I'd like to ask staff a question about the uh impact to the uh I guess it's the required setback for the rest of the block face.

You mentioned something about that, and I didn't really quite get it all.

So um the reason we brought this up is uh so this secondary front yard is based on the contextual block face.

So that's if we take all the structures within the adjacent properties, and that determines the front yard setback that all adjacent properties can use.

So if there's a variance is approved, basically any property within the contextual block face of 1030 cross on Bayless Drive will have a front yard setback of zero feet and can build whether it's an accessory structure or in enclosed addition, basically up to the property line.

Because that would set the standard for the contextual block face, because it's based on a range.

And so if this property has a zero foot secondary front yard setback due to the structure, that means all the adjacent properties also have a secondary or primary front yard setback of zero feet.

And this the secondaries, secondary front yard condition in sets a precedent for the primary front.

And vice versa, I guess.

Because since it's a secondary front, it will also affect the primary fronts of the adjacent properties as well, because they are within that contextual block face of that secondary front yard.

So if we approve this, then everyone on that block face could build without asking for a variance.

Sorry.

Basically, to the sidewalk.

Correct.

We're going to put the map back up to show you which properties would be affected.

But it's basically any property that has a front yard that is adjacent to the applicant's presentation.

Adjacent to their secondary front yard, which would be the property immediately across the street.

I don't have the address.

And then the, which I believe is a secondary front.

Is it not in there?

I don't know the maps in there.

And then the two the two next ones are primary fronts.

The one immediately to the north and then the one directly across.

Both of those have just finished reservations and completely maxed out their far.

So they would be unable to do that.

I have to actually sign letters of support for their variances.

So that while it would impact them, they cannot because their FAR is matched out.

That would be the Marths and the Halperns.

So there's there are three properties that I mean, maybe in their current, I don't have their FAR, but if they were to build either an addition, if they were tear down their house and build a new house, it would change the minimum of the range of the contextual block face for those three properties.

I've been on the BCA maybe May 10 months.

But any applications where somebody's actually tried to build to the property line in the front of the house that we've ever experienced, or is that more of a theoretical concern that you know one of the two neighbors is going to try to build a front addition to the to the sidewalk in the front?

So I would say that we don't see a lot of variance requests for that type of a project.

But we do have blocks where there are minimum setbacks that are existing, whether it was a house that was built before the current zoning requirements, where the houses are quite close to the front property lines.

Um it can be 10 feet, 5 feet.

Um it's that's not uncommon to see in in some of the neighborhoods where somebody can then bring the house further forward.

So this, I mean, sometimes it kind of makes sense because most of the houses are, you know, five, ten feet from the front property line.

Um in this situation, it would be creating something that's quite different than the rest of the character of the area.

Which is why we wanted to point that out.

Are there any corrections staff would suggest to the landowners in terms of to not have this classified as a gazebo to have it?

So just some other structure that also is an outdoor, you know, no walls kind of structure that.

Yes.

Um like we stated earlier, um, we do allow as a permitted obstruction or pergola if this was and this could be also done with the admin encroachment.

If the roof was opened to 80 percent open, it could be allowed in this exact same spot by right.

And then if it would be, you would still have to get the admin encroachment for the architectural feature of the overhang, but it would be allowed by right.

It's the fact that it doesn't meet the definition of a pergola is where we get into the issue of it having to meet the contextual block face setback.

I if I if I can, sorry.

When I no, sorry.

Okay, that's right.

Um, gone, Ms.

Mallen.

Thank you.

Um I knew there were a number of letters that support or the um specialist section and variant.

One of the staff members, I call it that I don't remember who said that there are two lot or two homes basing that secondary front line.

Did we receive letters in support from both two homeowners, flat owners?

Yeah, I believe we do have one from the adjacent neighbor, um, right next door.

Um and then we do have an uh another couple that the applicant did submit, which are all within the contextual block face of the proposal.

That would be the howperns and uh Miss Peggy, I can't remember her last name, also submitted one from cross.

And those are the two homes that are facing that secondary front lot.

There's the one ma'am, and then there's the one that the applicant just stated, which is on cross.

Okay.

Thank you.

Do we have any information on the person who complained at all or is it just the landowner's complaint that's the same?

So 311 complaints are submitted anonymously.

Um they come to staff and then we do an inspection of the property to make sure that it meets up to the code, and then we usually talk to the and we issue a citation, or in this case um offer the applicant a chance to apply, and then they can work with staff.

So the unless unless you had a further question.

Okay.

Uh so the applicant was talking about the kind of hybrid nature of the forward section of that of the fence.

In the regulation, how do we how do we consider that as if it's opened, as if it's closed?

So the rule is that it has to be at least 50% open, um, where you can basically see through the actual fence itself.

Um we try to prevent like a walling effect along property lines.

Right, but I the kind of convertible part of the fence seems like the upper maybe two feet can transition from a closed to an open state.

How do we treat that?

Uh do we treat that like it's a six-foot closed fence or do we treat it like it's something else?

I think we have um typically the zoning ordinance requires us to treat things like the as most restrictive.

Um so because it can be closed, um, we don't have any way of you know requiring them to keep it open.

Um I think we would say that it has the ability to be uh a closed closed fence.

Um and also um like once you get above four feet, whether it's open or closed, is sort of it's not really still can't comply unless I guess you had the top 50 percent open, which would be sort of um unusable.

I mean it wouldn't really serve the purpose of a six-foot fence if the whole top was a 50 percent open.

Oh okay, not to the fence conversation is good, but we were going to try to decide on the uh the structure first, which is the variance.

So let's just stick with the variance and let's get to a conclusion on the variance.

And before we move on to the fence, the special exemption, let's let's take a vote on the variant of the the structure.

So uh I don't we don't need a vote right now, but let's continue deliberations, get all of our questions answered, and let's just do the structure first.

I think that's what Mr.

Yeah.

Yes.

Could uh staff put up the checklist for the variants?

Thanks.

And maybe embiggin it.

So now this is one of these situations where I'm I'm kind of gathering from the board.

Um I I mean I I know myself, I feel like I want to get to yes.

However, um in order for us to get to yes, we need to go through this checklist and we need to find reasons and document those reasons why each one of those things could be yes and not no.

So if we're thinking that way, we need to do that.

We need to make sure it's documented because we're not if if we're going to approve this, we are not going to just agree with staff.

And so therefore, you know, uh we need to document why we're thinking the way we're thinking, and then in addition to that, uh we need to make sure that it gets into the meeting minutes for any future say the you know, we say we uh decide yes, this meets all of the criteria, and but then the city still doesn't like that and they want to take the applicant to court because they don't like our decision.

Um we need to make sure that our decision is clear that why we go against staff and with the reasons and rationale we have for doing so if we choose to do that.

So um with that, would before we go down that path, would everybody like to voice their opinion on the variance, just the variance.

What are we thinking?

I have a question for the applicant.

Oh, absolutely.

You can ask the applicant the question.

Um I heard that if I understood correctly.

You do have an option of leaving the structure where it is if the roof has an 80% open um whatever.

Yeah, that's that something that you have considered and have dismissed, or have you really not considered it?

I I deliberate I I have a personal dislike for pergolas, I think they're useless structures.

When I went through the code and looked, gazebo was permitted with no restrictions.

There's a lot of restrictions about perglos.

There's height, there's amount of openness, there's amount of vines.

Back when I looked for this, it just said gazebos were permitted.

And so I built a plan and I and I built a gazebo.

I I it would be better than nothing, but it would not serve the purpose it has where it protects my family from shade and rain, and we can sit out there and we can dine.

Um that that would be better than nothing, but I've otherwise we don't have the front porch to sit on that.

Understood.

Um, you put up a really good question, and I'd like to ask staff.

If they attach this gazebo to their house, would it be considered a front front would it be considered a porch and then therefore be a different Yes.

So a front an open front porch could be constructed as a permitted obstruction in a required front yard.

Um those can be ten feet in depth.

Um let me just double check.

Um it's ten feet in depth, um, I believe.

Yes, ten feet in depth and can't reduce this the front set back to less than ten feet.

Right.

Correct.

Sorry, could we just go back to the chart really quick?

Sure.

Could staff just offer their their explanation for the no's and boxes three and four?

Sure, for three and four.

That would be no person dependent.

So the reason we that is a no is because the property was like the applicant said acquired in good faith, the deck was previously existing, but they created the own hardship that they are coming for the variants for, because they constructed the sensory structure.

It's not like it's usually for a variance, and when there's a hardship, usually the hardship is that the current property has it, and they of course therefore need to have this relief in order to be alleviated from the hardship.

This was constructed, which created the hardship.

And then for the next section, um in terms of a detriment to the uh the adjacent property and nearby properties in the proximity that that we we can go into the nature that by reducing the secondary front yard setback to zero feet, we're opening a president of taking away from what the city has as front yards, which are supposed to be open areas.

Um that's why we usually have a required front yard setback, and then by reducing it to zero feet, we're basically opening the whole contextual block base to take away from the true definition of a front open yard.

Um I suppose how does staff reconcile that with the fact that the adjacent property owners have have letters and support?

I mean, I would say that I mean it's great that you have your current neighbor's support.

Um we're sort of looking at it from more of a perspective of the character of uh sort of corner lots in general throughout the city.

Um there's no guarantee that the neighbor that's there today will be the neighbor that's there um you know tomorrow um and that they'll feel the same.

So while the neighborhood support is is great, um, you know, we do typically limit the types of structures that are permitted in required front yards um so that they do maintain that sort of open um character that's that's similar in most corner lots throughout the city.

Is there any such thing as a statute of limitations for something like this?

I mean that it's been there for the unfortunately there's there's not, um at least for zoning.

Um we are complaint driven, so um, because we only have two inspectors for the the entire city.

So when we receive a complaint, um we do have to follow up on that sort of regardless of um the length of time that it's been there.

Thank you.

I suppose procedural question, would the city attorney's office, you know, are they by mandate they have to then take on the appeal if it's approved, or could they decide, you know, no, it's not worth it in this case, because that's a decision that's made by the city attorney's office and our director.

I would also add, I mean, not that we have um have any um letters of opposition, but it's also an any other aggrieved party could appeal it to um to circuit court as well.

I I just like to say that you know, my heart wants to say yes uh to this, but you know, something that's um that was out of order to begin with, but was said by one of the applicants um talking about not having a front porch, but the a porch attached to the house would have been probably the right solution for this house that would have complied and and been in the and given the the uh the the applicants the that um same sort of effect that the gazebo out hanging over the sidewalk has and you know there was there was one other case that came through um a number of years back.

I don't know if uh you guys were on the board at the time, but it was almost this exact same thing, and it um the board decided no.

Um it had already been built.

It was a this beautiful gazebo, much like this one.

Uh the structure looks amazing.

Um very well built.

But the board came back on that one and said no as well.

And um, you know, I'm I I think for me, I'm gonna have a hard time getting to yes uh considering you know some of my current thoughts.

So I I'd like to hear from oh, Miss Bauman, you have a hand up.

Yeah, thanks.

I I just have a couple of quick questions, and I I couldn't find the information in the application, it might be there.

Um how many square feet is this for VIBO?

It's uh 256 square feet.

And is there electrical in the acoustic bot?

That is correct.

I think I would also echo uh Mr.

Foley's sentiment that like as a matter of like personal feeling or policy, I I want to get to yes, but I I think I'd find it uh difficult given the the checklist that we have to run down and satisfy.

Um I agree that the structure you know it seems to be you know well built, and certainly given the alternative of like uh you know temporary things like tents and and whatever they also as a alternative, they have their own drawbacks to to neighborhood feel and whatnot to say nothing of their usability.

Uh but yeah.

Um I also think the the precedent that was set in whatever case that was years back too is is influential here.

You know, it's a case that the board probably won't get again for a number of years unless this is something that we do end up saying yes for, in which we could have many cases like this, and we would have to go through the same justification every time as to why we think that is yes, and um it gets to the point then of maybe even picking and choosing based upon what applicants say, and again I agree it is very hard getting to yes for a lot of these as much as I want to.

It is the fact that the precedent exists and also the fact that it would be a substantial change for what just these particular homes might be experiencing, but that is something that could have a ripple effects later on in future years of the board as well.

I I'm leaning yes based on the information we have.

Um really, as landowner, you know, spoke about how we looked into the regulations and a gazebo ten years ago wasn't part of what needed permitting.

And here, you know, I have full confidence in the board that if we get a case down the line that that's similar where there's a landowner who just ignored it, never looked at it, and it was somewhere where you know neighbors on both sides are complaining, there's an actual risk that the neighbor next door is going to try to build to the sidewalk in the front.

You know, I think that would be somewhat different for me.

And I think we can make those individualized decisions because yes, I understand the concept of precedent at a board meeting, but it it's also more you know, I think having an equitable decision in this case and for you know voluntary zoning board uh is more in line with what you know I I think of my role here is to do versus you know an actual court of law where there are written opinions.

I mean us having cases previously that have similar fact patterns that went the other way.

I mean us having cases previously that have similar fact patterns that went the other way, well, there you know other people who spoke in opposition and things of that nature versus here, you know, we saw the pictures where four foot fence, you can pretty much look into your neighbor's living room.

It doesn't seem like anyone has a real problem with it other than you know, somebody submitted this complaint, and then there's these theoretical concerns, but you know, what I you know it's not just a decision to say no, it's it's effectively fining the landowners thousands of dollars to take this down to move their fence to incur those costs when you know if if I had a board of fellow community members or neighbors, I would hope they don't make that decision for me.

And I would also encourage the city attorney's office to, you know, they'll make the decision they want to make, and you may have to be at an appeal level of circuit court, but you know, maybe they won't.

And if it's I I understand that a random person can also file that appeal in circuit court, but then they're gonna have to go through the cost of doing that.

And if it's you know, like you said, something where they're trying to harass you, or do they actually care that your fence is six feet tall, then maybe they'll go ahead with it.

If they don't, and they're just trying to use this to you know, point out a technicality that your fence is six feet, and you have gazebo there that's been there ten years that's never apparently had an issue, you know.

I think equity should play more of a role in this case than you know, strictly the checklist.

And you may have a harder appeal because of that, but then that's at least one step further in and what I think is the right decision at the end of the day.

Ms.

Bauman.

Yeah, thank you.

And I I uh agree, Mr.

Chappell, that we all want to get the F.

We don't want to um we we all want to help our neighbors get the F.

But I think I'm gonna just focus on the um the ADU at this point.

The uh what I heard staff say is that there were requirements back in 2018 for gazebos, and that the requirements for gazebos today are actually left um are are actually left than what they were in 2018.

And so before making a decision based on anecdotal information about a search and gazebos were allowed, I'd rather have the facts presented on that case before I would rely on that.

Um and I I just believe that staff gave us that information.

Um and I think that the variance in the tape is just so significant that we I'm having a hard time getting to get on a number of those requirements within our role as the uh board of zoning appeal, and our responsibility is to be all owners in the community, and so enforcing the rule that are presented in a fair and reasonable manner that protect all homeowners, um those that are neighbors, including those who are interested in requesting the variant.

So that's my perspective, and I just can't get the F on the on the ADU variant.

Thank you, Ms.

Bauman.

Mr.

Patel.

I am very easily swayed, but I have not been swayed just yet.

If you would like my vote to go to yes, because right now I think I am with Ms.

Bauman, as I expressed earlier, I am probably on a no, but I think I'm on the fence.

So if you want to push me one way or the other.

We're not voting on that one yet.

No, no, we're not voting on the fence yet.

I am listening.

No, I really do think if if the decision is who has to, you know, in either case, landowner will have to incur costs if they choose to appeal this or not and take down their fence.

You know, I'd rather they go into that courtroom proceeding with the backing of the board as an additional piece for them to use where I just haven't heard anything of uh very bluntly why this matters, why why this is an issue.

And I get that, you know, equal application of the statute around around the city is important.

And I think if we face one of those cases where somebody was truly, and I come as balanced point.

I mean, compared to the last two cases, this one has you know 13 feet and 20 feet versus versus a yard.

But this is also a case where they're not looking to build that new extension to get to 20 feet.

This was all I think the fence and those lines are already there when you bought it, and then it was yeah, reconstructing the fence to six feet instead of four with consulting his neighbor who also wanted that six-foot fence for privacy, you know, the gazebo, which you know, and I I remember one of our previous hearings.

I have a uh conceptually a difficult time thinking of a gazebo as not also preserving open space, air and light, where it's open on four sides.

It's it's an outdoor space.

And you know, I understand the ordinance may have a definition of a pergolo being 80% open, but if what we're looking to do as a as a city is preserve and make outdoor spaces usable with air, light, and and and whatnot.

I don't think a gazebo, I can't actually think of why gazebo doesn't fit that other than you know it yes, it it has the roof fully conceived on that, but in practice.

That's probably using the outdoor space more with a gazebo than a pergola that you know uh as some have said, maybe maybe somewhat useless.

Um, Mr.

Patel, are you asking city staff to go and reclassify this as open space?

Is that what you're asking?

If if that's you know, city staff is willing to do that.

And so just to be clear, the um R8 zone does not have an open space requirement.

Oh, it doesn't.

No, only RM and RB have open space requirements.

Okay.

There you go.

I I just say I liked where you're going with it.

That's it, just it sounded really good.

I yeah, I'm just having trouble seeing what the practical impact of of keeping the structure up is.

I I understand all the theoretical impacts of you know, we want to we want to have a set set of ordinances for the entire city, and I think when we get those decisions where somebody's really breaking the law without asking and building something without asking, and then you know, affecting their neighbors and making their community worse, I get why we would step in and say no.

But in a case where it's been there 10 years, um, you know, and I understand the city's on, you know, may not have the best resources to go around and enforce every single house.

It's just that's the part that feels weird is we're the ones sitting here going, well, we're gonna single you out because somebody complained now, and you know, unfortunately there was that gazebo and then the fence, and now we're gonna make you go through the hassle of you know getting the variance and then having to go through an appeal.

Um that's what feels weird to me.

I would feel better about a no or be easier in my head to get to a no if I saw an actual negative practical impact of what happened on the property.

I I'm just gonna I really really appreciate your thought process and absolutely in your court.

Um but here's the awful but I don't know that I can refute this information.

Um what is the my bottom line here that makes me absolutely crazy is the fact that it has been around for almost 10 years.

It's an anonymous complaint.

The only person that wins here is that person that decided to anonymously call in a 311 issue.

Um based on the information that we've seen in writing from the adjacent neighbors, they don't have an issue with it.

Um I I just for the record, I think it's something that needs to be considered in the um final decision of everyone in conjunction with what we have to do based on the rules.

I am so sorry you're going through this.

Okay, so I hear I hear two yeses.

I hear a no.

Yeah, I'm undecided still.

What what else do we have here?

I just want to make sure I'm understanding the um the 2018 versus now distinction.

It's is staff with a high degree of certainty that it would have required a building permit at the time.

I can't say of knowing this.

To building permit requirements.

Um those are completely separate from zoning requirements.

There are lots of structures um and things in the zoning ordinance that do not require a building permit, but you're still required to comply with zoning.

Um I was just going back and looking at the accessory structure section, which is a very complicated section and is on our list of sections to be um like cleaned up and clarified to make it easier to understand.

But then that's just sort of saying like these are the things you can have on your property with your residents.

And it lists things like garages and greenhouses and tennis courts and swimming pools and fences and walls and guest houses and all these different things.

Then the next part of that section goes into things that are permitted obstructions.

So there's things that are permitted on your lot, and then there are but they have to comply with the zoning ordinance.

And then there are things that are specifically called out as these are also accessory buildings uses and structures that we allow in some of your required yards.

And it breaks it out into primary front yards, things that are so basically things that are allowed anywhere.

So if it's allowed in your primary front yard, you can basically do it anywhere on your lot.

Then we say, well, these things aren't okay in your primary front yard, but they're okay in your secondary front yard, which is where the pergolas and trellises actually no perk goes pergolas and trellises are allowed anywhere.

And then we have certain things that are allowed only in your second in your side and rear yards.

So we kind of break out some requirements about like where different types of structures are permitted in a required yard.

A gazebo is not listed anywhere as a permitted obstruction.

It's a permitted accessory structure on your lot in compliance with the zoning requirement, all the other zoning requirements, like the set this regular setbacks for like an addition.

So it's not listed and it was not listed in 2018 as a permitted obstruction.

Okay, thanks.

I think uh one of the things I'm trying to get at with the in the past uh building permit requirement is like a degree of clean-handedness uh to use an equity court's term.

Um is the applicant um you know operating on the information at the time and correct?

Are they arriving at a like good faith but wrong conclusion?

That's just what I'm trying to do.

And maybe neither of us are so I can just just like from you know, we get phone calls about questions from and it's it is very confusing, I will say, for for citizens to know.

Like they call the city, they ask a specific question of a specific department, and that department may say, nope, no permits required and hang up.

They may not ask any additional questions or say, oh, you need to talk to zoning, or you need to talk to transportation and environmental services, or oh, you're in the historic district.

It is often um based on the question that's asked and like the very narrow scope that that person might answer it in.

Unfortunately.

I mean that if I'm being asked to be a good idea.

Human factors, yeah.

Okay.

So I I can't say what you know who the applicant called in 2018 or who he talked to.

Um we talked with code administration, they said that a permit was required, and I don't believe that those require requirements have changed that for this structure a um a permit was required.

Okay, thank you.

I have just a technical question, just out of curiosity.

If the roof line connected to the actual house, how would that change it?

Would it make it a porch?

Would it what would be different then?

So it would probably be considered a porch, um, but it would be deeper than what is a permitted obstruction, so it would still need to comply with the setback.

Okay.

Um so it wouldn't really change a whole lot.

Okay.

All right.

So we have gone around and around on the variance.

We still have the fence to do deliberate on.

So we haven't talked about the fence much, a little bit.

Um where are we at?

Do I have a motion?

Do you Mr.

Foley, could I interject one thing before you um ask for a motion?

Um I would just advise the board and the applicant that if the board um if the board were to take an action tonight that denies your variance request, so if you fail to get a uh four affirmative votes, the variance would be denied.

Um you would not be able to come back to the board um for a full year.

Um just so if there's anything that you think that you might want to change about the case that might you could potentially offer a deferral.

That's a very good point.

So let me go back to the applicant.

Um Mr.

Brittle.

John?

John?

Okay, great.

Um hearing everything, hearing that you are probably looking at a no, that's what I'm kind of gathering from what everybody said, um, which means you'll be denied and you would have a full gear to before you could reapply for any reason um for this particular uh structure.

Which means you'll be denied and you would have a full year to before you could reapply for any reason for this particular structure.

Do you have any reasons why you would want to defer this?

Can you think of anything that you might want to change or do differently or yes, sir?

I'd like to defer to clarify the point on whether a permit is required or not when the original anonymous 311 was put in.

It was sent to code enforcement because uh if you look at my presentation, the complaint was it was built without a permit.

Code enforcement said at that point no permit was required and kicked it over to zoning.

And so I think there's a disagreement on whether there's a permit required.

The 256 feet was a very precise number.

Because in my research at the time, auxiliary structures like a shed under 256 feet did not need a permit.

And that's why that was the size chosen.

So uh I I would like to to defer to clarify the issue with the zoning and the permit because I do not believe at this point we have the full information on that that is correct for the board.

So I I um in my experience it's been that uh you know in any situation where you're building something, you can go and get a building permit.

And that kind of helps protect you from I've been through this.

I've I've been in in you know uh similar situations, and it does you can go get a building permit for doing just about anything.

And you'll get a building building permit, and then the city will, you know, will then it's your proof that you have permission to build whatever you want to build, and they're not hard to go through.

Um I know back in that time period, in fact, all the way back to I believe I first moved to Alexandria in 2003, and I remember getting building permits back then for my house.

Uh was not a difficult process to go through.

Um so I I I am not in favor of giving you a deferral for clarifying whether you needed or should have gotten a building permit.

I might be in favor of looking at a deferral for some other reason, but not that.

Yes, sir.

Thank you.

This is uh I bought the parts, but it's basically a kit, like you go to Costco and buy and put together.

I just bought the parts myself.

And I would like to clarify that point because people go to Costco and buy gazebo's instructions like this all the time and put them up, and there's no building permit required.

Um so that that that was part of my confusion on that.

Um I I would like to do that.

Um sorry?

Do you have a point of order, Mr.

Chairman?

Uh absolutely, Mr.

Patel.

Yes, I I do think in this case, maybe the landowner may benefit or want to have his case heard with the the full board present and and chairman lew as well, given that you need the four votes to have anything approved.

And you know, we have we have six members here today, but I think in the past, if uh if the landowner requested a full board hearing, you could possibly have a deferral.

Mr.

Patel, that is an excellent reason for a deferral.

Um John, Mr.

Brittle.

Yes, sir.

I request defer for a full board, so I have a higher chance of getting four positive votes.

Okay.

So uh with that said, um I'd like to ask for a vote of the board to defer this until we can get a full board in order to hear this variance.

Okay, just for the variant.

Well, right now just the variance.

Right now we're just voting on the variance we're talking about and going to vote on this deferral for a variance.

So I heard Mr.

Patel, uh, Mr.

Pasnell, you want a motion for a deferral?

Yes, I would move for a deferral pending um the full board being present for for this uh variance.

Do we uh Ms.

Christensen?

Do you have a comment before we take a second?

Um I do just want to um make the comment is that we can never guarantee a full board.

Um so are we docketing this for the next public hearing that's available?

We're gonna docket it for the next full board.

We have done this in the past for other motions.

In fact, if I recall correctly, there was one particular case that went on probably for over a year before it got a full board.

So uh I think that if we vote on this to defer this, we will uh defer this until we have a full board.

Um so uh Mr.

Patel, you made a motion.

Do I have a second?

Second.

Second.

All in favor say aye.

Aye.

Aye.

All opposed, same sign.

With none opposed, so we are going to defer this variance, just the variance, um, until there is a full board to hear it.

As has been done in the past.

Okay.

So now let's go on to special exception.

The fence.

Who would like to start the conversation?

Yeah, I can lead off.

Uh so I understand again the intent behind the the convertible nature of of part of the fence, and for a moment I thought maybe that would have been the way to go with the rest of it to mitigate uh mitigate things.

But hearing uh staff say that it's treated as if it's in its closed state, uh that kind of undoes undoes that.

And I understand the applicant's concern around um like privacy invisibility into the yard, especially with regard to the terrain.

Um but I think we're in a spot where we can't necessarily afford to set the precedent, even though it would seem a little absurd that the other houses would put their uh front fence line right up on the on their primary front yard uh property line at six feet.

I did uh look around at some some well-known historic homes in Old Town that have fences.

And I think I I think I misremembered uh Robert Lee's dad's house and uh the Carlisle houses having taller fences um on their front sides, but the Robert Lee dad's house is uh mostly open grading and uh the Carlisle House actually dips down to probably lower than four feet um on the front.

So I thought I'd be able to make a novel point there, but uh probably not around uh historic tall fences.

Um and then also I understand the you know the temptation to to mimic where a fence was before.

Um unfortunately it seems the fence is across into the public right-of-way at the at the end of the lot.

Um I think any any support I would have for the fence would be contingent on probably moving it out of the out of the right-of-way.

Ms.

Christensen, you had a point to bring up.

Yeah, I just you you mentioned um fences in the historic district.

Um so those those actually can go through a separate process because they are historically appropriate.

Um basically the the Board of Architecture Review can waive fence height requirement um in the historic district if they deem it to be um a historically appropriate fence.

So if Robert Lee's dad builds the fence for the applicant then, maybe.

Um let me just note that so I I have been through uh quite a few fence hearings, and I have heard um I I I have heard uh I I I recall and I I just cannot remember the location of this, but I think it was someplace in Del Ray where the applicant wanted a uh a higher fence to a certain point in their yard that was needed a variance, but but she had a really good there was a significant hardship that was very easy to see, and I think even at that point staff even saw it and recommended approval for what what they were asking.

Um and then the other part of the fence they had to change because you know they had built something that wasn't supposed to be there, and they just moved it.

Um but you know, for the most part, most of these um that I've seen in the past, you know, we end up asking the applicants to modify or uh change their fence.

Um without a hardship.

So um I I want to go back to the applicant and I want to ask the applicant.

The only hardships that I heard in your presentation was privacy and security.

Privacy is not something that the city considers when they're looking at these uh types of requests.

Um security, I guess that maybe there's a little flexibility there, but uh you know, as kind of an old guy, I jump over my six-foot fence all the time when I get locked out.

So I I don't think a six-foot fence is making any more secure.

Um do you have some other hardship you could express that would help us?

I think the it's the topography that creates the hardship that in the rest of my yard, uh the four foot fence at the boundary, because my yard drops off away from the sidewalk, people on the sidewalk are elevated over and can look in, and that I have no privacy.

It's the sidewalk just looks over it.

There's no place to put it to put the six-foot fence where it if I move the option of cutting it down, I believe does not give me privacy.

There was a four-foot fence there before.

And so what if I move it, can I have to take out an apple tree?

Hold on.

Can I I just want to kind of steer steer you a little bit?

Okay.

Um stop using the word privacy.

Okay.

Because we're uh at least myself, I don't know about the other board members, but I am not going to consider anything that you mentioned about privacy.

So privacy is something that's out.

So do you can you come up with a different kind of angle that you'd like to talk to us about on why is there a hardship?

If I had to put the six-foot fence where the board recommends, where the staff recommends it, it would take out a current mature apple tree that's in the yard.

It would take it would put the terraced garden outside the gardening spot outside the fence.

Um really sure that's that's what I have is that that the part of the yard that's left fenced is that part that's either sodden, or when I use that yard, I'm just staring at my neighbor's backyards.

The hardship is really as much for my neighbors as for myself and for the peace of everyone in the neighborhood that um some very friendly loud dogs uh do not see people 400 feet down the road and bark at them the entire time that they're in visual range as they go back and through.

Uh many neighbors have commented of the peace and quiet and how this actually improved the neighborhood.

Um that's all I have for.

I I did replace the original fence.

Thank you.

Thank you.

Thank you.

Ms.

Bauman.

Is there a usable face hardship?

I can we look at the um look at the drawing again at the usable face, and if the fence is required to be moved.

Is that cutting down quite a bit of the useful faith?

So much so that it's a hardship.

Yeah.

I I believe it would take out about it.

That question was not to you.

Oh, sorry, sorry.

I thought it was.

It was to staff.

I I was also confused as well, so don't blame you there.

Um so that would the required setback would cut down the usable yard in terms of where the fence could be located.

Um that's why the fence is required to be pushed back, is because it's supposed to create a sense of openness in the front in the front yard and not create a wall effect right on the front on that secondary front property line and limit the light and air to both the sidewalk and the adjacent neighbors.

The follow-up question, if I may?

Sure.

Um and it can be for staff or for the um applicant.

So with the with the usable fade and also the um the topography, the the thought and topography.

I mean, it's some of that if you move it in, are you gonna is the is the fence gonna be sinking, basically?

Mr.

Riddle, would you like to answer that?

Um I mean what uh as a former contractor with enough concrete, no, it would not sink, but it would take out two mature trees to move it that far.

For staff, is the the recommendation that just part of the fence facing the street is four feet and the rest of the fence like in between the neighbors still six?

So if you look at the highlighted area, um if the portion behind that 13 feet could be six foot, if they were to go with the four foot, they could go right up to the uh that that property line.

It's just the fact that it's greater than four feet and it's less than fifty percent open is what triggers that additional setback.

So that back portion that um the advocate brought up for the variants in terms of like that facing the property which should be south in terms of the cardinal direction, they could keep that at six foot and then on that other property line to lot 502, which is the adjacent, they can keep that six-foot fence up to that uh front building wall and cross.

That's fine.

It's just the secondary front is where you get into the issue of we would need that either to be reduced in size and an increase in openness or be pushed back.

So the just so the rationale for it is open light air space for the neighborhood, and but it's not considered that the top third is kind of those bars.

We like like we stated earlier, it's that the fact that the whole fence is not considered open.

Um even if it is the top, I think it's like foot and a half.

You would say two feet.

Two feet is like open, like as shown in the photos.

It's not considered no open fence.

They could have a four-foot completely closed fence.

No, we'd still need to be open.

Um permitted obstruction in the same section as the variance.

I mean, for the uh sister structure.

I would also add that um the board has the ability to, like if you saw that there was like maybe you were okay with a four-foot solid fence, but not a six-foot solid fence or some other distance um maybe not 13 feet if there's some other um sort of middle ground fence location, the board does have the ability to um put a condition or um on a different type style of fence if you want in.

Another uh I guess point of order type question.

Are so in the federal courts you have what's called a slip opinion, which is meant to like not create a precedent, but they want to make a one-time decision.

Are we allowed to craft a decision along those lines where we're we're going out of our way to say this is not creating a precedent for the neighboring properties?

With regard to the you know, orientation to the street.

I mean, I think it would be I I'm not aware that we've ever done that before.

I think it would be hard to do that when you look at a similarly situated lot.

Um I'm not aware that we've ever done that before.

Um I think it would, I think it would always set precedent.

So question for staff.

The fence as it currently exists, if it were to move further in, how far in would it have to move in order to stay exactly as it is?

To comply completely, yeah, it has to follow that 13 foot right there.

Um like we stated, we if the board you could you you could amend that they change the design, like you said, to reduce it to four feet, leave it in its current position, or a reduced setback less than the 13 feet.

If you guys feel that is a more applicable solution to this special exception.

But to comply by right with zoning, it would have to be 13 feet off the property line for the six-foot closed fence.

And the and the reason for that, so so corner lot fences have there's two different scenarios for fences on corner lots.

One is a situation like this property where you have primary fronts on other properties that are abut that are adjacent to it that face that same street.

So when you have the primary fronts of other properties, you have to the fence, six-foot fence has to be located half the distance between the property front property line and the front building wall.

If it was all secondary fronts that faced the same street, um then the fence could be located two feet from the sidewalk.

So that's why I was saying if if there was some distance maybe that was in between those that met the needs of of the applicant and the um the board, maybe maybe that was a solution.

So I'm gonna understand then that the house and the fence, there's thirteen feet between the house and the fence where it's right now.

Okay.

No, no, the 2026.

Okay.

By right, it would be 13 feet is the distance.

So they'd need to pull it 13 feet back.

So it'd be half the distance between the house and the front property line.

Okay.

So that would still give them 13 feet of yard between the house and the fence where the fence to be moved back to where it can be placed and still be in the configuration, the six foot width.

Correct.

Okay.

Sorry.

Uh yeah, sorry.

Uh if that fence were to move that much, does that impact that apple tree that you talked about?

Uh yes, ma'am.

I went out this morning and measured 13 feet from my neighbor's yard, and it comes right into that mature apple tree that was in the picture.

From your neighbor's from my neighbor's front.

So I went to I went down where the 503 is above that, and my neighbor there, the human Jan Hopper, and I measured from the front of their house, not including their porch, out to the street, and it's 26 feet, and I went out 13 feet, and it it lines directly up with that mature apple tree if it was moved to there.

But the problem fence is on the bayless drive side.

Yes, ma'am, that's the one it would um about where about where the R is and where it says frame patio.

I don't show it to the point.

There you go.

Mr.

Brittle, please please talk into the that's about where the apple tree is there.

I couldn't see that far, sir.

Sorry.

Okay.

Okay.

So a foot one way or the other would save the apple tree.

In theory.

Okay.

Thank you.

Thank you.

It it sounds like unlike the the variance request, which uh admittedly is a very high standard relative to a special exception, that our latitude is uh for the fence placement also we have latitude to the design of the fence.

Correct.

The BCA can add uh any conditions to an approval.

So we could theoretically require that the applicant or allow the applicant to maintain a solid fence for the first four feet and then have a 50% permeable or or whatever the term is um for the last two feet.

Not the convertible style, because you would consider it closed, but something like uh whatever lattice or or bars get you to 50% and we could structure our um our determination that way.

Correct.

That's a hypothetical, yeah.

Sorry, just factually, is this the fence that's right behind the gazebo?

Correct.

If you look at the photos there, so there's the gazebo, and then it goes right to the front of it, and then it goes all the way down to the end of the property line and then curves back.

So any decision where they have to move it back, they have to pretty much get the gazebo down and move everything back.

Move the fence or the gazebo.

If they have if we say they have to move the fence back five feet, wouldn't that also mean they have to take down that gazebo if that's right along the fence?

So correct, if they were to move the fence.

That's why I'm having trouble thinking if we could actually do this separately versus do they both have to be determined at the same time.

No, you can do them both separately because they're two separate requests.

Um theoretically, you could move the fence to a set distance that you guys decide upon and then without it running through the middle of the of the gazebo.

So uh Mr.

Patel?

I I think it might help uh rationalize it if you consider that um they built the gazebo like nine years ago, and for the past nine years they've had a white picket fence that went around their property where the current fence is now, and then now they went and uh I guess a storm blew down that white picket fence that was with that was compliant, and then they built this uh this out of compliance fence in its place.

So if we were to deny this, they would um they would be able to go back and rebuild the fence the way it is now, like if they went and just cut it down to four feet and took out every other board.

Then it would comply.

Placement of the fence.

It's just the height of the fence.

Not we're not asking.

Well, it could be about the placement of the fence.

I mean we you know, if they could they wanted a six-foot fence, they could move it if we just denied this outright, and they would have to move it back to that the line that's demonstrated right there now.

Or they could make it into a compliant fence, which is what, four feet or and fifty percent open?

Correct.

The suggestion we heard earlier, I guess with the four feet solid and then two feet less.

Right, which which wouldn't be one for one with the the old time uh picket fence, which I think I remember uh maybe it was Google Maps, I put the guy down on Bayless and you can see where it was, how it interacted with the uh with the gazebo.

But yeah, so the idea that I proposed was uh yeah, we it would be effectively granting relief for the solidity of the fence, even at four feet, um and its placement at for for it being a six-foot fence, but but providing some kind of permeability in the top part as a um as a gesture to the like light and air kind of feel.

Yeah, I'm just thinking because it looks very open on the top two feet.

I mean, are we just saying that?

And this is the proving well, this is the the bayless side, and it's probably the first third or forty percent of its length along that side.

The back part of the lot is solid all the way to the top.

This convertible section is only this forward part of Bayless and then the front facing part on cross street.

That's helpful.

So are we also deciding kind of the non-front yard facing parts of the fence that are better?

Or is it is our decision limited to just what they do with the fence along the frontage.

My understanding this is just Bayless street.

I think it's the other one is at the end of the yeah, it would be anything that's that's within that first 13 feet of um along baseless along baylists.

Yeah, not crossed.

Okay.

Correct.

We were gonna pull up the pictures the applicant had to be.

Yeah, the applicant has pictures that show the back part versus the question for staff.

Is there any form of something they can fill out to make this a side yard definitionally instead of the second front yard or keepers?

No, it's in the definition of a corner lot.

I thought this is okay.

I I just like to say keep in mind that if there was an agreement by the board about um there's like with the special exceptions, there's there's a lot more leeway in what the board can do that would not be necessarily impactful to uh other cases because you know we could determine that because of I don't know, something about this property that it just it it looked right for the neighborhood.

And then we could say that it was okay.

I mean Ms.

Christensen, am I wrong about that?

I mean we have a lot more leeway with the special exceptions.

Correct.

It's a it's a different set of criteria.

Um we can pull that back up after we look at the pictures.

Um but yeah, you could craft something um that it was in care it's more about like the character of the neighborhood um and impacts to the neighborhood um and to adjacent properties than it is the the variance criteria.

Or theoretically where on on a lot where the grade change from the sidewalk to a point you know five feet inboard is greater than a certain slope, then we could uh permit a six-foot tall fence on the secondary front yard.

Because that seems to be the condition here.

I I am not setting the conditions.

You uh I am just suggesting that there is a lot more leeway here than in the variance conversation.

The variance conversation is very strict and it has implications to what we do with a special exemption because you know maybe we determine that it's you know more characteristic, or there's certain leeways that we could go that are not necessarily you know so impactful is the variance decision.

And here, you know, I think looking at the pictures, it's the topography, it's up and down.

You know, I think having a four-foot fence at certain parts of this means you have no fence.

So that's definitely one consideration.

I think secondly the only thing we heard about you know neighboring properties is that the neighbor that faces part of that six-foot fence also wants it there because it helps both properties, and then that's a faculty consideration.

Um those pictures you can see it just dips down.

I mean, but so yeah, here what I think we see on the left side.

What I think we see on the left side now that I've got my microphone on.

Um is the neighboring property off what is the applicant's backyard, and this is not in controversy.

Is that correct?

No, the backyard's not in controversy, but the first 13 feet of that.

But the first 13 feet going off of from Bayless to there is in what we're here for.

So even though it's on the rear property line, it's technically in the secondary front yard, that first 13 feet.

Okay.

I see.

Okay.

But again, as a special variance, special exception, whatever it's called.

Um we can discuss a creative.

I'm sorry.

So um as this is an exception and not a variance, we can discuss how there may be a way to cure this issue of this 13 foot feet feet where the previous fence existed and there are no complaints from the neighbor that would be impacted by it.

In other words, we could say that's fine as it is.

Yeah, one believe so.

Yeah.

And I think it fits the characteristics of the neighborhood.

I think there's some other pictures where we saw kind of glimpses of the fences on the on the adjacent properties.

And this doesn't look out of place like it's a big 12-foot gothic iron fence that just doesn't look like it should be there.

This is something that the neighbors wanted, it looks it's been there ten years.

The fence has not been there for 10 years.

And Mr.

Patel, can you make sure you turn your mic on?

Yes.

Um the fence was just erected um last fall.

Okay.

June may the fence was erected in June May and the complaint went in August.

Okay.

I'm sorry, June.

All right.

So we've had a lot of uh deliberation here.

Um can we hone in on a I'm hearing perhaps a motion with um some contingency or some something.

My hesitation on bringing the motion is if we have the yeses fair enough, but otherwise to put this part and parcel with the gazebo and have it the entire case deferred if they're gonna have to come back anyways.

You know, it doesn't piecemealing it.

Uh I don't see what the Mr.

Patel.

I I think that you know this is Mr.

Patel, I I think that we need to treat this as a separate completely separate thing here.

This is the special exemption that was a separate package.

Um variance is separate.

So yeah, let's just get a vote going on this, whatever you guys want.

Let's let's give me a motion.

Uh I just want to say I I agree uh with bifurcating it like that.

Um also because like the applicant only gets five minutes to talk.

If we're gonna make them come again, they're gonna have to split their time across these two uh these two cases, whereas if we at a for our future deferred meeting, they can focus only on the um variance part, I think they'll um be able to put their best foot forward um for that.

Ms.

Bauman has her hand up.

Yes.

Thank you.

Um thinking through what a specialist exception might look like and what a reasonable modification might look like that could um that we could add with the applicant.

And I wonder if hypothetically the we leave the fence I think we have to correct the location that's outside of the property.

Uh and that would be a correction.

Um if we leave the fence to the height that it is closed and then remove those top, the top piece that is that kind of could be open closed.

Um is that in is that an option other board members might consider?

I miss Ms.

Bauman, I I think that what I'm hearing is you'd like to make a motion with the um criteria of making the fence staying in place but only four feet high where the um the applicant would need to remove the upper two feet of the fence to make it compliant with the board's um motion if the motion were to pass.

Is is that correct?

That's correct.

If that bottom part is four feet, I wasn't clear on whether that was four feet or not.

But yes, if if that bottom piece of the existing fence is four feet, then that dismantles.

My understanding from what the applicant said is the bottom piece is four feet.

So our art do I hear a motion from you?

Yeah, that was a motion to what's your motion?

Please state it.

The motion is to um approve the special exception request with the condition that the uh top part of the fence that is that um open closed part.

I don't know how it's called.

Sorry.

Um that that piece is removed, but the uh rest of the fence remains in the location that it's currently in and closed closed fence at the fourth place level.

Okay.

Do I hear a second to that motion?

If I could Christensen, do you have a um I just had a question?

Um so the not the entire fence has the louvers.

So are you are you proposing just that high?

Uh sorry, we have a mouse mouse run through the room.

They followed us here from yeah.

Nice.

Okay.

Um sorry.

Um so the entire fence doesn't have the louvers.

Are you proposing that the entire fence would be removed to the height below the louvers?

No, just the uh just that um secondary front yard piece that that is um in violation of that 13 foot that's okay.

So the so there is a portion that is solid six feet that is in that area.

That portion would be reduced to four feet.

Yes, that is I that is what my interpretation of what Ms.

Bauman had stated.

That all of the area that is out of compliance would be reduced to four feet, however, that they would be allowed to keep it solid at four feet.

That's correct.

Do we have a second for Ms.

Bauman's motion?

Okay, so we don't have a second for it.

So that motion failed.

So do we have a a different motion with different criteria?

Yeah.

I I believe so.

Uh I would like to move to grant the special exception on the condition that the fence along Bayless Street and the part of the fence at the backyard where it meets it for that uh last 13 feet uh is modified such that the first four feet of the fence off the ground remains solid and the last two feet of the fence at the top is permeable at 50 percent um in a fixed condition.

Okay.

So Ms.

Christensen, did you get okay?

So do we have a second for that version of the motion?

I second that.

All in favor say aye.

Aye.

All opposed, same sign.

Aye.

Ms.

Bauman, I didn't hear your vote.

I'm thinking.

Um Mr.

Chair wants now.

We're voting.

I may be any other is we have four affirmative, two negative.

So the motion passes for the special exemption with the criteria that the fence can remain solid for four feet where it exists now.

Of course, there will be uh the city will have to work on the part that is encroaching.

Um then it's the two feet remaining will have to be changed to permanently 50 percent open.

So uh does the does the applicant understanding Yes sir, we do.

Okay.

Um does staff have any questions about this?

I think we've got it.

Okay.

Okay.

I guess that's it for tonight.

Um I'm sorry.

Minutes.

Minutes.

Um uh your variance uh uh Mr.

and Mrs.

Brittle.

Your your variance is deferred until there's a full board and your uh special exemption is it's not like it's approved with conditions.

So you have to meet those conditions.

Please work with staff to make sure that you are in compliance with those conditions and you still have to move or you have to get that encroachment done on the other, you know, the the section of the fence that is on city property, so you'll have to figure that out with city with staff and the city as well, right?

Yes, sir.

Uh a question for staff.

We would prefer not to make any changes until the encroachment is known, because if we have to move it and then edit it versus edit it and not move it if we get that nine inches.

So uh can we until the encroachments.

We can work with you in transportation and environmental services.

Thank you, ma'am.

Appreciate it.

Thank you.

Have a good night.

Thank you very much.

Okay, moving on.

Uh I think we have minutes from uh consideration for the February 9th meeting, right?

Correct, yes.

Um Secretary.

I I believe that you have reviewed the minutes.

I have indeed reviewed the minutes, and they appear to be correct to me.

Okay, by unanimous consent, we will if there's no objections, we will approve the minutes.

Hearing none, minutes are approved.

By um uh unanimous consent to close the meeting.

I hear no objections, so the meeting is now closed.

We are adjourned.

Thank you, everyone.

Have a good night.

Okay.

If we said no, would they just be denied?

Like if the motion is made with conditions, but I want a motion with no conditions.

But if I vote no on the conditions one, and so we don't get to four years, I suspect that would be denied, and then do we get to move further?