Metropolitan Board of Zoning Appeals Division II Meeting – July 12, 2022

The Metropolitan Board of Zoning Appeals Division II met on July 12, 2022 at 6:00 PM. Chair Craig Von Dalen presided with members James Duke, Patricia Duckett Brown, and Kirk Farmer (four members present). Legal counsel Craig Steinmetz and planning staff were in attendance. The board addressed numerous continuance requests, an expedited docket, and three contested variance cases. Due to only four members, a majority of three was required for approval; ties resulted in automatic continuances.

Continuances and Procedural Matters

• A one-day waiver of notice was granted for petition 2022 DV2-026 (5415 Central Avenue) after staff support and no public objection.
• Petition 2022 DV2-017 (928 Woodlawn Avenue) was moved to the expedited docket after the petitioner amended the request (withdrawal of one setback variance, increased rear setback) and staff recommended approval. A remonstrator initially appeared but was confused by a notice for a different case.
• Petition 2022 DV2-022 (1342 Southeast Street) was continued to August 9, 2022 without notice at the petitioner's request, with staff no objection; the petitioner stated the neighborhood association recommended approval.
• Petition 2022 UV2-007 (1259 W 29th St): A motion to continue to August 9 failed due to lack of a second after remonstrator Tom Hanley objected. The board proceeded with the hearing.
• Petition 2022 DV2-024 (4235 Broadway Street) was continued to August 9 without notice with staff no objection.
• Petition 2022 DV2-020 (1603 Hoyt Avenue) continued to August 9 without notice.
• Petition 2022 UV2-009 (1251 W 96th Street) continued to August 9 without notice.
• Petition 2022 UV2-010 (2400 Roosevelt Avenue) continued to August 9 without notice.
• Petition 2022 UV2-011 (1355 W 96th Street) continued to August 9 without notice.
• Petition 2022 UV2-012 (9333 Haver Way) continued to August 9 without notice.
• Petition 2022 UV2-013 (6111 W Hannah Avenue) continued to August 9 without notice.
• Petition 2022 UV2-017 (3912 Glen Arm Road): An automatic continuance by a registered neighborhood organization was acknowledged.
• Petition 2022 UV2-018 (4900 Robinson Road) was acknowledged as automatically continued.
• Petition 2022 UV2-016 (2505 N Sherman Drive) was continued to September 13, 2022 with or without notice; the petitioner needed more time to discuss with the neighborhood organization and address landscaping. The remonstrator (Brightwood Conservative Citizens) did not object.
• Petition 2022 DV2-023 (1509 Prospect Street) was continued to August 9 without notice at the petitioner's request.
• Petition 2022 UV2-017 (1259 W 29th St) – see discussion below for the failed motion and full hearing.

Expedited Docket (Unanimously Approved)

Three petitions were approved by a 4-0 vote:

• 2022 DV2-025 (7913 Ridge Road): Variances for a tennis court with reduced setbacks and a taller fence.
• 2022 DV2-017 (928 Woodlawn Avenue), amended: Variances for a detached garage location and setbacks, as amended.
• 2022 DV2-026 (5415 Central Avenue), amended: Variance for rear setback reduced from 3 ft to 5 ft, as amended; petitioner withdrew request for rear setback variance and agreed to a 5 ft rear setback.

Discussion Items

Case 2022 DV2-009 – 1635 South Sherman Drive (Renee Zamudio)

• Petitioner's Position: Represented by Brent Bennett and property owner Renee Zamudio requested variances to construct a 3,200 sq ft detached accessory structure (larger and taller than the primary dwelling) and to operate a roofing business with storage of commercial vehicles. They argued the garage would house personal items and business vehicles, and the business had been operating without complaints. The petitioner noted the lot is large with a small house, and he owns the adjacent property to the south.
• Remonstrators: None present.
• Staff Position: Recommended denial. The D3 district is for low/medium intensity residential; the proposed structure would exceed the dwelling in size and height. The roofing business is a heavy commercial use not appropriate for a residential area. Staff found no practical difficulty and stated the commercial vehicles could be removed to reduce garage size. The grant would be injurious to the general welfare, adversely affect adjacent property values, and not align with the comprehensive plan's suburban neighborhood recommendation.
• Board Vote: 2-2 (Von Dalen no, Duke yes, Duckett Brown yes, Farmer no). Due to a tie, the petition was automatically continued to the August 9, 2022 hearing.

Case 2022 UV2-007 – 1259 West 29th Street (Lafayette Williams)

• Petitioner's Position: Represented by David Kingan and supported by Brent Lyle (Flanner House) on behalf of property owner Lafayette Williams. They sought variances to legally establish an automobile repair business in an I-2 zone (light industrial). The petitioner argued the property had been cleaned up, all junk cars removed, and operations would be entirely indoors with no outdoor storage. Commitments included a privacy fence along the east property line, no freestanding signs, limited hours (8am-5pm Mon-Sat), and one to three employees. They presented 18 letters of support from neighbors. They argued that many permitted I-2 uses (e.g., animal boarding, dry cleaning, printing) would have more impact than this auto repair.
• Remonstrator: Tom Hanley (913 Inc., youth-focused nonprofit) opposed. He stated he controls multiple adjacent addresses and has invested over $750,000 in the area. He argued the property has a history of violations (over 200 junk cars, oil spills, burning trash, stolen cars, weapons incidents involving tenants). He claimed the support letters were obtained under false pretenses and that the variance would remove enforcement levers. He emphasized the risk to children using his facilities and noted the need for a traffic study given the impending two-way conversion of 29th Street. He also stated he recently entered an agreement to purchase the private Udell Street area adjacent to the subject property.
• Staff Position: Recommended denial. Auto repair is not permitted in I-2; the use is inappropriate adjacent to residential districts (D5 to the north and east). Staff noted the I-2 district is intended to buffer residential from heavier uses, and the requested zero-foot setback and no landscaping variances would harm protected districts. The need does not arise from a property-specific condition; the site could be used for many permitted I-2 uses.
• Board Vote: 1-2 (Von Dalen no, Duke yes, Farmer no). Board member Duckett Brown recused herself due to a conflict, leaving three members. The tie vote resulted in an automatic continuance to the August 9, 2022 hearing.

Case 2022 DV2-028 – 3014 North Sherman Drive (Verizon Wireless)

• Petitioner's Position: Represented by Russell Brown and RF engineer Brian Robbins. They requested a variance to increase the height of an existing 70-ft monopole cell tower to 105 ft (plus 8 ft lightning rod) to allow Verizon to co-locate 5G equipment and offload capacity from four nearby towers. They argued the height is needed to overcome 80-ft old-growth trees and provide 5G service to a mile radius. They committed to replacing landscaping in fall. They noted the tower would still be the same visual presence, and co-location avoids a new tower.
• Remonstrator: Vernon Compton (Brightwood Conservative Citizens) opposed. He stated the community originally fought the tower's location and does not want it taller. He argued it is an eyesore and that nearby churches and a fire station (on a different communication system) did not receive proper notice (petitioner claimed they did). He urged denial, saying if Verizon needs a taller tower, it should find a better location.
• Staff Position: Recommended denial. The C-4 district permits towers up to 70 ft; the proposed 105-ft height would exceed that. The tower would become the dominant visual feature in a residential area with five protected districts within 500 ft. Staff found no practical difficulty because the existing tower already functions. The 2017 petition for a similar height increase was not approved, and nothing substantial has changed except the tower's construction at 70 ft. The grant would be inappropriate and injurious to the general welfare.
• Board Vote: 0-4 (unanimous denial). The petition was denied, and the board will adopt findings of fact.

Key Outcomes

• Approved (4-0): Three expedited petitions (2022 DV2-025, DV2-017 amended, DV2-026 amended).
• Continued automatically (tie votes): 2022 DV2-009 and 2022 UV2-007 to the August 9, 2022 hearing.
• Denied (0-4): 2022 DV2-028 (cell tower height increase) with findings of fact to be adopted.
• Numerous continuances granted to August 9, 2022 (most without additional notice) and one to September 13, 2022 (2022 UV2-016).