Metropolitan Board of Zoning Appeals Division III Public Hearing - August 17, 2021
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Metropolitan Board of Zoning Appeals Division III Public Hearing - August 17, 2021
The Metropolitan Board of Zoning Appeals Division III held a public hearing on August 17, 2021, chaired by Craig E. Von Dalen. The board addressed several continuances, expedited petitions, and two contested variance cases. Key decisions included approval of a drive-through variance for a McDonald's restaurant despite staff opposition, and approval of a front porch variance with an eight-foot setback.
Consent Calendar
- Expedited Petitions: The board approved all expedited petitions in a single vote (5-0) after a correction to petition 2021-DV3-025 (sign height reduced from 9 to 6 feet). Petitions included variances for setbacks, signs, and a temporary modular school classroom.
Public Comments & Testimony
- Joanna Franklin (Crooked Creek Alerts land use committee) opposed petition 2021-DV2-048 (McDonald's drive-through), arguing that approval would set a bad precedent and undermine streetscape efforts. She requested the board uphold staff's denial.
Discussion Items
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2021-DV2-048 (1445 W 86th St) – Carmosino Group/McDonald's: Petitioner Joe Calderon requested a variance to allow a drive-through in the front yard (prohibited on streets over 30 feet wide). He argued that the building was already under construction due to an error by the Department of Business and Neighborhood Services, and that the drive-through orientation was necessary for traffic safety and site constraints. He noted the site is 3-4 feet below street grade and that enhanced landscaping (including evergreen shrubs) would mitigate visual impacts. The Nora North Side Community Council voted not to oppose the project. Staff recommended denial, citing public safety concerns from headlight glare and the precedent of allowing front-yard drive-throughs. A conflict-of-interest discussion occurred regarding board member David Duncan (relationship with petitioner's attorney); Duncan and member Janice Golson Dunlop stated they could be impartial, and no objections were sustained. Remonstrator Joanna Franklin reiterated opposition based on precedent and procedural fairness. The board voted 4-1 (Catherine Chee dissenting) to approve the variance, with a condition that the landscaping be evergreen.
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2021-DV3-039 (5343 E St Joseph St) – Mary Wyland: Petitioner requested a variance for an enclosed front porch with an eight-foot front setback (required 18 feet or block average of 14.5 feet). The original request was for five feet; the petitioner compromised to eight feet after discussions with staff. Neighbors testified in support. Staff recommended denial at eight feet, suggesting a 10-foot setback to maintain streetscape rhythm and emergency sight lines. The petitioner argued that adding to the rear was impractical due to a steep drop and existing patio investment. The board voted 3-2 (Golson Dunlop and Chee dissenting) to approve the eight-foot setback. The findings of fact were continued to a later meeting for correction of dimensions.
Key Outcomes
- Continuances Granted: Seven petitions were continued to the September 21, 2021 hearing, either with or without additional notice, including 2021-DV3-038, 2021-SE3-001, 2021-DV3-031, and automatic continuances for three others.
- 2021-DV2-048 Approved (4-1) with condition for evergreen shrubs.
- 2021-DV3-039 Approved (3-2) with eight-foot setback; findings of fact to be revised and adopted later.
- Adoption of Findings: Findings from previous hearings (2021-DV3-027 and 2021-DV3-026) were presented for signature.
- Conflict of Interest: Board member David Duncan and Janice Golson Dunlop disclosed potential conflicts but were allowed to vote after stating impartiality and no audience objection.
Meeting Transcript
I don't have a gavel today, so I'll use my fist. It's call to order. This is a public hearing of the Metropolitan Board of Zoning Appeals, Division III. I am Craig E. Von Dalen, Chairperson of Division Three. The other board members present are Janice Golson Dunlop, Catherine Chee, Jim Rawlinson, and David Duncan, an alternate. Legal Counsel for the Board today is Chris Steinmetz. Staff members present today from the Division of Planning are Larry Callaway, Principal Planner 2, Robert Eulin Haig, Senior Planner, Marlene Arajeda, Senior Planner, Genesis Hill, Associate Planner, and Heather Stephens, Senior Specialist and Secretary to the Board. Matt Pleasant is the current planning administrator. The board has copies of the zoning ordinance that will be incorporated by reference into the record of each case heard today. The proceedings of this hearing are governed by the board's rules of procedure. The expedited cases will be heard immediately after all requests for continuances and withdrawals. As each non-expedited case is called petitioners and remonstrators interested in that particular case will please stand. Those who intend to testify will please remain standing and be sworn. Petitioners should be on your left and remonstrators on your right as you face the board. Those who testify will state their name and address for the record before beginning to testify. Petitioners and persons in appearing in support of the case being heard shall have a maximum of 15 minutes for the presentation of evidence, statements and arguments in support of the petition. Remonstrators and persons appearing in opposition to the petition shall have a minute maximum of 15 minutes for the presentation of evidence, statements and arguments in opposition to the petition. Staff will then present the administrators' comments regarding the petition. The petitioner will then be allowed five minutes for rebuttal in a summation of the case. Rebuttal must be limited to the subject matter of the initial presentations. Remonstrators will then be allowed five minutes for rebuttal of the petitioner's rebuttal evidence and a brief closing statement. No further evidence, statements, or arguments will be heard unless it is at the discretion of the board. Please limit your testimony and evidence to the matters covered in the statutory requirements, which must be met in order for the board to grant a variance. If the petitioners have failed to comply with all notice requirements as stipulated by the board's rules of procedure, including posting of the notice sign on the subject property at least 23 days prior to the hearing, the board may continue the petition. Anyone at this hearing who thinks complete and proper notice has not been given and would like the petition continued due to lack of proper notice must bring this matter to the board's attention at the beginning of the hearing. The board may impose various conditions or commitments as amendments before reaching a decision on certain petitions. The installation of landscaping and screening, the paving of parking area, and the dedication of right of ways are examples. These conditions and commitments are an integral part of the board's decision and must be met for a granted variance to be valid. Compliance with conditions imposed by the board must be proved by an affidavit of compliance submitted by the petitioner within 30 days of completion. Unless otherwise specified, an improvement location permit must be obtained prior to the establishment of authorized improvements. Failure to comply with any conditions or commitments of a variance grant. Is a violation enforceable by the Department of Business and Neighborhood Services. A person may file a written request to receive notice of the filing of a petition for judicial review of a decision of the board. The written request must be filed within five days of the board's decision and must include the person's full name and correct mailing address and a reference to the board's petition number. Forms are available and may be obtained from the board secretary. Please be advised that contacting members of the board regarding a matter pending before the board outside of this public hearing process is prohibited. All voting today will be done by roll call. I will individually read each board member's name and ask them to vote yes or no. Please be courteous and orderly at all times, and please be sure all cell phone ringers are turned off. Before we hear special requests, I'll ask for a waiver of the rules of procedure to allow the board to vote for all expedited petitions and adopt their findings of fact in a single vote, rather than voting on each petition separately. I will entertain that motion. Thank you. And a second. Motion was by Member Golson Dunlop. Second was by Member Duncan. I'll now ask for a vote. Golson Dunlop. Yes. Chi.
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