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HomeMy WebLinkAbout16-3884 ExD PC Draft Minutes 112116MINUTES OF THE ORONO PLANNING COMMISSION MEETING Monday, November 21, 2016 6:30 o’clock p.m. 7. #16-3884 JEFF AND PIA SCHUTT, 2750 CASCO POINT ROAD, APPEAL, 7:35 P.M. – 8:07 P.M. Michael Schutt, son of Jeff and Pia Schutt, was present. Curtis stated the applicants have constructed a narrow pergola or arbor over an 11-foot long retaining wall. The retaining wall is located less than two feet from the side lot line and is detached from the home adjacent to a patio. Because pergolas are not specifically outlined in the Code, Staff reviewed the pergola against the accessory structure and non-encroachment standards. Accessory structures less than 750 square feet are addressed in the non-encroachment provisions and are permitted no less than five feet from a rear lot line and ten feet from a side lot line. In an effort to find an appropriate regulation, Staff alternatively looked at the fencing regulations as the pergola is lineal similar to a fence. In the encroachment section regarding fencing, the pergola in the current location would need to be reduced to no greater than six feet in height to meet the fence maximum. In order to close out their permit and receive a certificate of occupancy for the new home on the property, the pergola issue must be satisfactorily resolved. The applicants have opted to appeal the decision of Staff on this matter. The appeal process provides an opportunity for an applicant to present facts and prove that the City official erred in applying the Code. The applicants contend that Section A1 under the non-encroachment section is applicable. Staff would note that that section relates to building elements which are attached to the building and are permitted to encroach up to two feet into a required side yard setback, still requiring on this property that the structure needs to be at least eight feet from the lot line. The pergola is approximately two feet from the property line. The Planning Commission should review the application and make a decision regarding the appeal. Thiesse asked if there is any City ordinance that would construe that the structure is in the right spot. Council Exhibit D Curtis indicated Staff was not able to find any. Landgraver asked if a landscape plan was submitted. Curtis stated this is new construction and there was a landscape plan submitted. Curtis noted there was a French drain shown on the landscape plan in the approximate location of the pergola. The builder assured Staff that the French drain is there but that is one of the features Staff has requested be shown on the revised as-built survey. Landgraver noted the Planning Commission did review a landscape plan and to his recollection the pergola was not included. Michael Schutt stated he is here tonight to answer questions on behalf of his parents since they are out of the country at the present time. Schutt stated given the fact that there is no structural integrity to the feature, the question is whether it should be defined as a pergola, an arbor, or a fence. Curtis displayed a picture of the structure. Schutt noted the retaining wall was needed for the drainage from the neighboring property and that the structure is an enhancement. Schutt indicated the adjacent neighbor is very much in favor of it and believes it adds to the aesthetics of her property as well. Schutt stated they would like to get some clarity on it. Thiesse asked if any public comments were received. Curtis indicated Staff did not receive any comments but that this was not noticed for a public hearing since it is an appeal and the neighbors were not specifically notified. Lemke asked if the retaining wall was included in the original plan. Curtis stated there was a patio and the French drain included in the plan but to her recollection the retaining wall was not included. It is Staff’s belief that it is not a retaining wall but rather a sitting wall. Thiesse noted there is also a boulder wall that is adjacent to it but that this is more of a sitting wall. Curtis stated they are different. Thiesse asked if this would have required a variance if the Planning Commission had seen this originally. Curtis stated the wall at its current would likely have been allowed but it is the height of the structure that is at issue. Schoenzeit stated in some ways this is semantics, and that if it were a trellis with some type of plant growing on it, it would not be an issue. Schoenzeit stated the City would also want to make sure it does not expand. Schoenzeit stated the fact that there is not a lean-to on the house currently helps the situation. Lemke asked if a trellis would be allowed in this location. Landgraver noted the issue is the height of the structure. Schoenzeit asked if it being classified as a fence because of its length. Curtis stated Staff is not necessarily calling it a fence but were merely attempting to find a regulation that would apply to it. Leskinen noted it would not be allowed as a fence given its height. Barnhart stated the Planning Commission should look at the code and determine whether Staff misapplied the code to this situation. Barnhart stated while it might be a nice addition to the area, Staff could not find any code to allow it. Barnhart noted a stone wall is permissible up to 42 inches high depending on its location, but once the wood structure is added, the height is restricted. Schoenzeit asked as part of the appeal process whether there is any way to test whether the code was misapplied versus whether an after-the-fact variance is more applicable. Barnhart stated the applicants could apply for an after-the-fact variance. Thiesse noted that would be a separate process. Schoenzeit stated the issue is whether the code was applied incorrectly. Thiesse noted he asked if there is any code or regulation in the City that would allow it and the answer was no. Thiesse stated every time a different name is given to it, something else comes up prohibiting it. Schutt stated one of the issues is that no one has been able to apply a name to it since it is merely there for aesthetics. Schutt stated they are asking for some lenience on the structure given the fact that it is more or less an aesthetic structure. Schutt noted the wall was needed for drainage purposes and that they added the structure on top of it as an enhancement. Thiesse stated no matter what it is called, it is too high and the wall, since it serves as the foundation, is too close to the property line. Curtis stated the accessory structure regulations are pretty all-encompassing and allows a number of different structures but require five feet at the rear and ten feet into the side for the setbacks. Curtis stated from the standpoint of not calling it a fence but applying the fence standards to it, Staff was attempting to find a little leeway. Lemke stated in his view it serves the same purpose as an arbor and that he would call it an arbor. Leskinen noted even as an arbor, it would be considered an accessory use. Leskinen commented it is too high and too close to the property line no matter what it is called. Schutt stated it was included in all the original plans and was there when the property was inspected on different occasions. Schutt stated the difficulty was to depict it adequately on the plans given its height. Schutt indicated it was not until the final inspection that it caused concern. Schoenzeit asked if the circumstances would be different if it was a purchased sculpture and placed there with a forklift. Curtis stated it becomes a question of whether it is furniture, like a lawn chair or umbrella, or something that is seasonal. Curtis noted this was constructed onsite and is permanent. Thiesse stated it comes back to no matter what you call it, it is not allowed. Thiesse stated the role of the Planning Commission tonight is to verify whether the code was applied correctly, and if the applicants are not satisfied with the outcome, they could apply for an after-the-fact variance. Olson asked if the property owners were misguided and they were led to believe it was approved. Curtis stated to her recollection the original plan did not show a wall but depicted a patio in that location. Schutt stated it has been a part of the plan from the beginning and it was not until the final inspection that it became an issue. Curtis stated City inspectors are normally called out to look at a specific feature, such as plumbing or framing. The inspectors are onsite for a limited amount of time and are there to look at a specific thing. Curtis noted this is a small feature, did not cause a drainage problem, and the neighbors have not complained about it. At the time of the final as-built inspection, the inspector walks the site, he takes photographs, and then meets with Staff to ensure that the project complies with the plans. Curtis stated Staff realizes there will be changes to landscape plans because they are somewhat, which is why that was not called out by any of the inspectors. Thiesse noted the role of the Planning Commission is only to discuss whether the code was applied correctly and that it appears the code was applied correctly. Landgraver stated as a service to the community, he would not want to say that all the applicants need to do is apply for an after-the-fact variance since that may not be approved. Landgraver stated he remembers discussing the patio since it was close to the edge of the property but that he does not remember discussing anything vertical in that area. Landgraver stated had there been something like this discussed, he probably would have had a concern about it. Landgraver indicated he tends to agree that Staff has attempted to find a way to say yes but that the height is the issue. Landgraver stated he is inclined to think the criteria used by Staff was correct and that he would tend to deny the appeal. Landgraver stated he also is concerned whether it will get a variance if it is at six feet. Curtis stated at that point Staff would probably apply the fence standards again. Schutt indicated it is 7.5 feet high and lines up exactly with the roofline on the house. Schutt stated bringing it down to six feet would result in it being directly in the line of sight from the house. Schoenzeit asked if this arbor was included in any of the elevations that were submitted to the City. Schutt stated he does not feel comfortable answering that question at this time. Curtis stated Staff could look at that. Curtis indicated she does not remember that being included and that typically landscape elements are not included in the building plans except for perhaps an egress window or a change in grade or where a retaining wall is necessary. Schoenzeit stated if it were included in the approved elevations at 7.5 feet, that would change the discussion. Curtis stated if it was not something that was called out in Staff’s plan review or permitted, she is not sure that it would be approved by default. Curtis stated she is relatively confident it was not included in the building plan and that it is more of a landscaping element. Curtis stated the house is also right at the limitation for structural coverage and that this would have been an issue given its height. Schoenzeit moved, Landgraver seconded, Application No. 16-3884, Jeff and Pia Schutt, 2750 Casco Point Road, to recommend denial of the appeal. Olson stated if the applicants were misguided at all in building this structure, they now have to tear it down and incur costs. Olson stated he is not sure if that is the case, but if it is the case, he has an issue with the applicants incurring costs to do that, especially if it was not their fault. Thiesse stated what he is hearing is that Staff did not tell them any one thing but that the applicants understood one thing but it was not on the plans. Thiesse stated if the applicants can come up with any documents that show it was included in the plans that were reviewed, they could bring it back. Right now the Planning Commission is talking about whether the existing code was applied correctly Schoenzeit stated if the applicants want to attempt to keep it, they can apply for an after-the-fact variance. Landgraver asked how much time the applicants would have to appeal the Planning Commission decision. Curtis indicated they would need to appeal the Planning Commission’s decision within ten days. Thiesse asked if an after-the-fact variance would be necessary if they can show it was included in the plans. Barnhart stated if it is denied at the City Council level, the applicants will have exhausted their appeals, and another avenue might be an after-the-fact variance request. Thiesse asked if they would have to apply for an after-the-fact variance if the plans show the structure on it. Barnhart stated if Staff told them they could keep it during the review process, the remedy is not that Staff erred in applying the ordinance but rather the fact that they were misguided could be considered a hardship. Barnhart noted as-built surveys are required because things are sometimes fluid and typically it is not an issue. Curtis stated that is one of the reasons why a landscape plan is required. Curtis stated Staff requires the landscape plan to be shown on the survey. When the applicants came in for a building permit, they had a survey and a landscape plan that should have been incorporated into the survey. Curtis stated Staff is not interested in plantings but rather interested in hardscape. Curtis stated what Staff is approving is the survey. Schoenzeit stated if the applicants had provided elevations for the structure, this would be a different discussion. Landgraver asked if he would able to find documentation within ten days. Schutt indicated his parents should be back within the next ten days and that it is his belief they have all the appropriate documentation. Schutt stated he appeared tonight to show that they are willing to work with the City. Curtis stated Staff will also take another look at all the materials that were submitted. Schutt stated if there is documentation showing that, they would be willing to submit that. Lemke asked what would happen if it was depicted on the plans. Curtis stated even if it was on the plans and somehow it appears to have been approved by Staff by omission, Staff still does not have the ability to grant a variance. Leskinen noted what is before the Planning Commission right now is whether Staff applied the ordinance correctly based on the information they have before them tonight. VOTE: Ayes 6, Nays 0.