MICHAEL AND MOLLY SCHROEDER

Transcription

1 MINUTES OF MEETING BOARD OF ZONING AND BUILDING APPEALS FEBRUARY 13, 2014 *********************************************************************** Members Present: Farrell, Van Atta, Wright, Christ, Pempus Presence Noted: Andrew Bemer, Law Director Kevin Beirne, Building Commissioner ************************************************************************ Mr. Pempus opened the February 13, 2014 meeting of the Board of Zoning and Building Appeals at 7:00 p.m. in Council Chambers of Rocky River City Hall. 1. MICHAEL AND MOLLY SCHROEDER Avalon Dr. PUBLIC HEARING Variance to expand a structure occupied by an existing non-conforming use vs no such building shall be enlarged or expanded to increase he non-conforming use (Section (c)(2)); a variance to expand an existing non-conforming boat house with a gross floor area of 1,223 sq. ft. vs. a maximum of 250 sq. ft. gross floor area permitted for boathouses (Section (i)(2)); and a variance to expand an existing non-conforming boat house with a height of 25 vs. 15 maximum height permitted for boat houses (Section (i)(1)). Mr. Michael Schroeder, Homeowner, and Mr. Mark Reinhold, Architect, came forward to present the variance requests. Secretary Wright read the meeting notices and the names of the parties who received it. The applicants were sworn in. Mr. Reinhold began by explaining that they would like to improve the existing boathouse, which has an existing heating system, kitchen, bathroom and a sleeping room with closet. The boathouse has been in disrepair for quite some time and the flat roof structure, which has been built on many times, is failing and leaks. They plan to match the architectural detail and materials of the home and add a gable roof that will also match the house. They will not be adding any additional detail inside the boat house that is not already in the present one, with the exception of a second story access to the second floor deck area. The boat house will not be a full time living quarters and will be used by his family to cook and entertain guests. No utilities will be added to the second floor, with the exception of a light. Mr. Pempus pointed to an aerial photo and asked what the structures are that surround this property. Mr. Reinhold pointed out a 1.5 story structure that recently went through an interior remodel, including a second floor mezzanine, which also has a summertime use only. The other structure is an extensive deck system with a viewing platform that may have a height of approximately 25 to 30. Mr. Pempus said that this Board is charged with looking at whether this use is compatible with the district, which is why he asked that question. Mr. Schroeder said that they are basically just changing the flat roof to a gable roof and this structure will be for summer use only. The space will not be available for lease. Mr. Pempus mentioned the other considerations that this Board must look at by Code, such as hours of operation, volume and type of sales, the type of processing activity, volume of traffic being generated, etc. Mr. Schroeder said that most of those don t apply and that there will be no additional traffic generated by the boathouse. Mr. Pempus agreed and said he does not see a problem with any of those things. He said that one thing that concerns him is the variance being so large for the square footage. Mr. Reinhold said that all three

2 of the variances stem from their desire to have it look like a compatible structure to the building at the top of the hill. Mr. Schroeder said that the existing structure is already much more than 250 sq. ft. It is currently approximately 1000 sq. ft. and they are asking to go to 1250 sq. ft. Mr. Wright agreed and said that Mr. Schroeder just answered a question that he had and because of its current size, he does not consider it as big of a variance as it could be. Mr. Christ said that the submittal shows that the existing shed is 833 sq. ft. Law Director Bemer said that this Board really needs to focus on the use of this structure. It is an accessory structure that is habitable, which is what makes it non-conforming. They are asking to expand the building and this Board should address the expansion of a structure where a non-conforming use (habitability) is being maintained. The expansion is actually triggering this Board s review and the need for the other variances. Mr. Reinhold said that the floor upstairs really doesn t have a use except as a lid on what exists on the first floor and the footprint will not be expanded. Mr. Pempus said he has a flat roof on an enclosed porch at his house and he understands why they wish to change it. Mr. Christ asked if the structure would still be below the bluff if it were 25 tall. Mr. Reinhold said it would still be well below the bluff and that nobody would be able to see the structure so it will not impinge on anyone s view up above. Mr. Farrell confirmed with Mr. Bemer that a boathouse is a conforming use. He said that this is really not a boathouse because they are not putting a boat in it. Mr. Bemer said that they have a habitable second structure on a lot that already has a single family residence on it. Mr. Farrell said that there is some question about the existing sanitary system. Mr. Schroeder said that if they are allowed to move forward with this project, they will correct any problems and have it configured the right way. Mr. Pempus asked if Mr. Schroeder spoke to any of his neighbors about this. Mr. Schroeder said that he spoke with and ed his neighbors and they don t have a problem with this plan. Mrs. Van Atta said that she is very comfortable about this plan. There are no neighbors surrounding it and it already is non-conforming. They are not expanding the footprint or adding more bedrooms or bathrooms and she does not believe it will have a negative effect on property values or the neighbors in any way. She thinks the practical difficulties test are met in this case and she is in favor of the waste water system being changed so that there is no discharge into the lake. Mr. Christ asked if there is any access to the boathouse from the road. Mr. Schroeder said that there is no road and the only way to get to it is to walk through his property and traverse the hillside on the stairs that lead to it. Mr. Christ said that just because this happens to be habitable, which is the non-conformance, it is not like people can just drive down there easily and use it as a residence. Mr. Christ made a motion to close the public hearing. Mr. Wright seconded. Passed Mr. Christ made a motion to grant a variance to Michael and Molly Schroeder, Avalon Dr., to expand a structure occupied by an existing non-conforming use vs. no such

3 building shall be enlarged or expanded to increase the non-conforming use. The applicants have indicated their practical difficulty with correcting the deterioration of the building by adding a higher gable roof, which will slightly expand the interior space without expanding the footprint. Mr. Wright seconded. GRANTED Mr. Christ made a motion to grant a variance to Michael and Molly Schroeder, Avalon Dr., to expand an existing non-conforming boat house with a gross floor area of 1,223 sq. ft. vs. a maximum of 250 sq. ft. gross floor area permitted for boathouses. The applicants have indicated their practical difficulty with correcting the deterioration of the building by adding a higher gable roof, which will slightly expand the interior space without expanding the footprint. Mr. Wright seconded. GRANTED Mr. Christ made a motion to grant a variance to Michael and Molly Schroeder, Avalon Dr., to expand an existing non-conforming boat house with a height of 25 vs. 15 maximum height permitted for boat houses. The applicants have indicated their practical difficulty with correcting the deterioration of the building by adding a higher gable roof, which will slightly expand the interior space without expanding the footprint. Mr. Wright seconded. GRANTED 2. 38U2, LLC Hilliard Blvd. PUBLIC HEARING Variance to construct a garage addition with a 68.4 front setback vs. 75 front setback required (Section (a) and a variance to construct an addition with an 18 5 rear yard setback vs. 25 rear yard setback required (Section (2)). Mr. Michael Stewart, property owner and Mr. David Ducas, of Woodbridge Homes came forward to present the variance requests. Mr. Paul George, the next door neighbor at Hilliard Blvd., also came forward. Secretary Wright read the meeting notices and the names of the parties who received it. The applicants and concerned neighbor were sworn in. Mr. Stewart began by explaining that they currently reside in Bratenahl and recently purchased this home in Rocky River because they are downsizing and wish to be located close to his wife s parents. The home has a lovely view of Westwood Country Club and they love the location. They wish to improve the floor plan from the original, 1955 design and modify it to allow them to enjoy it more. For the front setback variance, they are asking to bring the garage forward a distance of 6 toward Hilliard Blvd. in order for them to put a stairway in the home that will be able to eventually access what they would like to have as a third bedroom above the garage. They do not intend to finish the third bedroom initially, but they would like that option for resale value down the road because the home should have at least 3 bedrooms. This stairway would allow them access to the bedroom without having to lose any of the small amount of square footage they presently have inside. By moving the garage out 6 to the south, they would be able to easily locate the stairs in an interior space that makes sense. Their existing front setback is 74.4 which is less than the required 75 front setback.

4 The variance in the back of the house is to allow them to maximize the view they have of the golf course behind them. This home sits in a unique spot that looks right at the creek and stone bridge at Westwood Country Club. The previous owners put an addition on the back of the house about 12 years ago. As new owners, Mr. Stewart said that they would like to open up the back of the home with bigger windows and sliding glass doors and the larger porch, which necessitates this variance, will accommodate their large family and many friends in the summer. The porch will be screened in and will not be enclosed, with the exception of a 3 high knee wall the view from the side would be through the screen they are proposing and would not be lost. He plans on putting a fireplace on the northwest corner of the porch and there is a chance they will leave a portion of the porch uncovered completely and just have it as a patio. They will be adding 6 to the back of the home, which would increase the interior living space and would not require a variance to do. They need a variance for the additional 20 of screened in covered patio they are proposing which will encroach 5 7 into the rear yard setback. Mr. George said he has lived there since 1985 and the view of Westwood Country Club is fabulous. He said that the rear setback variance does not concern him and presented some photos showing where he placed orange barrels to represent how far the additions will stick out in the front and in the back of the house. He said his only reservation is that the entire street has the same front setback and this would be the only house outside of the setback on Hilliard Blvd. The existing garage has an overhang on the east side, which the former owners put their trash cans under and he thinks Mr. Stewart can potentially expand the garage into that area and gain just about the same amount of space. Mr. Stewart responded that they will be using the space Mr. George is referring to when they expand the garages because they intend to construct a 3-car garage. The variance is necessary in order to allow them to install the stairway so that they can have access to the bedroom over the garage and allow them to still park cars in it. Discussion was had regarding other places the stairway could be located. Mr. Stewart said that he does not want to do much to the home and change what already exists. There are other ways to do what they want to do, but since he is an Engineer, from a layout standpoint, he believes it is the best place to locate the stairs in the new layout to make things work the best. The 3-car garage will allow him to park all of his cars in the garage and not have to store one off-site. Mr. Christ asked what the current depth of the garage is. Mr. Stewart said that the exterior dimension is 22.2 by Mr. Christ said that it appears that the existing garage is too small to allow them to locate the stairway in it. However, if they changed their roof style, they could actually fit the stairway somewhere else but Mr. Stewart is showing he wants to maintain a roof that springs from the first floor, so the stairway won t fit. Regarding the wall on the back elevation, Mr. Christ asked if the existing wall of the great room and master is the existing back wall of the house. Mr. Stewart said that they will be adding 6 of depth to the great room and master wall and then extend out an additional 20 for the screened in patio. Mr. Christ asked Building Commissioner Beirne if they would have to come back to this Board if they decided later to enclose the porch with walls and windows. Building Commissioner Beirne said that they would not have to come back because the variance they are asking for today is for a patio that has a roof over it. Adding walls and windows later will not require another variance. Mr. Christ said that is something this Board should keep in mind.

5 Mr. Wright asked if the master suite encompasses 2 previous bedrooms. Mr. Stewart said that the home has 4 bedrooms now, but their intent is to restructure the layout to make it more user friendly for an older couple. They like to entertain in a great room and would like to have plenty of closet space, as well as a bathroom with a shower and double vanity. Mr. Ducas added that they are trying to make doorways and hallways ADA compliant and as they exist now, some of the bedrooms are 8 x 11 and some of the hallways are less than 30 wide. They are trying to make this house have some practical livability. Mr. Stewart said that he wants to be a great neighbor and a great resident of Rocky River. He wants to preserve a lot of the existing home, rather than tear it down. He loves the old wood floors, the old crawl space beneath it, and the living room and kitchen layout. Aside from modernizing it, almost 2/3 of the home will be preserved. From Hilliard Blvd. the home will look just about the way it has looked since 1955, with the exception of a facelift on the front. Mrs. Van Atta said that she does not have any problem with these requests and she appreciates the previous discussion regarding placement of the stairway and how that affects the request for the front setback. Putting it another place would require a substantial rebuilding of the house and rooflines, etc. She thinks the first practical difficulties factor is satisfied in this case and believes it will improve the neighborhood and will certainly not be injurious. Although it will be set ahead of the other houses along the front setback by a small amount, she does not think it will be as noticeable, particularly in light of the fact that they are building a 3-bay garage. She does not believe it will make a huge impact on the other houses that exist along the front setback line. Mr. Stewart added that if they add together everything they are attempting to do, lot coverage will still only be 24.5%. Discussion was had about how far back the rear screened porch will extend in comparison to the cones that were set out there. Mr. Farrell said to Mr. George that he wants to make sure he understands that the cones are set nowhere near as far back as the porch will extend. It will actually extend 20 past those cones into the rear yard. Mr. Farrell said that nobody will look through Mr. Stewart s screen to get a view and he is concerned about the next door neighbors views to the side of the golf course. Mr. George said he did not realize that and he is here on behalf of his neighbors who are out of town, as well. It was determined during discussion that the 5 7 labeled on the plans, which represents the amount of variance needed in the rear yard, should read 6 7. Mr. Stewart said that if they didn t put the roof structure over the patio, it would take away their ability to put a sliding glass wall on the great room and create an indoor/outdoor living. If they were to make it 14 deep, it would be so narrow that they could not put any patio furniture on it for the fireplace and fire pit they are planning to put back there and it would not be a practical area to really enjoy properly. Mr. Farrell said that he does not necessarily agree with Mr. Stewart because he thinks they could stop the structure at the setback line and still achieve what he wants without affecting their neighbors any more than they are already going to. Because of the panorama of the golf course, views for the neighbors don t just extend straight out. The neighbors are used to views and he thinks this will cut into them drastically. Mr. Wright said that he does not see the issue of the 6 in the front that only spans the width of the garage as being a major issue from a design standpoint. However, he did not initially realize that the distance the rear structure will extend is as great as it actually is.

6 The drawings led him to believe that the existing rear of the house was actually the rear of the covered patio, but now he understand that it is not the case. Mr. Wright said that his concern is for the neighbors on either side and the fact that their side vistas will be blocked. Mrs. Van Atta responded that in those cases, this Board usually says that if the person likes the view, then they should buy it. Mr. Wright said he does not believe that applies in this case. Mr. Farrell said that statement is rarely spoken by him. Mr. Stewart asked whether he would need to be before this Board for a variance if he were just to build this covered patio to the 25 setback line. Building Commissioner Beirne said that he would not need a variance to do that. Mr. Stewart asked if he could build the porch to the setback line and then continue further with an uncovered patio, and Building Commissioner Beirne responded that he could continue with an uncovered patio into the rear setback. Mr. Christ suggested that they might want to withdraw the rear setback variance request and have an architect draw up the plans to see if Mr. Stewart can achieve what he wants to without needing a variance. Mr. Stewart said that he respects the fact that his neighbors are not here to defend themselves and it was not his intention to come in and all of the sudden build something that will be offensive to anyone. He said he is willing to live with the fact that this Board may not be able to accept this variance because he wants to make sure that he doesn t do anything that will upset his neighbors. Mr. Stewart said that he thinks he may be able to accomplish what he would like to without the need for a variance and he would like to withdraw his rear setback variance request. Mr. Christ made a motion to close the public hearing. Mr. Wright seconded. Passed Mr. Christ made a motion to grant a variance to 38U2, LLC, Hilliard Blvd., to construct a garage addition with a 68.4 front setback vs. 75 front setback required. The applicant has indicated the practical difficulties with adding access to a second story spare bedroom and this is a minimal reduction in the setback. Mr. Wright seconded. GRANTED 3. PETER CARROLL Erie Rd. PROTEST HEARING Protest to the issuance of a Zoning Certificate for a fence to be constructed in the side yard at Erie Rd. for Michael Marsilio (Section ). Mr. and Mrs. Peter and Amy Carroll, protestors, and Mr. Michael Marsilio, fence permit applicant, came forward to address the protest. Secretary Wright read the meeting notices and the names of the parties who received it. The parties were sworn in. Mr. Marsilio began by saying that he is requesting to do something that is allowed under the zoning and building laws of the City of Rocky River and Peter and Amy Carroll wish to place a restriction on his property, which does not currently exist. He said that the Carroll s hardship request is not stemming from a condition which is unique to their property because fences are located next to driveways of many houses in Rocky River. He said he drove around his street, as well as well as a couple of other streets near him and showed the Board many photos he took of fences

7 along driveways. Mr. Pempus said that this Board usually does not take into consideration other properties but he would let Mr. Marsilio show him one of the pictures. Mr. Marsilio said that the drawing he submitted shows his fence to be close to the property line when it is actually 1.5 off of the property line. Mrs. Carroll said that Mr. Marsilio s fence is currently on their property where it connects to their garage. She said that they did not protest that because they were being neighborly. Mr. Marsilio offered to disconnect the fence from their garage. Mr. Farrell asked if Mr. Marsilio has a survey of his property because he is curious how far his house is off of the property line. Building Commissioner Beirne added that he has not seen the survey, but most of the houses in that area are non-conforming. Mr. Marsilio said that his house is 36 from the property line. Law Director Bemer said that they are looking at a Mortgage Location Survey and if there is a real dispute about the location of the property line, then they will need to submit a Boundary Survey. Mrs. Van Atta asked Law Director Bemer to confirm that since this is a situation where the plaintiff has the burden of proof, case law states that the complainant has to prove at least a 20% damage to property value, as well as show that there is no other way to accomplish this legal use. Law Director Bemer said a substantial, probative preponderance of the evidence to demonstrate harm is required in this case. Mrs. Van Atta asked what constitutes harm when it is a legal use and a legal building permit. Law Director Bemer said that there is no 20% factor and that they addressed this in the Whole Foods protest. The harm needs to be particular to the subject property and needs to be greater than the harm suffered by the community in general. He said that this Board has to identify the use and the purpose of the fence because fences can be used as a point of antagonism. The complainant needs to demonstrate the harm to the use of their property and this Board weighs that evidence versus the need and use of the fence to the subject property owner. Mr. Marsilio said the fence will not stop the Carrolls from using their property. The purpose of it is to stop them from using his property because they are causing damage and creating a hazard. In addition, they have been known to drive on his property and he has pictures of the damaged window well that he was forced to replace because it is not designed to have a vehicle travel on it. He passed the photos around to the Board and said that the fence will protect his window well and his property. He showed a photo of the dryer vent on the side of his house that is covered with snow and said that it is a safety issue in that regard. He said his house is not designed to have snow touching it and when the temperature rises he will have water in his house again. Mr. Marsilio said that the Carrolls raised the elevation of their driveway by adding another layer of asphalt on it, which gives the water only 2 ways to go. Water will either travel down the driveway or into his house. Mr. Pempus asked if the fence he is proposing will solve the snow problem because it will probably go through the openings of the fence. Mr. Marsilio said it will take more effort to lift the snow and throw it over the fence, but it will still be possible. He said that he is a member of the Beautification Committee. He loves Rocky River and wants it to look pretty, which is why he wants a fence that matches the house and is not a solid wall. Mr. Marsilio said that the fence may cause an inconvenience to the Carrolls as they use their property but it is not a hardship.

8 Mr. Pempus asked Mr. Carroll if he would like to present at this time. Mr. Carroll thanked the Board for allowing them to come before them. He said that there is no evidence to prove that they did the damage Mr. Marsilio is describing. They believe the fence will restrict their ability to get into and out of their cars. He provided pictures and data to the Board and said it is mathematically impossible to be able to open and close the door with a fence there. He said that underneath the snow along the driveway, there are 2 to 3 boulders lining the edge which could very well be the reason why snow has built up there. He said that because the boulders are there, only one person can get into the car on the east side and nobody can exit the car on the right side. For the last 3 years, they get in and out of the car at either the top or the bottom of their driveway so they don t step on Mr. Marsilio s yard. Mrs. Carroll said that Mr. Marsilio came to their house and demanded money to fix his window well in He neglected to tell this Board that he has 2 children that came out of the gate of the fence he built and were running up and down the driveway. She said there is no proof that they were the ones who did that damage to his window well. As much as she knew the boulder placement was retaliation, she is actually glad Mr. Marsilio put them there now because they prevent them from having access to his property. She asked how they can damage his property if they cannot get on it. Mr. Carroll added that he met Building Commissioner Beirne about 14 years ago when Mr. Marsilio claimed he had water in his basement from the addition they were building. When Mr. Beirne came to see at that time, he told them that their addition has nothing to do with water on Mr. Marsilio s property or in his basement. Mrs. Carroll continued by saying that they have elderly relatives and two of them have walking canes, so it would be difficult for them to get them in and out of the house and car with the fence located there. She added that Mr. Marsilio has been trying to get them to pay for his home improvements and there is no evidence they damaged anything. She explained that when her daughter shoveled the driveway, someone had shoveled the snow back onto their driveway approximately two hours later. They also have a kind neighbor who plowed their driveway 2 separate times and her son told her that Mr. Marsilio was outside putting snow back in the middle of their driveway both times. When Mr. Carroll confronted him about it, Mr. Marsilio told Mr. Carroll to get his snow off of his property. She said that there is snow everywhere and they did their best with no malicious intent. She knows that Mr. Marszilio also puts snow on his other neighbor s property and explained that Mr. Marsilio recently called the police and police woman told her that Mr. Marsilio expects the Carrolls to carry their snow to the bottom of their driveway. She said Mr. Marsilio also called Councilman O Donnell who came and looked at the situation. All of this makes it difficult to say that this is not a spite fence. Mrs. Carroll said that the water will still go through the picket fence when it snows and that there is no proof they did any of the water damage Mr. Marsilio is saying. She said they were not aware that the dryer vent was an issue until the police came over. Mr. Carroll added that there is no neighborly conversation between the four of them and they believe it will affect the resale value of their home. Mr. Marsilio said that because the Carroll s driveway abuts his window well, driving on it is easy and he believes that the only way to protect it is to construct a fence. Mr. Farrell asked why he doesn t just put a post at the corner of the window well and whether the Carrolls intentionally throw snow on Mr. Marsilio s dryer vent. Mrs. Carroll said that she didn t even know the dryer vent was located there.

9 Mr. Farrell said that it is clear what is going on here and he is ready to vote now. Law Director Bemer said that he can see both sides of this story because putting snow on the side of the house can cause wood rot and make any seepage problems worse. He suggested that Mr. and Mrs. Carroll get a snow blower and keep the snow off of Mr. Marsilio s property. Mr. Farrell said that he thinks that they can all agree that is what needs to happen and that they don t need a fence. Law Director Bemer said that there is no legitimate purpose to putting a fence right up next to the driveway because it will impede anybody who is getting in and out of a vehicle, as well as restricts their ability to park any car in that section of their driveway. He said that there has got to be some other solution. Mr. Bemer said that he would not address this without boundary surveys being done. Mr. Pempus said that it seems practical to just extend the fence along the line of the existing fence. Mrs. Carroll said that her concern is that there is a history with Mr. Marsilio and she thinks it is probably logged in at the Building Department and now at the police station. Mr. Marsilio wants to hold them to a higher standard that he holds himself to. For instance, it is fine if he snow blows snow onto his other neighbor s property but it is not okay to have snow from their driveway on his property. They will stay clear and not shovel near the vent now that they know it exists. She said that the latest people who shoveled snow onto his property are a 17 year old girl and then a neighbor who was doing them a favor and there was no malicious intent to put snow anywhere. She said they are not in control of the weather and to tell a police officer that they are not to have one flake of snow on his property is out of their control, especially with high winds and drifting snow. She added that they now have to go home and wonder what he is going to do to them next because when he doesn t get his way, Mr. Marsilio retaliates. Mr. Marsilio said that there is plenty of room to park their cars in their driveway and still avoid the property between the houses. Mr. Farrell said that he thinks neighbors should be neighbors and they should shovel their snow away from his house and Mr. Marsilio should not put up a fence. It is as simple as that. Mr. Christ made a motion to uphold the protest to the issuance of a Zoning Certificate for a fence to be constructed in the side yard at Erie Rd. for Michael Marsilio. The Carrolls described their protest. The meeting adjourned at 8:15 p.m. 3 Ayes 2 Nays (Van Atta, Pempus) PROTEST UPHELD Eric Pempus, Chairman Craig Wright, Secretary Date: