MINUTES
An Administrative Appeals
petition has been filed by Mr. Mark Furfari.
In an effort to avoid any conflict of interest between Mr. Furfari’s
current appointed role as a member of the Board of Zoning Appeals and his right
to argue said petition, a special meeting of the Board has been called. As the only matter of business before the
Board this day, Mr. Furfari must recuse himself from deliberating on the
subject petition in his capacity as a Board member.
Members Present: Nick Iannone,
Jim Rockis, and Bernie Bossio.
Members Absent: Jim Shaffer.
Members Recused: Mark
Furfari.
Staff Present: Christopher Fletcher, Planning Director.
A.
BA06-01 / Furfari / Administrative appeal: An
Administrative Appeal filed by Mr. Mark Furfari to appeal an interpretation
made by the Planning Commission on case number
Fletcher
read the Staff report stating that Mr. Mark Furfari submitted a petition for
Administrative Appeal on
Fletcher
cautioned that Mr. Furfari must recuse himself from deliberating on the subject
petition in his capacity as a current member of the Board of Zoning
Appeals. In an effort to avoid any
conflict of interest between his appointed role as a member of the Board and
his right to argue said petition, a special Board meeting was called. As the only matter of business before the
Board this day, it is the opinion of the Planning Department that Mr. Furfari’s
presence should not be used to establish a quorum nor should Mr. Furfari be
allowed to take his place as a Board member at any time during the meeting.
Fletcher
voiced that it is the opinion of the Planning Department that the Board of
Zoning Appeals’ deliberation and consideration of the applicant’s petition
should be restricted to only the questions raised and not the merits of the
subject development. The Board should
consider the relationship between said zoning regulations and the subject
development to the extent that a determination can be made in how these
standards will be interpreted, applied, and administered to all future
development applications. Mr. Furfari
identified two issues in the administrative appeal. Fletcher suggested and encouraged separating
them and then handling them individually.
With the Board’s concurrence, Fletcher read #3 first so the people in
attendance could speak to that issue first.
Issue #3 – Number of parking spaces
provided by Castle development
The
provision and calculation of adequate parking is a concern throughout the
community and may arguably be the motivating factor in the petitioner’s
appeal. The subject development provides
the number of parking stalls as required under the zoning ordinance. It is the opinion of the Planning Department
that the Board’s deliberation and consideration of Issues 1 and 2 above should
not be weighted on whether enough parking will be provided or whether the
ordinance underestimates parking demand for these use types and/or within the
B-1 Zoning District. The merits of these
policy issues are worth scrutiny.
However, this scrutiny and related policy amendments are entrusted to
the Planning Commission and City Council.
Issue #1 – Article 311.05 “Building
Height, Use and Size”
(B) The maximum height of a principal structure shall not
exceed three (3) stories or forty-five (45) feet, except for
small scale shopping centers, which shall not exceed two (2) stories in height,
or thirty-five (35) feet. Exceptions to
this provision can be found in Article 400.02(A), Height Exceptions. (emphasis added)
The
general purposes of controlling building height through zoning regulations are
to control the density of development, mitigate adverse impacts on surrounding
buildings and view sheds, and to keep buildings within the protective capability
of fire services.
There
are three general methods of controlling building height through zoning
regulation:
Story-based
height restrictions are commonly used for low density residential zoning
districts while distance-based height restrictions are commonly used for higher
density residential, mixed-use, and higher-density non-residential zoning
districts.
Measuring
height on sloping terrain can become problematic. To address this, communities generally apply
either option #1, distance-based standard with averaging techniques OR option
#3, a combination distance and story-based standard. The latter policy approach regularly includes
three critical qualifying standards:
The
concept of restricting the number of stories in
The
January 3, 2006, zoning amendment included story-based minimums and story-based
maximums combined with distance-based maximums.
The operative term used in the combined height restrictions throughout
the zoning ordinance is “or”. No where in the zoning ordinance concerning
height is the operative term “or”
qualified with “whichever is less.” Additionally, the ordinance is silent in determining from where
story-based height is to be measured – i.e., front elevation of building versus
elevation at any one point (see sketch below).
The
ordinance is, however, clear in determining from where distance-based height is
to be measured:
BUILDING HEIGHT – The vertical distance measured from
the lot ground level to the highest point of the roof for a flat roof, to the
deck line of a mansard roof, and to the mean height between eaves and ridges of
gable, hip, and gambrel roofs. On lots
with topographic elevation changes, the lot ground level shall be construed to
mean the halfway point between the highest and lowest elevations of the
building footprint. (Article 201
“Definition of Terms”)
In
reviewing the Castle development application, the Planning Department applied
and maintains a literal interpretation of the height restriction based on the
following three (3) factors described above:
Mark
Furfari,
Mr.
Furfari believes that Mike will try to argue his case that there was an
intention. There were clear drafts
presented at certain times without story restrictions. Mike went through a change of Planners and a
change of the code. That kind of
explains why we’re here today. He asked
that the Board agree with him in what he is proposing and we’re setting a
precedent. He believes that height
restrictions and story restrictions are two integral pieces of this code; not
one or the other, or either would be in the verbiage. Each and every zone has a height restriction
and a story restriction, except B-5, shopping centers. He argued that the Board understand that your
decision tonight will determine how property developers will interpret this
code. This code has made a lot of
aggressive changes that B-1s can be adversely affected because of their
proximity to single-family residential areas and you must be careful to protect
the neighborhoods.
Bossio
asked if he was in support of the project at the May 11th meeting.
Furfari
said that we came to that meeting and I spoke on behalf of the project. That piece of property is blighted. My wife and I shared our concerns as to the
density of this project and its impact on the B-1 district and the R-1A that
borders it.
Bossio
requested his definition again for “either” instead of “or”.
Furfari
stated that if you want an individual to be able to use one number or another
number, he believes that the first number should be prefaced by “either”: so
you have either this or that. He
believes it is a combination of two restrictions. He asserted that the Planner had indicated
some verbiage about “whichever is more”, “whichever is less”; none of that is
in there.
Bossio
commented that a lot of the reason we are here today is because it isn’t clear
and we are setting precedent for the future.
Furfari
answered yes; it has to do with the interpretation of these codes.
Bossio
clarified that you would agree that there is a problem with the interpretation
because it is not black and white, but gray, on whether the word “either” or
the word “or” mean the same thing or different things.
Furfari
answered that either and or, used in conjunction, clarifies.
Bossio
affirmed that the problem is with the definition as it was passed on January 3,
2006.
Furfari
replied obviously: but there is not a problem with stories. I can count stories; it’s pretty easy to
count. It was represented as a
three-story project and its not. Let’s
call it what it is and let’s deal with the code and the variances and
conditional uses that are a part of going through that process. Mike has communicated to me, a number of
times, that he doesn’t want to go down that road. Most developers don’t want to; why would
they? They don’t want to put their
project in the hands of a Board to make decisions on whether something is okay
or not. I understand that but I don’t
agree with that.
Bossio
stated that he was not at the Planning Commission meeting and wondered if there
was anything available to show the “topo” of the land, and asked if the building
is three stories on one side and four stories on the other side?
Furfari
answered that the rear of the property, on
Bossio
addressed splitting the difference between the lowest and highest points where
they talk about measurements further in, and asked, if you took that would you
measure it as a 3½-story building?
Furfari
replied that I would measure stories by the front of the building and the
address of the building. The back of the
building, from
Bossio
asked how do you feel that the situation when Mr. Castle started this project,
prior to the new zoning, and are you familiar with what the old zoning was as
far as story requirements?
Furfari
responded that there were no story requirements.
Bossio
suggested only a footage requirement.
Furfari
answered that I understand that is correct.
Bossio
questioned so how do you feel that translates.
We used to have a footage requirement and now we have a story or
height requirement.
Furfari
replied that it means that Mike started with Jim Wood on this project. Jim said this was an opportunity to take care
of a blighted piece of property. Mike
did the numbers and couldn’t make it work.
Jim said that change is coming and this appears to be the change –
45’. Mike figured it out and thought it
would work, and waited until the new code.
But this particular project was presented to the Planning Commission
under these rules. The BZA’s job is to
review that and say well, he’s kina caught in this thing and that’s what this
BZA hearing is about. This group
addressing it and addressing why is it four stories instead of three. Maybe you need a variance or conditional use
for that additional story and this is how I plan to manage your density
concerns. These are the rules and I
don’t think we can look back. For
example, the next developer will be in here and, staying within the 35’, will
think he can get away with 71/2 stories and.
Would you want that next to your homes?
So it’s not one or the other, I think this Board needs to manage both of
these numbers. I still believe the 3 and
45 is out of whack.
Bossio
asked if the bottom line is that it is a gray area; not clear?
Furfari
answered yes.
Iannone said, for the record, we are requested to consider the zoning ordinance as it stands. If the applicant has an issue of being caught by the changes of ordinance; that would be a discussion we could have. The ordinance, as it stands, is how we will determine the application.
Iannone asked for public comments.
Michael
Castle,
Iannone
asked if in your petition to the Planning Commission, did you present it as a
3-story building?
Castle
responded that actually I don’t recall what I wrote on the application, said it
was under the 45’ height. I don’t know
if it asks for a story. A Development of
Significant Impact would have a list of everything you have to have there. There are four levels to the building; three
levels of residential use and 200’ of retail space and the rest is
parking. The development is three
stories from Ridgeway and four stories from Richwood, specifically because of the
drop in the topography. It would clearly
state that on my site plan and the building height: the highest point and the
lowest point were mentioned (38 and 45), the amount of spaces, amount of
handicapped spaces, the appropriate setbacks, percentage of landscaping,
everything you have to do to be in front of here. But I don’t believe that the application,
itself, which asks for my name, who I represent, etc.; the supporting
documentation is provided after. On my application,
I never put down that it was three stories, I don’t believe.
Fletcher
stated I believe you did. It was the
predominate issue: facing Ridgeway was three stories. But on your renderings, it was clear that
evening that it was three stories on Ridgeway and four stories on
Richwood.
Castle
asserted that the elevations would absolutely show that.
Fletcher
explained that the question is: from where do you measure the story and it is
not defined in the ordinance.
Castle
replied that, in the ordinance, it does say that if it is distance, you measure
halfway between the highest and lowest.
Fletcher
replied correct, it does say less than 45’.
Bossio
requested to talk about the parking; item #3.
Fletcher
clarified that we will deal with that issue separately.
Bossio
asked that whatever you want to call the lowest level of this building, is
there another level I do not see, such as a basement?
Castle
responded that there’s an elevator pit.
Bossio
asked for clarification that there’s no storage or anything 100% below grade,
under the parking area, that has no daylight.
Castle
answered that it would be similar to a walkout basement for the Ridgeway
component of the building.
Bossio
asked if that would that be considered a story as we look at it.
Castle
commented that I guess we’re determining what a story is. It’s the corner component of the Ridgeway
side. It’s 14’ below grade. The opposite component of that is at
grade. It is a very unique site. From the cornermost it is 14’ high to the
John
Krouse,
Dear Mr. Fletcher,
At its July 9, 2006 meeting, the
Woodburn Neighborhood Association voted to draft a letter to you expressing our
concern over the project
known as Castle /
The Woodburn Neighborhood Association first convened in May
2006 with a goal of fostering a strong sense of community and assuming an
active role in increasing the quality of life in the Woodburn area.
Among the Woodburn Association participants, there is a
general excitement and interest in the quality development of the Richwood
property. That corner has been an
eyesore for years. Our concern with the
proposed project arises over the inconsistencies in the proposal approved by
the Planning Commission, specifically the interpretation of the
Zoning Ordinances stories/height requirement, the number of living units and
the impact of parking on current residents and businesses.
A review of the Morgantown Zoning
Ordinance reveals the following information we find pertinent to the
The minutes of the Planning
Commission reveal a contradiction over what is actually being proposed. The following two excerpts from the minutes
evidence this contradiction:
What disturbs us about the
Planning Commission decision is this:
This decision by the Planning
Commission seems counter to the work that has gone into the re-thinking of the
Zoning Ordinance for our city. How did
the Planning Commission arrive at their decision that the proposed building was
a conforming structure when the Zoning Ordinance appears otherwise? If there as some logical thought process that
guided the Commission to its decision, it is not apparent in the minutes of the
meeting. Will future developers
successfully skirt zoning standards by employing the “it’s on a hill, so we can
throw out the story requirement” argument?
We close by restating that we
welcome positive growth in our neighborhood and request that this case be
directed to the Board of Zoning Appeals for further consideration and
clarification.
Sincerely,
The Woodburn Neighborhood
Association
Contact: Acting President, Susan Eason, 296-2415
Karen
Woodfork,
James
Giuliani,
Iannone asked for further public comments. There being none, the public portion was closed.
Iannone
thought it was important to maintain the…called for quiet.
There
was discussion about people misconstruing the closed session as a non-public
portion of the meeting.
Iannone
asserted that the petition seems to have a few different things going on
here. One is the confusion with the
ordinance as it is written and the other is how did the Planning Commission
approve this application when it does seem to not be permissible under the
ordinance as I see it written. I
understand Mr. Castle saying it wasn’t presented to him that way, but I know
what I see in the ordinance, and it doesn’t permit a 4-story building.
Rockis
stated that the Planner says that it fits under the ordinance, as I see it.
Fletcher
clarified that my position, in the staff report and at the meeting, was that it
fit within the ordinance because the ordinance doesn’t tell us from what point to
measure stories, but it is quite clear on how to determine distance-based
requirements. My position, in reviewing
the application and preparing the staff report, was that denying the
applicant’s project based on unclear policy could have been argued as an
arbitrary and capricious decision.
Rockis
offered that your opinion that what the developer wants to do complies with the
ordinance.
Fletcher
replied that with the way the ordinance is written: correct.
Rockis
asserted there you go; that’s how it was determined.
Iannone
pointed out that raises the question, how do we count stories. Do stories only count when they exist above
grade?
Bossio responded that I still go back to the word of “or”. The City Planner, in the staff report, has the emphasis on “or” and my definition of either and or. Mr. Furfari said something to the effect of one or the other. I’m trying to find if we have to have them both; do they have to comply with both. Unless someone can tell me differently, I’m looking at it as “or”, which means three stories or 45’. If I build a ranch home and it’s on sloping property, the basement finished with stone and it looks like a part of the house, but on the other side, it’s a one-story house. I don’t consider the basement as a story. When I’m having stuff appraised, anything below ground, even a small portion or percentage, is basement and cannot be considered part of the square footage of normal living areas above ground. I look at what Mr. Castle has provided me, it’s on a sloping piece of land, there’s three stories here and four stories here. This whole backside of the building is underground, correct?
Iannone
answered right.
Bossio
stated that when an appraiser goes out, even with a bunch of basement exposed,
it is still a one-story house.
Rockis
said you’re making sense. The Planning
Commission wrote this ordinance. I sat
with them when we were reviewing the ordinance.
This is what happens whenever you don’t have a group of individuals who
have experience with this stuff going over it so you can ferret out the
problems like this. I knew this was
going to happen. Now you have a guy who
has complied with everything he was supposed to do and we’re going to hold his
feet to the fire.
Iannone
understands Bernie’s point of not considering a basement to be a story. But a building on different faces, has above
ground floors. If part of the building
is below grade, would you consider it to be no longer a story or floor of that
building? Further, as one of the persons
during the public portion pointed out, certainly three floors do have an impact
on the local neighborhoods. Whether
below grade or not, they have a use.
That use, the parking requirement, will impact the neighborhood.
Rockis
argued wait a minute, how does the floor impact the neighborhood relative to
the parking requirement?
Iannone
replied because it contributes to the density and the use of the building. If the building is one floor, there’s going
to be a certain amount of traffic. If
the building has four floors, there’s going to be a different amount of
traffic.
Rockis
relative to the number of parking stalls.
Is that what you’re saying?
Iannone
answered yes.
Rockis
asked what if you have a bigger piece of ground? The parking is proportional to the size of
the building. When we went over the
ordinance, we all agreed that this was okay.
I know I did.
Castle
tried to interject.
Iannone
pointed out to Mr. Castle that the public portion was closed.
Rockis
asserted that the stuff is all proportions; it should work if you have a
half-acre piece of ground and it should work if you have a 30-acre piece.
Iannone
said that I do not understand your point as to the size of the property as far
as acreage, certainly the size of the building.
I don’t understand why you don’t think the size of the building has any
relationship to the impact on the neighborhood.
Rockis
remarked that size is dictated by the size of a piece of property. I don’t think we have a specific footage
requirement in the B-1 zoning district, do we, Chris?
Fletcher
asked, as far as lot coverage?
Rockis
replied, as far as the size of the building in a B-1 zone.
Fletcher
answered no, just lot coverage.
Iannone
said that I think that is the point of the height and the story limitations
that are in the ordinance, which has nothing to do with the size of the
lot. I think that is the issue here;
what are the height and story requirements in this zone? How will we interpret this restriction; is it
“or”? Should we consider it as written
to mean ”or”?
Bossio
responded yes, that’s what it says.
Iannone
added that it certainly seems so.
Rockis
commented that’s how the Planner interprets that.
Iannone
replied that’s the Planner’s interpretation, but it has been brought before us
and we need to decide how we are going to interpret it. I remind you that we consider this ordinance,
not only for the benefit of the developers, but this ordinance is for the
benefit of all the citizens of
Rockis
stated that I’m not arguing about that, but you have to have a guideline when
somebody comes in and you’re going to put all this money out. He’s spent thousands of dollars trying to
meet specifications that he was told to meet.
Then, all of a sudden, this is wrong, after he goes in front of the
Planning Commission.
Bossio
observed that the Planning Commission didn’t believe anything was wrong; they approved
it.
Rockis
answered that I realize that. After he
came in front of the Planning Commission and got his site plan review or major
impact,
Fletcher
clarified with Development of Significant Impact.
Rockis
added then he comes in front of us and is told he is wrong.
Iannone
questioned that you think there’s no ambiguity at all in the ordinance?
Rockis
answered I don’t know.
Bossio
stated that I personally think there’s an ambiguity.
Iannone
said that is the reason we are here, to address the ambiguity in this
ordinance. We have to come up with an
answer.
Rockis
commented so you’re going against what the Planner recommends.
Iannone
replied that, actually, I’m just being a devil’s advocate and trying to present
the issues for all its merits that I can think of.
Rockis
commented so let me say that there’s a lot of things I can’t agree with how the
Planning Commission looks at something.
So how are we going to handle that?
There are many, many areas come through here and I look at the Planner
as being the expert.
Bossio reflected that I know that when the new zoning ordinance came up for adoption, I was part of that process too, we knew that there were going to be problems; there were some contradictions, not just height requirements, signage, zoning problems.
Iannone
thought that under the best of circumstances, that there would be
problems.
Bossio
advised that there’s change so there’s going to be human error.
Iannone
doesn’t think we should throw out the baby with the bath water because we have
problems.
Bossio
didn’t disagree with that. I don’t think
this is a bad ordinance; just think that it's I have a problem with gray. I like to look at things in black and
white. To me, it says three stories
OR. Or, that’s the key word for me: or
45’. I kept going over this in my head
for the last 24 hours saying what does that “or” mean to me, and to me it means
I can have this OR this. It doesn’t mean
that I have to meet them both.
Iannone
agreed.
Bossio
said that I think that “or”, right now, means that Mike is meeting 45’. Stories to me are a new thing. This zoning thing is kind of new and like Jim
said earlier, Jim Wood we were so tied up in the grammatical part of it and
making sure the sentences had the right period at the end of them, commas,
etc. On several occasions when I brought
up certain situation that I saw potential problems with, it was said, we know
we’ll be able to over the next couple of years; defining some of this and
changing some of this because there’s going to be problems. We needed to read it through. Why we needed to rush it through I don’t
know. To me right now on this height
requirement, “or” means everything in the world to me. Is there a definition of story? Do you have that handy? Is this definition of a story our zoning
definition of story?
Fletcher
answered yes; actually one of the speakers read it to you but I can read it
again. It is a zoning definition for the
term story. Story: That portion of a
building included between the upper surface of any floor and the upper surface
of the floor next above, except that the topmost story shall be that portion of
a building included between the upper surface of the topmost floor and the
ceiling or roof above.
Bossio
offered but it doesn’t state where that measurement begins or am I missing
that. In other words, going back to my
house situation, where my basement is, if I live in a 1-story house and I could
see most of the basement at the rear of it, however it is positioned on the
site, maybe from the side of it I can see two stories.
Fletcher
explained that of what I read: the other term that would be related to story
and height, I think it’s in the staff report, the vertical distance measured
from the average grade level at the base of the building to the highest point
of the roof if the roof is flat or mansard, or to the average level between the
eaves of the highest point of the roof if the roof is of any other type. Height calculation shall not include
chimneys, spears, towers, elevation mechanicals, penthouses, water tanks, radio
antennae, or similar projections. So
there’s the averaging component in the height, which is related to the distance
measurement.
Bossio
commented that still that part that I keep going back to, that basement, it
doesn’t say like the chimneys and stuff like that, that a basement is not to be
considered a story, does it?
Iannone
replied that it doesn’t.
Rockis
asked Chris, Figure A or Figure B, which do you say is 2 ½ stories?
Fletcher,
referring back to the staff report, said that it’s clearly stated from what
vantage point Normally, what I have
seen more often, is the front part of the building. What you determine your front setback is,
what’s the primary. So for Figure A and
Figure B I would say Figure A because that’s where the street is. Of course, the illustration doesn’t include
several unique situations with this particular development. You’ve got four frontages. This is just normally a house, usually in
residential areas that are stories, usually 2½, or lower densities. That’s why I used that particular
illustration to demonstrate that point.
Iannone
said that the question for me was with a situation like which we find ourselves
in now, how would we determine the front of the building?
Fletcher
replied that the front would be . . . . .technically, there’s four fronts by
the definition of the zoning ordinance.
Iannone
didn’t think so; it has been my experience that the ordinance always chooses
one side of a piece of property to be the front.
Rockis
responded that it’s always been the narrowest for the lot. But the way I saw this, basically you can
name whatever one you want or the Planner can name one.
Bossio
answered I know what you’re talking about and we’re all kind of right
here. The narrowest portion of a lot is
considered the front, but that’s for the lot itself. The dwelling or the structure itself . . . .
Iannone
replied no, that’s not true. We’ve had
to consider many situations and critical to the decision was what is the front
face of the building, not just the lot, but the building itself should be
according to the ordinance, be able to be determined which should be defined or
what should be declared the front. I
don’t think it’s quite as arbitrary as Jim just made it out to be.
Rockis
observed yes, it is. You’re working in
the past, like I used to. As it is
defined in the ordinance, it is very arbitrary.
Is this going to impact the next portion of the case also? You’re kind
of delving into that. Just as a
suggestion, I think we’re going to have problems determining the first portion
tonight and may I suggest that we maybe have a continuance and start on the
next section and then maybe come back to what we are discussing now.
Bossio
said that I wouldn’t mind that, but to me, this is the definition of the word
“or” and I can’t get past that. On this
first portion here, I can choose this or this, so it’s clear for me.
Iannone
inquired, do you agree with that statement he just made, Jim?
Rockis
replied yes, I do, at this time.
Iannone
added I have to admit that I do so as well.
The ordinance, as it’s written, does seem to be ambiguous as far as that
issue is concerned. Whether I agree or
disagree that’s as it should be written is another story, but that is the way
it is written.
Bossio
stated I agree with you there. I would
like to throw back in the Planner’s lap, now you need to go and draft something
new to clear this up and to get it in front of Council to be approved and added
to the zoning and change the zoning so it is clear.
Fletcher
advised that whatever decision you make on one or both of these issues, the
administration is fully prepared to take this back to City Council for
clarification; should it be A or B, OR A or B, whichever is less. That’s up to City Council, but they really
need to pick between the two.
Rockis
cautioned that the Planning Commission is the one who needs to recommend how
they see it. You would have to bring
this to the Planning Commission first.
It’s clear to me how they see it.
It says “or”. That’s how they
voted on it. I think it was a unanimous
decision.
Iannone
replied I would disagree with you there, but I don’t think our place here is to
try to plumb the depths of their intent.
We have to recognize what they have written and it is ambiguously “or”.
Bossio
implied making a motion that . . . . .
Furfari
reminded the Chair of his opportunity to respond.
Iannone
said that Mr. Furfari, you are correct and reminded him of the five-minute time
limit.
Furfari
related that the Planning Commission had a staff report that called this
project 3-story. It’s as simple as
that. It was presented to them as a
3-story project. That is why they voted
in favor of it. If it was presented to
them as a 4-story project, which it was and is, my guess is that the vote may
have been a little different, considering the fact that the requirements are
3-story or 45’. This Board has also not
addressed, at all, the inconsistencies of the 15’ story in a B-1. These neighbors came in here and told you
they have concerns. They live next to
this. They live in this neighborhood and
this Board is moving down a path of feeling sorry for Mr. Castle. Mr. Castle’s presentation was not directed at
the specifics of my appeal. It was based
upon his plans. He should have saved it
for the BZA review, which, in my humble opinion, it should go through. With proper notification, with proper
neighborhood involvement, etc. I think
it would be a big mistake for this organization to interpret something that
“or” is giving as “either/or” and it doesn’t say either/or; it says “or”. Those are two distinct things that are
together in determining how a building should be. You are opening yourselves up, as a
committee, to really ANY opportunity of a developer to come in and look through
this and make a decision on what he is going to build based on one or the
other. They are together; they are integral
and an important part of Planning. We’re
all citizens here, but you don’t live in that neighborhood. These folks live in that neighborhood and I
work in that neighborhood. I don’t think
their voice should be ignored. Excuse
me, it’s not being ignored, you listened to their points, but I am concerned at
the direction you are taking this. The
young lady said rule on the side of conservancy, but I sense the direction of
the Board is not moving in that direction.
This project deserves the scrutiny of these codes. The problem, 15’ stories, maybe we’ll get
this problem fixed in another six months.
That’s not the building next to your house that’s getting prepared to be
built with 36 bedrooms, 1270 square feet of retail space, and 20 parking
spaces. Thank you very much for
listening.
Rockis
asked Mr. Furfari, when you started your rebuttal, it’s my opinion that you
feel that this project was misrepresented to the Planning Commission.
Furfari
said the staff report indicates three stories/45’. It’s not a 3-story building: that is correct.
Rockis
clarified that you’re saying it was misrepresented.
Furfari
claimed what I’m saying is on a piece of paper.
Look at the piece of paper.
Rockis
remarked then you’re saying the Planning Commission folks on there are not
capable of looking at that. He had a
very nice plan up there and they couldn’t tell that that thing was three or
four stories or whatever?
Furfari
said I’m saying this project started under Jim Wood and it was fostered by Jim
Wood. Jim Wood was integrately involved
in this project, not as the Planner.
When do Planners call up developers and take them to meet owners?
Rockis
asked what’s wrong with that?
Furfari
stated but Jim Wood is gone and the ball is passed. In this gentlemen’s defense, he was handed
the ball and the ball was pretty well formed.
I have to ask why, on that report, didn’t it say four stories/45’?
Bossio
asked can I add something to this?
Furfari
clarified that’s why I put the Administrative Appeal in. I’m trying to stay away from the project
‘cause it seems to be a discussion about the project. We’re talking about the interpretation of
this.
Bossio
observed that when you said that the Planning Commission might have voted
differently, Jim Rockis just said and I have to agree with him on this point,
just like when you’re sitting here with us, and we have all the plans and stuff
handed to us, . . . . .
Furfari
responded that it’s a bit overwhelming; there’s a lot of stuff there.
Bossio
remarked that when it’s handed to us in enough time, I go out and look at the
projects. I look at the site and I go
through that stuff. Maybe because that’s
what I do for a living, I can read a set of blueprints.
Furfari
replied, you’re living as a developer; that’s your business?
Bossio
answered yes; so when I do look at it, one of the first things I look at is the
elevation shots. It’s very clear to me
on the elevation shots: height, the left, the right, usually there’s this
thing; the arrows and the number over there, story-wise, depending on the slope
of the land. I don’t have the plans in
front of me, but I might look at it, right now, and say that it is 3 stories
because any time I consider anything below grade, I don’t consider that a story
part of the building. As a matter of
fact, Mr. Giuliani referenced the
Furfari
responded I don’t know.
Bossio
said there’s a part of it visible on the back side. Is it six stories, Chris?
Fletcher
stated that I’d have to go back to the old ordinance on that. If it came in today, I still don’t know.
Bossio
indicated that they were approved for a 5-story building. Is that correct, Jim?
Rockis
replied as far as I know.
Bossio
noted that when you drive on Burroughs, there’s five visible stories. There’s a basement below: does that make it a
6-story building?
Furfari
asked where’s the front of the building?
Bossio
replied where’s the front of the building on this?
Furfari
commented that if this building is built as Mike proposes it, every day that I
walk in and out of my business; it will clearly be a 4-story building. The front of the building and the address of
the building is
Bossio
asserted so if you lived on the other side and you came out of your residential
front door and looked at it, you would say it was a 3-story building then,
wouldn’t you? It’s your definition. You just said, when you walk in and out of
your business, you’re going to see four stories there.
Furfari
said right.
Bossio
asked if you lived complete opposite of that building in a residential house,
when you walked out your front door, how many stories would you see?
Furfari
stated that I would see three stories if I was on Ridgeway. But if I was on
Bossio
inquired the back street?
Furfari
answered
Bossio
explained that I guess we’re not getting into the parking issue right now, but
from some indication that I got from you, is it more of a concern about the
parking. You’ve stated it two times now,
exactly as you just stated there’s only twenty parking spaces for this number
of units and retail space.
Furfari
claimed just trying to describe the configuration, trying to stay away from the
P word, because that’s not what we’re here to discuss. We’re here to discuss density and the
interpretation of this Board. Every zone
has a heighth and story restriction.
There’s a reason for that and I believe the reason for that is they are
both an integral part of determining whether a building fits into a particular
area. In a B-1, where you were talking
about a single-family right next to it, I think it’s pretty important. In a B-4 and a B-3 is where you’re not having
to go to bed at night trying to find a place to park and/or deal with the
congestion of a density.
Bossio
suggested that across the street from what you call the front of this building
is B-1, that’s you.
Furfari
answered correct.
Bossio
said that on the back side, what you’re calling the back side . . . . .
Furfari
responded the name of it is Ridgeway.
Bossio
. . . . .is residential, so it is three stories.
Furfari
declared on the back side, but on the left side it’s four and on the right side
it’s four. On the right side you’re
right next to a home. On the left side
you have
Iannone
said I think it could be easily argued that . . . . .
Bossio
answered that’s why we’re here.
Iannone
was just trying to make a point. We
could easily argue that the Planning Commission inserted these two clauses into
the heighth restrictions, thinking they were both restrictions and would
operate concurrently, either 45’ with three stories. It’s not the way it’s written.
Rockis
noted that I would have used “and” in there somewhere.
Iannone
replied right.
Rockis
asked the Planner, did you talk to Jim Wood about this and what was his
interpretation.
Fletcher
answered yes. From my discussion with
him yesterday, the distance standard from the previous amendment was always
proposed under the new amendment and the story component was included in
November. He wished he could have had it
written properly so that it was clear.
He concurred that it was not written correctly.
Iannone
inquired if it should be written as “and”?
Fletcher
replied actually, no. He would have
preferred that it be written A or B, whichever is less. It’s always two ways: either A or B (one
way), (second way) A or B, whichever is less.
Or you just stick with one standard.
The other thing, the question you have struggled with, the story based
restriction, from where do you measure the stories; the ordinance doesn’t say
where to do that from.
Bossio
observed that in your Figure A over here, again this is interpretation, you’re
showing this as 2½ stories in Figure A including that gable roof section.
Fletcher
said right.
Bossio
commented that to me a story is a live-able area, not a roof section.
Fletcher
remarked that when it’s a finished attic or something; I was thinking of a
Bossio
observed that I don’t think the neighborhood association threw in there,
Fletcher read the staff report . . . . .site plan approval for a 3-story, but
in #2, Mr. Castle later adds this property has two elevations, Richwood would
appear to have a 4-story building. If
they were quoting from that night, they would have had to have looked; it was
there. They’re saying that’s what Mike
Castle said, four stories.
Rockis
stated are you looking for something as far as a Finding of Fact because, in
the past, when we had an Administrative Appeal, it was yes or no.
Fletcher
advised that I would assume you could use the process as in the past; I was
unaware of that. I assumed that,
whatever decision is made, you should craft a statement as to what you based
your decision on. Personally, I would
feel more comfortable with that.
Rockis
noted that we’ve had two of these in the past.
Fletcher
indicated we used the same application.
Rockis
cautioned that I think that Mr. Castle and Mr. Furfari are after an answer,
something beside yes.
Fletcher
noted that the application for Administrative Appeal has been used for years
and nowhere does it ask for Findings of Fact by the petitioner.
Bossio
commented that we’ll just have to have a motion and it will carry or not carry;
and some sort of statement adding to it, like, I would like to make a motion A:
I feel this definition of “or” is one or the other and therefore I feel the
Administrative Appeal should be denied or B: I think that “or” means they
should both be combined; it should be the lesser of the two. So the motion also has to carry the answer.
Rockis
explained that if this is going to create precedent, at least we’ll have
something to refer to.
Bossio
suggested that until Mr. Fletcher can get it in front of whoever needs to
clarify this. I think something has to
come out of this tonight and get immediately before Council to amend, to
clarify.
Rockis
warned that it has go to the Planning Commission first.
Bossio
agreed right, then to Council to approve it.
But I would like to add that, beside the or in there, we need a better
definition of story.
Iannone
stated that the first question is building height use and size so we need to
determine how we interpret what has been written into the ordinance about the
maximum height or three stories. What
I’m hearing is a literal interpretation meaning that the developer gets to pick
and choose. As long as he conforms to
one of these criteria, he should be allowed to proceed.
Fletcher
observed that there were several discussions that using 45’, you could get as
many stories as possible into it. We
still have a building code and the height of a story.
Bossio
said that I’m going to bring that up.
Fletcher
argued that you can’t call 6’ of live-able space a story, I would assume, under
the building code. There are more
guiding factors there.
Rockis
clarified that we can have a motion that we concur with the City Planner’s
interpretation of this ordinance. Maybe
something like that?
Iannone
asked him to take a stab at that.
Rockis
moved that Mr. Furfaris’ request for Administrative Appeal be referenced to the
fact of the City Planner’s interpretation of the Ordinance Article 311.05 is
correct
Iannone
and Bossio together crafted the Board finds, after considering the
Administrative Appeal brought by Mr. Furfari, that we interpret Article 311.05:
Building Height, Use and Size to be consistent with the City Planner’s
interpretation and therefore, deny Part 1 of the Administrative Appeal.
Rockis
made the above motion, second by Bossio.
Motion carried unanimously.
Fletcher
responded that I will note that in my communication to the Planning Commission
and City Council, in regards to potential amendments relating to this issue,
that your concerns of the ambiguity and request for clarification or improved
language be noted. Is that what you
intend?
The
Board agreed.
Issue #2 – Article 311.06 “Parking and
Loading Standards”
(C) No parking spaces shall be permitted between the
front façade of a building and any street right-of-way.
The
prohibition of parking between the front façade of a building and the street is
a new concept under the January 3, 2006, zoning amendment. The general purpose of controlling the
placement of off-street parking in relation to a building’s orientation to the
street is to mitigate conflict between pedestrian and vehicular circulation,
promote traditional neighborhood design where sidewalks connect pedestrian
traffic to off-site locations, and ensure that the building is the principal
point of reference rather than parking areas.
The
location of the subject development is unique in that the realty fronts four
(4) public streets –
The
approved Castle development program maintains these frontage orientation
trends. Additionally, the development
program reduces the number of parking stalls fronting
In
reviewing the Castle development application, the Planning Department maintains
that the subject development program complies with the intended policy of
prohibiting front yard on-site parking based on the following four (4) factors:
Mark
Furfari, applicant, announced that Article 311.06 clearly states that no
parking spaces shall be permitted between the front façade of a building and
any street right-of-way. Article 311.06,
Parking and loading standard: No parking spaces shall be permitted between the
front façade of a building and any street right-of-way. The front of this building is
Iannone
asked Mr. Castle to speak to the issue,
Mike
Castle said that the front of the building technically is
Bossio
disagreed that B-1 is designed to be a buffer; that is a PRO.
Castle
replied that actually I did say that inaccurately.
Bossio
indicated that I just want to make sure.
Castle
answered that the purpose of the neighborhood B-1 districts is to provide areas
of convenient businesses which tend to boost the daily shopping service needs
of residents in an immediate neighborhood which contains pedestrian oriented,
human scaled, construction designed to be compatible with the surrounding
neighborhood character. Because of the
proximity to residential neighborhoods, high quality design is in order to
protect the integrity of the neighborhoods.
The concept of it is it’s a neighborhood business district. It is, by its very nature, designed to be put
in and around a residential community.
That’s what creates neighborhoods that are the concept of it. The parking, itself, fits all the criteria
that were requested. In an effort to be
a good neighbor, I actually sent a letter (in packet) to Mr. Boroff regarding
this issue; that I would clean up areas down at
Iannone
asked for public comments.
Karen
Furfari, 704 Richwood Avenue, said that I refer to Mike’s comment as pertains
to what he is going to put there is exactly what what’s there now. That is clearly not the case. I keep hearing the word unique, it is such a
unique property. I don’t see that and I
don’t understand what is so unique about that and I would like to know what is
so unique about that space. I have
repeatedly heard, this evening, which is very annoying to me, that
Dave
Biafora,
Fletcher
answered that there were no conditional uses or Findings of Fact.
Biafora
replied that there didn’t need to be because there was no conditional use. We all make mistakes. Maybe, in January, things were thrown
together too fast. There’s been a lot of
hot tempers and a lot of things happening lately, but this is a prime example
of that. I’m a developer also. I believe that Mr. Castle’s project fits in
the box if all we’re looking for is fairness.
But there are many pieces to the building. I was watching this on TV and came down to
speak to help BZA. BZA, Planning,
Council, this is all our city for everyone who pays taxes and I want things
right. We might not always agree but things
have to be brought out to be discussed.
I did hear Bernie ask a question about that building on
Iannone
reminded Mr. Biafora to speak to the issue we are on tonight.
Biafora
said that he was explaining to the public.
We hope the BZA can be educated and Planning is watching, and our Mayor
and Council, and they open their eyes and see the problems. Mr. Castle has been dumped on the most with
zoning being changed although we’ve been here about fifteen years developing
and lately not seen the same treatment.
I ask the BZA to please read it inside and out and don’t be swayed by
phone calls. See what fits in the box and
anytime anyone brings anything in front of you, it does meet all Findings of
Facts in the positive. Make sure you
have all studies done both by the City and the developer, whether it be myself
or counterparts.
Matthew
Riegal,
Iannone
notified him that he exceeded the time and asked him to please wrap up your
comments.
Riegal
answered, distinguished Chair, I will stop right now.
Karen
Furfari noted that I anticipate a response to my questions as pertains to how
the determination was made as to where the front of the building is.
Iannone
said we will answer that question. Actually, that question was answered with
the staff report. There’s a number of
criteria that determine how we decide which is the front of the building. Mr. Fletcher, will you indulge?
Fletcher
read the definition in the staff report.
Lot Front, this is the guiding principle on determining what the lot
front is as defined in the ordinance.
Iannone
stated that this has been a very confusing issue on a number of applications
and it is NOT the address of the building which determines the front of the
building. We have had a number of cases
before us that have street addresses that, according to our criteria, have not
been designated the front of the building.
Iannone then asked for further public comments. There being none, the public portion was
closed.
Iannone
remarked Mr. Rockis, you are correct with the fact that the new code does give
the Planning Director some discretion as to choosing the front of the building
or lot. Obviously, Ridgeway was chosen
as the front of the building.
Rockis
asked the Planning Director to explain why you don’t want any parking in front
of the façade of a building for the audience to understand.
Fletcher
said that in general, the traditional neighborhood design or or new urbanist
design attempts to reduce the impact of vehicles, and parking in particular, on
a development site by having it moved to the side or the rear of the building
and move the building closer to the street.
That way an outdoor place is created by shorter setbacks, and parking in
rear. The building exposure that you get
of the site is the building and not the parking areas. That’s generally the planning principles
behind this particular design technique.
Rockis
offered that we were also told that no one wants to walk in front of a parking
lot.
Fletcher
replied studies say that.
Rockis
observed that we’re also going to have some problems with that being in the
ordinance. We have just created a
tremendous number of nonconforming buildings.
Fletcher
added and not just in a B-1, but in about every one of the districts.
Bossio
commented that I don’t have the plat in front of me of how the Castle building
is positioned on the lot.
Fletcher
responded that it looks like this.
Bossio
noted the required front yard setback is being set off of Ridgeway.
Fletcher
answered correct and the ordinance does say on through lots, for instance, if
you have road on both sides, you can pick which side of the street you want to
put it on. For instance, we have several
neighborhoods where we have a primary street, a lot, and another primary
street. I’m not talking about alley’s
I’m talking about two primary streets that are named and addressed. If you have a lot and you want to build a
house, you can pick which side you want to orient that to.
Bossio
asked so the property owner gets to pick?
Fletcher
replied yes. If you had a lot, for example, it was narrow or rectangular, and
the narrow ends abutted
Rockis
inquired Mr. Chairman, are you going to have some rebuttal from the applicant?
Iannone
asked would the applicant like to rebut anything and apologized for not
allowing rebuttal earlier.
Mark
Furfari declared yes. I’m understanding that the City Planner is saying that
the front of this building is Ridgeway.
Fletcher
replied that for setback purposes, correct.
Furfari
asked and for parking?
Fletcher
answered that for setback purposes, the front would be Ridgeway, so for setback
purposes, the parking would be in the back.
Furfari
clarified that the front of this building now is Ridgeway, that’s what you’re
saying.
Fletcher
reiterated that I said in the staff report, that the building frontage
characteristics for the proposed development were identical to those presently
there with the current building. That is
residential frontage facing Ridgeway, commercial frontage facing
Furfari
asked is there an entrance off
Fletcher
responded that there is a commercial in …
Furfari
interrupted that there is not.
Fletcher
asked if I could finish my thought. If
it was occupied by a business and they came in for a signage permit, it would
be on a corner, so they could put a sign on that side because they have a
window there, and over here because they have a window and an entrance. We have guidance from the zoning ordinance on
that.
Furfari
inquired can you get in and out of the building from the front of the building,
the residential side? I guess we’re
splitting this building into two categories to determine where the front is.
Fletcher
said that you asked if there was access.
Furfari
asked can you get in and out of the building from the front of the building,
from Ridgeway?
Fletcher
replied no, it’s not designed such.
Furfari
asserted that you can’t get in or out of this building from the front of the
building.
Fletcher
answered right.
Furfari
said a duck is a duck is a duck. The
front of this building is
Rockis
urged that what you’ve said, if you can give me something I can hang my hat on
from the ordinance, I feel you’re being subjective in how you’re choosing the
front.
Furfari
depicted that you enter the parking garage area from Richwood Avenue, enter the
apartments from Richwood Avenue, you enter the real estate, excuse me, the 1270
square feet of retail space from Richwood Avenue; a duck is a duck is a
duck. It’s
Bossio
claimed that I understand what you’re saying as far as a duck. . . . .That’s
how, when I look at making a decision, if I read the zoning ordinance and it
clearly says to me, we talked about it earlier, the “or”, but its says that the
Planner can determine which is the front of the building. You saw what Mr. Fletcher gave you in his
staff report, how he determined the front of the building. I guess what I’m asking is what Jim was
asking; give me something to hang my hat on to say he did not have that
authority to do that.
Furfari
stated that he had the authority to make the decision. I don’t believe the decision was the correct
decision.
Bossio
argued but he had the authority to make that decision.
Furfari
said of course, he’s the City Planner.
He talks about how he determines the front of a building and he says
primarily; #1, (I think if you prioritize things, the most important
determination of the front of the building would be number one, I think I can
get some agreement on that.) The
proposed development maintains the lot frontage orientation trends of the
existing structure in previous uses. The
front of that existing building is
Bossio
remarked that I understand what you’re saying, but when I asked if there was
something I could hang my hat on, to say he didn’t have the authority, . . . .
.
Furfari
interjected that’s what we’re here for: to determine whether this gentleman and
his predecessor have interpreted this properly.
Bossio
answered I don’t think we’re here for that.
Furfari
replied that it’s an Administrative Appeal on what that gentleman’s decision
was and his interpretation.
Bossio
advised that what he wrote is what the zoning ordinance says is that he has the
ability to say that that is the front of the building. What I’m saying is if I interpret it different
in my zoning, that he didn’t have the authority, then I understand. But I think that the way the code is written,
not that I agree with it and not that I agree how the front of the building has
been determined, but, I think that the zoning code does say that he has the
ability to state that that is the front of the building. So now, does it fit one I agree that he had
the authority to do that?
Furfari
asserted but Chris has said there are two fronts to the building. He said it’s Ridgeway and
Fletcher
explained that for setback purposes, the front of the building was determined
to be
Furfari
said but the building’s principal point of reference is
Fletcher
clarified that’s where you and I disagree.
Furfari
noted that it has the address, it has the lot frontage orientation based upon
the previous structures.
Fletcher
responded that I didn’t say the lot frontage, I just said the uses and how you
access them. As to whether you can
access the residential units from Ridgeway, Mr. Castle, correct me if I’m
wrong, one of the reasons why he did not want that access was so folks wouldn’t
be encouraged to park in the neighborhood over there.
Castle
answered exactly. Typically, in a
structure that has more than one level of separated parking, the access is
underneath.
Fletcher
observed that there was a recommendation not to have a door there so folks
wouldn’t be encourage to park in the neighborhood.
Furfari
said then I think in determining the front of a building . . . .
Fletcher
stated that nowhere in the ordinance does it say that the front of a building in
B-1 has to have a door.
Furfari
replied thank you very much.
Karen
Furfari had two short questions. #1: If
there is not a door in the front entrance of a building, how would you get into
the building? #2: If you’re looking for
a place to hang your hat, it would be next to the door on the coat-rack and
since there’s no door, it simply couldn’t be the front of the building.
Iannone
announced that the question of parking comes down to the determination of the
front of the building and obviously we have disagreements about how we
determine the front of the building, not in the ordinance, but personally.
Bossio
stated that I truly understand their questions.
I have some real concerns about that but I go back to that black and
white issue that I have as far as what the ordinance says. The ordinance clearly states that the Planner
can make that determination and he did. Does it meet the rest of the
requirements? Yes, I can’t override
what’s in the zoning code.
Biafora
tried to interject.
Iannone
responded that I’ve been trying to be lenient but we have closed the public
portion of the meeting and are in closed session.
Bossio
noted that the proper forum, if what’s not liked here, is go argue with the
Planning Commission and the Council to get the ordinance changed.
Iannone
added or participate in the crafting of the ordinance in the beginning.
Bossio
affirmed that I’m going to say I agree with you, Mark, and say a building with
no front door, no access, it’s kind of strange, but he had the ability to do
that.
Biafora
brought up case law.
Iannone
advised Mr. Biafora, what existed before and the determinations that were made
before, were made under the old ordinance.
We’re not working under the old ordinance. We’re working under the new ordinance that
has been worked out in the public domain through Council, public readings; it
is approved. This Board is not here to
craft a city ordinance. This Board is
here to administer it. Mr. Rockis, how
do you feel about this issue?
Rockis
answered that you get into this problem when you have sites with odd
shapes. We get one of these in five
years. We’re still going to get some
from time to time, but there has to be a way of dealing with it and some
guidance through the ordinance. I can’t
see where the Planner made a mistake: I’m going to go along with the Planner in
this.
Iannone
expressed that I also think there’s an issue here and that was an issue with
the Kane-Core and that is that times are changing. The love affair that we have with automobiles
is being called into question. That’s
one of the reasons this ordinance was crafted the way it was crafted, to try to
encourage a different relationship with the community, the city, and the
automobile and each other. Maybe it was
wrong. We’re not here to argue that. We’re here to administer the ordinance as it
was worked out by the City. Now, all the
folks were invited and this is what they came up with, and we live with
it. We all do, whether we like it or
not, and maybe we don’t.
Bossio
claimed that we live with it until someone takes it to task and brings it to
the proper authority.
Iannone
responded that it can always be changed.
Bossio
inquired if what we talked about earlier, with the height of a building or
stories of a building, we’re going to go back to the Planning Commission, if I
understood correctly, to maybe re-qualify this and clear it up.
Fletcher
replied yes, sir.
Bossio
discussed that because we have a bunch of interpretations. Dave was here and we talked about his
building. Then I started thinking, my
building faces yours, you look at it as two stories; from Collins Ferry it’s
1-story. It’s a 1-story building as far
as I’m concerned. Mr. Furfari, the City
Planner, through what the City Council voted on and approved for the zoning
amendment from January 3rd, gave him that authority to determine
that frontage. Being so that he
determined the frontage, even makes to me, the argument of the height
requirement of that building because that’s the front; that’s the three
stories. He determined that was the
front so the parking is in the back. I
don’t feel I have the authority to say he was wrong but I can read it clearly
in the zoning ordinance.
Iannone
stated that I think we’re all in agreement here and asked for a motion, one way
or the other.
Rockis
moved that we accept the Planner’s interpretation to determine the proper
orientation of this building, the proper front and rear yard to make setbacks
from.
Iannone
added that the front of the building as determined to be Ridgeway and there is
no parking between that front and the right-of-way, as per the ordinance.
Bossio
asked if it should reference it to issue #2, Article 311.06, Parking and
Loading Standards.
Iannone
asked the Planner to please read what we have hashed up here.
Fletcher
read that Rockis moved to accept the Planner’s interpretation of Article 311.06
in determining the frontage of the development on Ridgeway. I ran out of words there. Do you want to reference back to the front
lot definition?
Iannone
replied that I don’t think it’s necessary; once the building front is
determined, there is no parking between that building front and the
right-of-way. So there is no issue with
the Parking and Loading Standards.
Bossio
seconded the motion. The motion carried
unanimously.
Iannone
announced the next issue with this Administrative Appeal, the number of parking
spaces . . . . .
Fletcher
asked Mr. Furfari, the issue #3, identified in the staff report, I don’t know
if you really made that an issue in the appeal.
Furfari
replied that I did not.
Iannone
said that the subject development does provide the number of parking stalls as
required, so this is not an issue. How
do we speak to this Administrative Appeal because we have to make some
statement?
Fletcher
answered that I think you did it already by separating the two issues.
Bossio
added that we spoke to each one individually and referenced to the ordinance.
Fletcher
said that based on this discussion and this immediate exchange, no one was in
opposition, including the petitioner, that issue #3 was not part of the
appeal. It appears to me, in reviewing
my notes, that you’ve finished the Administrative Appeal, although you should
probably note that the normal language that we use with all our approvals,
regardless of the petition, that all decisions of the Board can be appealed to
the
Iannone
reiterated that during that period, any work done is ay the sole financial risk
of the affected parties.
OTHER BUSINESS:
Public Comments: NONE.
Staff Comments:
Bossio
asked if the Planning Commission approved Mr. Castle’s project and this was an
Administrative Appeal to either uphold the Planning Commission’s findings, or
not, why did the clock start ticking again for the thirty days?
Furfari
said that Mr. Castle was not told that by the Planning Commission.
Bossio
observed that was not the procedure of the Planning Commission.
Fletcher
clarified that if someone wanted to appeal the Planning Commission decision,
then that would have to be filed in Circuit Court within thirty days. What Mr. Furfari appealed was the
interpretation that was used in the course of the deliberations so he had
thirty days to file an Administrative Appeal from the time of the Planning
Commission meeting.
Bossio
inquired did we just tell him there’s another thirty days?
Fletcher
asked tell who?
Bossio
replied to Mr. Castle: that in thirty days he could be in Circuit Court from
our decision?
Fletcher
will check with Steve Fanok. It’s not
clear in the state code but Steve has been able to find some case law. For instance, if you upheld the petitioner’s
requests for one or both of these, my recommendation to you would be to order
the City of
Bossio
remarked so the clock did start ticking again tonight for another thirty days.
Iannone
advised that technically, the clock starts ticking thirty days after receiving
written notification of our decision.
Fletcher
said that in my opinion, it’s up to the attorneys to figure that out.
ADJOURNMENT: 9:29 P.M.