City of Lee’s Summit Board of Zoning Adjustments

Executive Conference Room

220 SW MAIN STREET

LEE’S SUMMIT, MO 64063
Minutes of October 23, 2003

The Lee’s Summit Board of Zoning Adjustments meeting of October 23, 2003 was called to order by Chairman Laurence Pressly at the Executive Conference Room, 220 SW Main Street, at 7:07 p.m.

OPENING ROLL CALL:

Laurence Pressly Present James Hand Absent (alternate)

Shawn Geraghty Absent Dave Mosby Present

Bernard Dick Present Diana Frank Present

Also present were Tom Scannell, City Planner; John Mautino, Assistant City Attorney and Kim Brennan, Secretary.

Approval of Agenda

Chairman Pressly asked for approval of the agenda as printed. Mr. Dick made a motion to approve the agenda with Mr. Mosby seconding. The Board of Zoning Adjustment voted unanimously by voice vote to APPROVE the agenda as printed.

Mr. Mosby introduced and Chairman Pressly welcomed two exchange student guests, Ms. Scherzemia from [the Republic of] Georgia and Mr. Tahiri from Kosovo, Bosnia. Chairman Pressly then asked anyone who was participating or giving testimony in the scheduled hearings to stand and be sworn in.

2. Application #717 – Variance to Rear Setback, 4387 SW Creekview Drive; Alenco, Inc., applicant

Chairman Pressly opened the hearing at 7:10 and entered the List of Exhibits (A), 1-11 into the record.

Mr. Alan Erskine of Alenco gave his address as 15623 South Acuff Lane in Olathe, Kansas. He stated that his clients, Mr. and Mrs. Burrington, wanted to install a sunroom at the rear of their residence by remodeling an existing deck. The sunroom would encroach over the 30-foot setback that the ordinance specified for enclosed structures. Mr. Erskine emphasized that the residents were neither moving nor extending the deck but would be putting on a roof and glass walls. He contended that this was not a housing structure but a porch or sunroom and should not be subject to the 30-foot setback. Referring to Consideration 4 in staff’s analysis, Mr. Erskine said that referring to reducing the depth to 6.5 feet made no sense as it would not be practical and would provide no living area. No room within a house other than a bathroom was commonly that narrow. He added that the area behind the house was vacant, although it would be built on eventually, he contended that the sunroom would not encroach nor harm anything; and that the spirit of the law referred to a side wall of a house. He said it would be quality construction and would not hurt the value of the area. Mr. Erskine added that setbacks in other metro communities were frequently 25 feet; and 30 feet for a backyard setback was more excessive than other municipalities. Additionally, the subdivision was only a year old. At Chairman Pressly’s request, Ms. Mary Burrington introduced herself.

Chairman Pressly remarked that ordinances such as Lee’s Summit’s Unified Development Ordinance (UDO) were fairly common. While some areas might have 25-foot setbacks, Lee’s Summit in fact did not. He added that the Board did not determine the ordinance but was there to determine if variances were appropriate. While the current deck was in compliance with the ordinance as the setback for decks was 25 feet, the ordinance called for 30 feet for a structure. He also noted that while the subdivision was not much developed as yet, new streets would come off Ward Road; so the Burringtons would have near neighbors before long.

Ms. Frank remarked that granting the variance would set a precedent in the neighborhood; and they would very likely see a number of subsequent requests for similar variances. Mr. Erskine answered that Boards such as this were there to handle applications on a case-by-case basis. He considered the encroachment of 3.5 feet to be very different from someone wanting to extend a structure out to their lot line. Mr. Erskine then asked if it would be acceptable if the residents were to build a freestanding structure in their yard such as a gazebo. Mr. Dick answered that this was not relevant to the application the Board was hearing.

Ms. Burrington stated that Mr. Burrington was 83 years old and had foot problems; and the sun porch was intended to give him an area to sit out and enjoy the scenery all year. Chairman Pressly asked when the house had been built and Ms. Burrington said it was about June 2002. They had purchased it last May. Chairman Pressly asked if they were aware of this kind of requirement when they bought the house and Ms. Burrington said they were; but did not know the possibility was as remote as it seemed to be. They had just moved to the area from the Lake of the Ozarks area and her husband was a former Lee’s Summit resident. Mr. Dick asked if they had the house built and Ms. Burrington answered that they had not.

Mr. Erskine then asked if it was precisely detrimental to the area to have something across the setback and asked if the ordinance would treat a freestanding structure differently. Mr. Scannell explained that it would. A structure like a gazebo would have a ten-foot setback as long as it was at least ten feet from the house. Mr. Erskine asked if it was a sightline or other visual issue and Mr. Scannell answered that the ordinance treated any structure actually attached to a house as being part of that house and subject to the house setbacks. Anything freestanding had a different set of rules. A sunroom with walls and a roof over it would be considered part of the house. Mr. Erskine asked how the residents would go about obtaining a variance and Chairman Pressly answered that the current hearing was in fact the process. He explained that the Board was a citizens’ board that worked with the City to look at and evaluate each case in the context of the ordinance. Mr. Erskine again asked how the variance could be detrimental. Chairman Pressly replied that the Board members knew from experience with applications that once they broke a precedent within a subdivision, a number of neighbors would want the same variance. Many of them would want to encroach further into the setbacks. He emphasized that the City Council determined the ordinance and not the Board and they did try to look at each application individually. The Board basically looked at hardship cases; and he had noticed in driving through the area that the homes were relatively close together. If people kept adding more and more in back of their homes, it would result in a significant loss of the open space that Lee’s Summit wanted to preserve in open areas.

Mr. Dick observed that he could see that to Mr. Erskine and the applicants, it was logical that the 3.5-foot setback would not be unusual and should be granted. However, a neighbor could come to the next meeting wanting a variance for seven feet. A variance would require some unusual circumstance and generally neither finances nor health were considered unusual. Mr. Erskine countered that on a practical level, the 6.5-foot depth that would be allowed would not work. He stated that looking at it on a case-by-case basis and not considering precedents for the moment, it was not practical for them to get the desired use out of such a narrow depth. Chairman Pressly remarked that the Board did see a number of deck variances and when the Board did grant them, it required that the deck not be enclosed. This particular deck was not on the building plan when the house was built and it had been constructed to comply with the 25-foot setback line. He added that as there were four Board members present that evening, it would take four “yes” votes to make a variance and not a simple majority.

Ms. Frank commented that in a future similar situation, it would be helpful to understand that the Board could grant a variance only if one of the outlined criteria applied. These criteria had been explained. The Board was complying with the request to look at this application individually; but it could grant only if the requirements were met. She confirmed that the criteria listed were specifically listed in staff’s report.

Chairman Pressly asked if any neighbors had come to speak on behalf of the application. Ms. Burrington answered that their neighbors had asked them why the porch was not going up and they were in favor of it. They had all received the notification letter and none of them were against it.

Mr. George Collier, who was present for another application that evening, asked if perhaps the design could be changed to be in compliance. Mr. Erskine stated that it could not. Mr. Collier asked if they could have all the adjacent property owners sign a petition and Mr. Dick said they could; but it would not necessarily make any difference to the Board. Mr. Erskine said he had been told by associates that this would not work in Lee’s Summit. Chairman Pressly remarked that what the Board often saw was people buying lots too small for the type of house that was built on them; and then wanted a variance to the ordinance.

Chairman Pressly then called for a motion. On motion of Mr. Dick, seconded by Mr. Mosby, the Board voted unanimously to draft a Finding of Facts to DENY Application 717, variance to rear setback, 4387 SW Creekview Drive; Alenco, Inc., applicant.

3. Application #718 – Variance to Front Setback – 614 NE La Costa; Jeanie Maskill, applicant

(Continued to January 22, 2004 meeting at the applicant’s request.)

4. Application #721 – Variance to Access to Collector Street and Driveway Separation – 721 NE Mulberry Street; Howard E. and Sandra S. Best, applicants

Chairman Pressly opened the hearing at 7:25. Mr. Best stated that his wife could not be present for health reasons; and he was representing them both as applicant. He related that he was applying for the variance because of the bicycle path planned for Independence Avenue. This would take out 9.5 feet of his existing driveway. He was a painting contractor and had long ladders as part of his standard equipment overhanging his truck. Mr. Best explained that he was concerned about the safety aspect of the ladder extending out into the bike path where people could run into it. He had moved into the house on July 11th and had not been aware of the bicycle path being planned. The seller had not mentioned it; and the safety aspect was a major concern.

Chairman Pressly remarked that the existing curb by the driveway, appeared to have enough width for a four-lane street; then cutting back out into two lanes. Mr. Best replied that as he understood the planned change, Independence Avenue was not presently a four-lane street but was four lanes wide. After the bicycle path was installed, it would be two lanes with a single turn lane. Chairman Pressly asked if that meant that the existing curb by the Bests’ driveway would stay in place and Mr. Best replied that it would not; it would be 9.5 feet shorter.

Chairman Pressly asked if the City had purchased the right-of-way and would move the curb 9.5 feet closer. Mr. Best replied that the problem was not related to the curb. The bicycle path would be eight feet wide, with a 1.5-foot strip between the path and curb. The result would be that he would lose 9.5 feet of driveway area and if he pulled into the driveway with the ladder hanging off the back of the truck, someone riding a bicycle on the path might be in danger.

Mr. Dick remarked that judging from the information the applicant provided, it looked like they would have the same problem with the new detached garage they were planning to build. The driveway, doors and structure would be in the same location. Mr. Best answered that with the driveway he was proposing, he would be able to pull off Independence Avenue at an angle and be able to turn the truck. Mr. Mosby asked if the bike path would be on the east or west side of the street and of Independence Avenue and Mr. Best answered that it would be on the west.

Chairman Pressly asked if the existing curb would remain and Mr. Best answered that it would. Chairman Pressly then asked if in that case the ladder currently stuck out past the curb and Mr. Best said it did not. The path would go 9.5 feet from the curb in toward his house. Mr. Scannell explained at this point that the improvements were all going to be done within the existing right-of-way of 60 feet. This consisted of 30 feet on each side of the centerline; and the construction would create two 12-foot lanes on each side of the center line. With another two feet for the concrete curb and gutter that would leave another 11 or 12 feet to the property line. The bike path would be within the City right-of-way and the property boundaries would not change; the only change would be the addition of a bike lane adjacent to the lots. Mr. Scannell observed that many Lee’s Summit residents thought that their property line started at the curb line when in fact it was generally about 11 or 12 feet back.

Mr. Best stated that he was not claiming it was his property. It would, nevertheless, create a safety hazard if it shortened the driveway. Ms. Frank asked if ladders on the truck were hanging in the right-of-way at present and Mr. Best said it was, if that was the end of his driveway. Mr. Dick confirmed that there was no sidewalk on that side.

Chairman Pressly observed that there were utility items at the driveway as well as a tree. Mr. Best stated that SBC and the electric company were going to move their utilities, which would give access to the proposed driveway. Ms. Frank asked how long the existing driveway was from his property line to wherever he would stop and park the vehicle. Mr. Best replied that it was 36 feet from his garage door to the existing road. The point where he would stop the truck would be about 15 feet, although he was not sure about the location of the property line. Mr. Scannell gave a figure of approximately 25 feet. Ms. Frank asked if he could still not pull his truck with a ladder in 25 feet and not have the ladder hanging into the right-of-way. Mr. Best said that was the current situation.