HomeMy WebLinkAbout2.0 BOA Staff Report 04.25.2005.pdfBOA 04/25/05
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PROJECT INFORMATION AND STAFF COMMENTS
REQUEST
APPLICANT
REPRESENTATIVE
PROPERTY LOCATION
I. BACKGROUND
Administrative Appeal of an interpretation of
Section 2.02.21 (Two-Family Dwelling) of the
Garfield County Zoning Resolution of 1978,
as amended
Bernard and Martha Long
Balcomb & Green P. C., Tom Hartert
8153 County Road 312, New Castle, CO
Within the last ten years, the Applicant constructed a single-family dwelling on Lot 3 of the Long
Subdivision. More recently, the Applicant obtained a Special Use Permit (SUP) from the Board
of County Commissioners (the Board) for an Accessory Dwelling Unit (ADU) on the same lot.
Subsequently, the Applicant 's son inquired, by way of a telephone conversation with a County
Building In s pector about obtaining a separate address for the ADU at which time the son a ls o
asked about obtaining a separate address for the "apartment" that exists in the main house on the
property.
Understanding that the main house was constructed under an approved building permit for a
single-family dwelling, the Building Inspector reported the existence of the apartment to the
County Zoning Enforcement Officer (the Zoning Officer) for fm1her action. As a result, the
Zoning Officer cited the Applicant for an illegal two-family dwelling by letter dated November
29, 2004. The Applicants retained Tom Hartert of Balcomb and Green, P.C. to represent them
regarding the citation which resulted in a request to have the Board of Adjustment (BOA) hear
the matter.
II. REQUEST
The Applicant is contesting an interpretation of the Garfield County Zoning Resolution of 1978,
as amended (the Zoning Code) made by Mark Bean, the Garfield County Chief Building Official
and Director of the Building and Planning Department (the Building Official), that the inclusion
of a second kitchen in a si ngle-family dwelling enables that stmcture to a ll ow two families to live
independently of one-another thereby classifying the residential configuration of the stmcture as
a two-fami ly dwelling. The Applicant disagrees with thi s interpretation stating that the definition
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of dwelling unit in the Zonin g Code does no t expli citly include or infer t hat a kitchen i s the
primary defining component of a dwelling unit.
III. PROPERTY DESCRIPTION
The subject propert y, created through s ubdi vision in 1998 and legall y defined as Lot 3 of the
Long Subdivis ion (the Property), contain s 7 acres, and is l ocated approximately seven miles
south of New Castle on County R oad 312. The property was hi storically irrigated and ut ili zed to
rai se alfalfa. Slope across the property con sists of a grad ual s lope (7 %) runnin g in a n01thwest to
s ou th east direction . M ost of the land uses in the surrounding area are agricultural I resi denti a l on
re latively large lots .
IV. STAFF COMMENTS
In order to inform the di sc ussion before the Board of Adjustment (BOA), Staff provides the
fo ll owing definitions from the Zoning Code and the 2003 Internati onal Residential Code (the
Building Code) for your conveni e nce as they are referred to th roughout this memorandum.
a. Zonin g Code Definitions
2.02.18 Dwe llin g: A building or portion thereof used for res idential occup ancy.
2.02.19 Dwelling Unit: One ( 1) or more rooms in a dwellin g occupied by one (1 )
fami ly li ving independently of any other family.
2 .02 .20 Dwelling , Si ngle Family : A building, not cl ass ified as a mobile home
cont ain in g o nly o ne (1) dwelling unit. (A 95-043)
2.02.2 1 Dwelling, Two Family: A buildin g co ntaining two dwell ing units
b. Building Code Definitions in Section R202 of the 2003 International Residential
Code (as modified a nd adopted in paragraph 22 of Re so lution 2004-86 )
Dw ellin g Unit: A s ingl e unit providing complete, independent li ving faci lities for o ne
or more persons, including perman ent provisions for Ji ving, sle eping,
eating, cooking a nd sanitation, and having just o ne kitchen .
Kitchen: A room or area that is desig nated to be used for the cooking and
preparation of food w hi ch cont a i ns more than one s tandard s ize
kitchen appliance or fixtu re.
Wet Bar: An a rea of a room that is designed to be used for serving of alcoholi c
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or non-alcoholic beverages, that may have a single bar s ink and no
standard size kitchen appliances such as a s tove, oven, dis hwasher or
full sized refrigerator.
A s a matter of po licy, the Buildin g Official uses the definitions contained in the Building Code
as a rational and consistent way of interpreting certain terms used in the Zoning Code. The
Building Code provides clear-cut definitions that can be appli ed consistently to whatever facts
are presented to the Building and Planning D e p artment. As applicable to the subject structure,
the Department uses the Building Code definitions of the compo nents in a structure that define
th a t s tructure as a dwelling unit. Additionally, the definition of dwelling unit in the Zoning Code
is intended to define a living sp ace where one or more rooms in a s tru cture are occupied by one
family living independently of any other family which inherently requires permanent provisions
for living, sl eeping, eating, cooking and sanitation. Las tly, as d efi ned in the Building Code, a
dwelling unit shall have jus t o ne kitchen.
Staff understands that the apartment has its ow n direct egress and ingress as well as an inte rnal
access-way to the upper floors of the h ouse provided by a set of stairs which all ows the
apartment to function as a n ind e pendent li ving area b y simply locking off the stairs to the upper
floor. Further, Section R311.4. l of the Building Code requires th at "no t less than one exit
door ... shall be provided for each unit. The required exit door sha ll provide for direc t access
from th e habitable portions of th e dwelling to the exterior without req uiring travel through a
garage." This requirement i s also an impo1ta nt co mponent to th e ability for a fami l y to live
ind e pe nde ntly from another f urth e r dem o nstratin g th a t each unit in a two-family dwellin g cannot
re ly on each othe r to fun cti on w hich is the case in th e subj ect apartme nt even tho ugh th e re i s an
additional interna l access t o the rest o f the residenti a l stru c ture .
So, while th e definiti o n of dwelling unit in the Zoning Code does no t contain th e l a n g u age
" ... and having just on e kitchen", it is most r easona bly implied in the l a nguage " ... one family
li ving independently of any o th er family" in th e Zoning Code's defi nition. Staff interprets the
meanin g of the word "independently" t o require the inclus ion of a kitchen, a nd has cons i s t e ntl y
applied this interpretation over th e last eight year s. Moreover, Staff beli eves th ese two definitions
work in conce rt in a very important way du e to the life I safety conce rns s urroundin g the
construction of kitc hens in stru ctures without th e appropriate building permits.
Specifically, there are significant re quirements in the Building Code that are inte nded to
structurally accommodate th e inclus ion of a second kitche n within a s tructure intende d for
res ide nti al habitation . It is uncl ear , if any of th ese Building Code issues were addressed when the
Applicant con structed the kitchen because no building pe rmits were ever is s ue d. This i s a
s ignifi cant violation also of th e Building Code. To be clear, the violation of the Building Cod e is
n ot a matter to be discussed before the BOA this evenin g.
It s ho uld be no ted th a t D epartment policy a ll ows fo r the construction of a "wet bar" in a
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residential structure that does not render or convert the structure into a second dwelling unit due
to its limited nature. The definition used for a wet bar comes from the Building Code which
states "An area of a room that is design ed to be used for serving of alcoholic or non-alcoholic
beverages, that may have a single bar sink and no standard size kitchen appliances such as a
stove, oven, dishwasher or full sized refrigerator." Clearly, the definition of a wet bar is not
intended to serve the primary function of sustaining a family so that th ey may live independently
from another family in the same residential structure.
Therefore, if the Applicant were to modify the kitchen to be consistent with the provisions of this
definition, the residential s tructure would revert back to a legal sing le-family dwelling as
contemplated by the Zoning Code. (It may not preclude certain building permits from still being
required .)
V. DECISION AUTHORITY OF THE BOARD OF ADJUSTMENT
Section 9.04 of the Zoning Code states that an individual may appeal a determination of an
administrative official of the County that results in the person not being able to obtain a permit.
Spec ifically , Section 9.04 states the following:
9.04 ADMINISTRATIVE APPEAL & INTERPRETATION
9.04. 01 Applications: Appeals to the Zoning Board of Adjustment ("Board") may be taken by
any person aggrieved by his inability to obtain a permit (other than a Special Use
Permit), o r by th e decision of any administrative officer or agency based upon or
made in the cou rse of the administration or enforcement of the provisions of this
R esolution. Appeals ma y also be taken by any officer, d epartment, board or bureau
of the County affected by the grant or refusal of a p ermit, other than a Special Use
Permit, or by other decision of an administrative officer or agency based on, or made
in the course of, the administration or enfo rcement of this R esolution. Appeals to th e
Board must be made in writing and filed with th e Board within seven (7) days of the
action or d ecision appealed and a copy shall be given by th e appellant to any official
or agency froni which the appeal is taken. A timely appeal stays all proceedings in
furtherance of th e action appealed from, unless any officer o r agency from whom th e
app eal is taken certifies to the Board, after the notice of appeal shall have been filed
with him, that by reason of the facts stated in th e certificate, a stay, in his opinion,
would cause imminent peril to life and property, in which case proceedings s hall not
b e stayed otherwise than by a restraining order which may be granted by a court of
record or th e Board upon proper application. No restraining o rder shall be issued by
th e Board except after notice to the officer or agency from whom th e appeal is taken
and only if du e cause is shown.
9.04.02 Action by the Board o[Adjustm ent: The Board shall have th e powers and duties to
hear and decide appeals as set forth in Section 9.05.03 of this Resolution. The
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concurring vote off our (4) members of the Board shall be necessmy to reverse any
order, requirement, decision or determination of any administrative official or
agency or to decide in favor of the appellant.
The Applicant has made a timely appeal of the determination and the Board will need to make a
determination.
VI. STAFF RECOMMENDATION
In summary, the Applicant's son admitted that the lower finished floor of the Applicant's s ingle-
family dwelling is cuITently functioning as an apartment which, in turn, functions as an
independent dwelling unit as a result of the installation of its own kitchen as well as having its
own access separate from the independent living area on the upper floors of the same structure.
This residential configuration, by vi1tue of having a second kitchen, is considered to be an illegal
two-family dwelling for which no approval by Garfield County has ever been granted under the
authority provided in the Zoning Code or the Building Code. As a re s ult, the Applicant is
presently in violation of both codes.
Staff finds that based on the fact that a family or individuals may live in the subject apartment
independently of another family in the same structure, the cuITent configuration of the s tructure is
defined as a two-family dwelling which continues to represent a violation of the Zoning Code
because the structure is permitte d only as a s ingle-family dwelling. Recourse available to the
Applicant to correct this apparent violation includes 1) removing the appliances that define a
"kitchen" as defined in the Building Code from the lower level of the dwelling or 2) obtain
approval for a SUP for a "two-family dwelling" from the Board and obtaining the appropriate
building permits for the construction of the kitchen pursuant to the Building Code.
Lastly, in no way, is this interpretation as applied to the residential configuration in the s ubject
single-family dwelling any different than interpre tation s applied in past practice by thi s office to
other similarly configured reside ntial s tructures. In fact, the Zoning Enforcement Officer s hall
provide te stimony to the BOA at the public mee tin g regarding past violations and interpretations
of this office regarding thi s issue.
VII. SUGGESTED FINDINGS
a. That the application for an appeal of an administrative interpretation was found to be
consistent with the requirements of Sec tion 9.04 of the Garfield County Zoning
Resolution of 1978, as amended.
b. That the public m eeting before the Zoning Board of Adjustment was extensive and
complete, that all facts, matters and iss ues were s ubmitted and that all interested parties
were heard at the meeting.
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