hearing on an application for a Variance of the required 25 foot side yard
setback to 15 feet in the R-1 Single-Family Residential District at 417 W.
CALL TO ORDER:
Chairman Coon opened the public hearing at 7:39 p.m.
It is 7:39 p.m. and
I now call Agenda item # 6 which is a public hearing on Case No.
BZA-V-2002-01 pursuant to Section 10-107 of the City Zoning Regulations
requesting a variance of the side yard setback from the required 25’ minimum
limitation to 15’. Chairman Coon welcomed the public to the hearing and laid
out some of the ground rules.
DISQUALIFICATION DECLARED AND QUORUM DETERMINED:
So at this time we would like to proceed with the
hearing and I would like to ask if there are any Board members who would want
to disqualify themselves from the hearing, discussing or voting on this case
because they or their spouse’s own property in the area of notification, or
have conflicts of interests, or a particular bias in this matter.
No one disqualified themselves.
According to Bickley Foster, City Planning Advisor.
notice of this hearing was published in the Andover Journal Advocate on
February 21, 2002. The notices were mailed to the applicant and the real
estate property owners of record in the area of notification on February 18,
2002. Unless there is evidence to the contrary from anyone present, I will
declare that proper notification has been given. No one made any comment.
EX PARTE COMMUNICATION:
Have any of the Board members received any ex parte
verbal or written communication prior to this hearing that you would like to
share with other members at this time? As you know, it is not important to
disclose the names of the parties, but to share important information.
No communication received.
ZONING ADMINISTRATOR’S REPORT;
APPLICANT’S REQUEST: Doug Allison, 1038 S Ginkgo Lane, Andover, KS, representing Faith Baptist Church, where he is a member of Faith Baptist Church, owner of the property in question. Faith Baptist youth have been meeting off site on
Sunday morning for Sunday School because of lack of classroom space. In an
effort to resolve that problem the Pastor, Jerry Smith, has negotiated a very
good deal with the school district for one of their portable buildings. Mr.
Allison stated it would be their desire to relocate that to the property in
question and use it for classroom space. Mr. Allison stated they had been to
the Site Plan Review Committee. Mr. Allison stated that over the last two
months we have discussed with the Site Plan Review Committee how Faith Baptist Church would go about locating this portable building on the property. In
the process of talking to Les Mangus regarding what some of the options were,
we determined that Faith Baptist Church is in a R-1 District which requires a
rear and side yard setback of 25’ each. Mr. Allison stated that the location
along the west property line would be the most reasonable location as far as
aesthetics were concerned. Mr. Allison stated he had gone through the
zoning book and found a provision in the zoning regulations which would
allow us do what we want to do without a variance. That is through the
Accessory Use Provision.
Joe Robertson stated what he is questioning here is
that the Commission has adjourned to the Board of Zoning Appeals for the paper
that is in front of us, if there is a different word or different topic that
is being discussed by the applicant then Mr. Robertson did not think the
board was in the right venue of what was about to be proposed. Mr. Robertson
said if that was the case then perhaps it needs to be postponed for another
30 days unless the applicant has a different notion as a result of his
research then whether that needs to abandon this zoning appeals and come back
at a later date to discuss.
Lynn Heath would like to continue
on with the variance and see if the Zoning Appeal’s Board wants to approve it
and then if Faith Baptist Church does not need it, its approved.
Bickley Foster stated they
should go ahead and hear the zoning case as Mr. Allison has paid his fee, he
has advertised, and notice has been given and that the decision should be
Mr. Allison stated the reason the Church decided to
move it toward the west is to maintain visual control from the parsonage to
the main building and there have been some incidences of vandalism and theft
in recent months. Also just from the aesthetic point of view to be able to
push the building back there behind the parsonage. Mr. Allison stated they
are requesting to reduce the setback to 15’ on that property line.
Joe Robertson asked Mr. Allison if this portable
building being looked at is a permanent fixture or are they planning in the
future for a different building. Mr. Allison said they desire to move it
off the property and construct more durable space, but refrained from putting
a time table on it.
Quentin Coon asked if this was one or two
buildings. Mr. Allison stated it was one building.
Lynn Heath asked how big
the portable buildings were. Mr. Allison stated they were 24 x 70.
Bickley Foster asked what
approximately was the distance from 3rd Street up to the edge of
the parking lot. Mr. Allison stated between 150’ - 200’.
APPEALS BOARD DELIBERATIONS:
The Board will now deliberate the request. First,
we need to determine if the request is one of the instances under which the
Zoning Regulations authorize us to grant a variance. For example, it cannot
be a “use” variance. Those permitted are found in Section 10-107C and are
listed as follows:
1. To vary the applicable
minimum lot area, lot width, and lot depth requirements.
2. To vary the applicable bulk regulations,
including maximum height, lot coverage and minimum yard requirements.
3. To vary the dimensional
provisions for permitted obstructions in required yards including fences in
4. To vary the applicable
number of required off-street parking spaces and the amount of off-street
loading requirements of Article 5.
To vary the applicable
dimensional sign provisions of Section 7-102 regarding general standards and
Section 7-104 regarding district regulations.
To vary the applicable
requirements in Sections 10-107 C1 through 5 above in conjunction with
conditional use applications for nonconforming, nonresidential structures and
uses under provisions of Section 8-105.
To vary the applicable
provisions permitted by the flood plain district.
Based on the application, this request meets the
criteria for Section 10-107C pertaining to a variance of the bulk
In determining whether the evidence
presented supports the conclusions of the five findings required by Section
10-107D1, the Board shall now consider the extent to which the evidence
The particular physical
surroundings, shape or topographical condition of the specific property
involved would result in a practical difficulty or unnecessary hardship upon
or for the owner, lessee or occupant, as distinguished from a mere
inconvenience, if the provision of these regulations were literally enforced;
The request for a variance is
not based exclusively upon a desire of the owner, lessee, occupant or
applicant to make more money out of the property;
The granting of the variance
will not be materially detrimental or injurious to other property or
improvements in the neighborhood in which the subject property is located;
The proposed variance will not
impair an adequate supply of light or air to adjacent property, substantially
increase congestion on public streets or roads, increase the danger of fire,
endanger the public safety or substantially diminish or impair property
values within the neighborhood.
Each of the five findings of fact will be read and our collective
opinion will now be summarized for the minutes. When a condition is not
found to exist, the wording may be altered by adding or deleting the word
“not” as appropriate.
That the variance requested arises from such condition which is unique
to the property in
question and which is not
ordinarily found in the same zoning district, and is not created by an action
or actions of the property owner or the applicant because; the temporary
location of the classroom is surrounded on three sides by other Faith Baptist
Church buildings, and the location is at the rear property lines of the two
neighboring properties to the west.
That granting of the variance
will not adversely affect the rights of adjacent property owners or residents
because; the location is hidden by other buildings on the site, and the
neighbor’s buildings require side yard setbacks less than 15 feet and the
adjacent duplexes do not adjoin this building directly.
That strict application of
the provisions of these regulations from which a variance is requested will
constitute unnecessary hardship upon the property owner represented in the
application because; other locations on the site would greatly reduce
available parking and visibility of the church and parking lot from the
That the variance desired will
not adversely affect the public health, safety, morals, order, convenience,
prosperity or general welfare; because even with the reduction in side yard
it is still a larger side yard than the other uses in the area.
e. That granting the variance
desired will not be opposed to the general spirit and intent of these
regulations; because adequate open space is provided around the buildings on
Having discussed and reached conclusions on our
findings, I now call for a motion and, if approved, any conditions that might
Having considered the evidence at the hearing and determined
that the findings of fact in the variance report have been found to exist
that support the five conditions set out in Section 10-107 D 1 of the Zoning
Regulations and K.S.A. 12-759(e) of the State Statutes which are necessary
for granting of a variance, I, Charles Malcom, move that the Chairperson be
authorized to sign a Resolution granting the variance, for Case No.
BZA-V-2002-01 with the conditions that the variance be limited to a north
south dimension of 100’ along north side of the building and that the
variance exist for only the life of the building. John McEachern seconded
There was no discussion.
Motion passed 8-0.