September 10, 2024 — Board of Zoning Adjustment Regular Meeting

Transcript

Captions from City of Boulder YouTube recording.

[0:02] Good evening. This is a meeting of the Board of Zoning adjustment. Tonight we have 2 items. docket number Boz, 2024, 0 0 0 8 and docket number boz, 2024, dash, oh, sorry. 0 0 1 0 and on each item staff will present first, st and the applicant will present second then the public will be invited to comment, and then the Board will discuss. Now I'm going to turn it over for our rules of decorum to our support person. Thomas. Alright. Can you all see my screen here. So I'm just gonna go over some rules of decorum for public participation in our meetings. The city has engaged with community members to co-create a vision for productive, meaningful, and inclusive civic conversations. This vision supports physical and emotional safety for community members, staff and board members as well as democracy, for people of all ages, identities, lived experiences and political perspectives

[1:10] for more information about decision and the community engagement process. Please visit our website at this link. The following are examples of rules of decorum found in the boldly revised code and other guidelines that support this vision. These will be upheld during this meeting all remarks and testimony shall be limited to matters related to city business. No participant shall make threats or use other form of intimidation against any person. obscenity, racial epithets and other speech and behavior that disrupt or otherwise impede the ability to conduct the meeting are prohibited. Participants are required to identify themselves, using the name they are commonly known by. And here, when we get to the public Participation section, when prompted, you can raise your hand by hovering your mouse or finger over the bottom section of your screen or your phone for the control panel to show and then click the raise hand button. If you're calling in by phone.

[2:01] You can dial star 9 to raise your hand. and then, if you don't see the raise hand option, you might have to expand this reactions tab. and then you'll see the raise hand. Option there. Alright, and I'll pass it back over to the chair. Thank you. Thank you very much, Thomas. We appreciate it. So I'm going to review the voting rules briefly. We have a full house tonight of the complete Board, so an affirmative vote of 3 or more board members shall result in passage of the motion. An applicant cannot be approved with less than 3 affirmative votes. If the 1st vote taken on a motion to approve or deny an application results in a tie, 2 to 2, the applicant shall be allowed to a rehearing a tie vote on any subsequent motion to approve or deny, shall result in defeat of the motion and denial of the application. A vote of 2 to one or one to 2 on a motion, shall in all respects be considered a tie. So I'm ready to turn this over to Robbie Wyler for docket number Boz 2024, 0 0 0 8.

[3:08] Thank you. Thank you, madam Chair, and let me share my screen real quick. Okay, again, this is docket number Boz, 2, 0, 2, 4, dash 0 0 0 8. The address is 1,003 9th Street, and this is a wall setback variance as part of a proposal to recognize and establish existing retaining walls along a portion of the East property line. The applicant is requesting a variance to the fences and walls. Setbacks from a public sidewalk, standards for a single family property in the Rl. One zoning district. The resulting wall setback from the subject public sidewalk along 9th Street will be approximately 10 inches at the closest point where 18 inches is required and approximately 10 inches at the closest point exists today.

[4:02] Section of the land use code to be modified. Section 9, 9, 15. Boulder revised Code 1981. And this one's a little different than the boards used to seeing. It is a wall setback variance. But per 9 9 15. The setback is to be taken from public sidewalks, not property line. So with that I will go into a little bit of information that was already provided within the application. This is an Rl. One zone, single family house circle. There on the screen you can see the subject property and let me find my mouse. And here's an also an example of the survey, and then also the aerial you can see circled in red the East property line which is around where the the subject wall is located there along 9th Street. and this was provided within the application. And the wall that is there today is set back at the closest point, about 10 inches from the 9th Street sidewalk. So what the Board is considering tonight is a setback from public sidewalk for the existing wall that was

[5:12] put out on the property, and that's for approximately 10 inches from the sidewalk, where 18 inches is required, and approximately the 10 inches exist today. and these were some photos of the prior east yard that were provided by the applicant. You can see the 2 images on the left show the area prior to the wall that is out there today being constructed. And then we have a diagram kind of showing the rough area of that berm area, the dirt area that was there prior to the wall that is there today. And then we have some existing photos. The image on the right was taken a couple of months ago. Thanks to Google Street View. And then we have the 2 images on the left that were apparently taken just after the construction of the wall, which occurred in late

[6:01] 2023. And then there's very little in the way of zoning information given that this is a wall setback variance. So I'm not going to go into as much as what the board typically would see when it comes to the additional information for zoning. But it is the setbacks that the Board is looking at tonight. Stem from Boulder Revised Code 9, 9 15, both b. 1 and b. 2 b. 1 states that no fence, hedge, or wall shall extend beyond or across a property line, and then immediately after that, under 9 9, 15 B. 2. It states that no fence or wall is placed near than 18 inches to any public sidewalk. and at the end of the 9 9 15. It does give someone an avenue to Bosa to seek a variance to any of the fence and wall standards under 9, 9 15. So because the wall that is out there today was constructed closer to 18 inches from the 9th Street sidewalk, they are required to obtain a variance in order to make that happen.

[7:08] and a little bit in the way of the history. This is and associated with an enforcement case enf 202-30-0803, that is still active. And again the wall was built late 2023, and it doesn't appear any permit was obtained for that wall when it comes to the review. Criteria staff will is not supporting nor recommending approval of the wall setback variants as it has been presented. and like what what the applicant provided in their narrative. They did respond to criterion h. 1 and h. 5. And those are the criteria that staff also used when determining whether or not we could support the wall setback variance when it comes to h 1 unusual physical circumstances or conditions without limitation.

[8:01] It doesn't appear. There's a great amount of limitation when it comes to constructing a wall closer to the house or further to the west. There were. there was the topic of the existing silver maple. I believe it is tree that is, on city property along the south of the property. But it is a tree that is categorized by the city. It is not a protected tree in terms of like we have categories such as heritage trees. But I did reach out to our landscape architect as well as the forestry department. Just to get a little bit more information on this tree, and it was stated that we would not prohibit the construction of a wall. Another 8 inches to a foot inland. There would be some conditions in terms of how to take care of the tree, but it is not prohibited. It is not a protected tree per se, meaning under in the root zone that no development such as a wall could occur. So we did kind of reach out to get a little bit more information on some of the physical restrictions, as stated by the applicant.

[9:05] In terms of the tree. And we did get that information when it comes to h 1 b. The unusual circumstances or conditions do not exist throughout the neighborhood or zoning district. Again, The conditions do exist throughout the neighborhood. There are a lot of older walls that may not meet the 10 inches. That is something that is very common, especially in the older neighborhoods. But when it comes to newer walls constructed. They were all required to meet the 18 inches from a sidewalk. and I, and then, when it comes to h, 1 c. Because of such physical circumstances or conditions, the property cannot reasonably be developed. In conformity with the provisions of this chapter. It does appear that the wall could be pushed back further to the west to comply with the 18 inch requirement, and then h. 1 d. Any unnecessary hardship has not been been created by the applicant. It does appear because this did not go through a wall, permit, that the city was unable to work with the applicant or the homeowner to construct a compliant wall.

[10:07] It does appear that this was created by the homeowner applicant. and when it comes to H. 5 h. 5 a. Would not alter the essential character of the neighborhood or district staff actually supports that. We have a lot of different looking walls in different locations. Some are have been there for many decades and some not so. We do not feel that the wall in this location would necessarily alter the essential character of the neighborhood, especially negatively alter. H. 5 b. Would not substantially or permanently impair reasonable use and enjoyment or development of the adjacent property. This is one where we actually do have a lot of concern with. It appears that the well is not even located on the property. that a portion of it does extend beyond the property line, which is not something that can be permitted, and we've gotten confirmation from right of way that we would not allow construction of any portion of a wall within the city's property or off private property.

[11:09] so the wall, extending into the right of way could be seen as impairment of reasonable use and enjoyment, and especially development of adjacent property. That adjacent property being the city right of way when it comes to 5 C would be the minimum variance to afford relief, and it would be the least modification of the applicable provisions of this title. Again, we feel that the wall could be pushed further to the west into a compliant location, and that this action would not harm the tree, for example, or the grading, and all of that would be, of course, reviewed through a permit process. and then, lastly, 5 d. Would not conflict with the provisions of section 9, 9, 17 solar access. We do feel that this meets that it would not create any sort of a solar access problem. So with that I am more than happy to answer any questions the Board may have regarding

[12:05] so fence and wall standards, or anything that I heard back from our forestry department or landscape architect, or even the right of way department or right of way team. And then, if there are any questions specific to the construction of the wall, or kind of what the intentions were that might be better addressed by the homeowner applicant. So, Madam Chair, I will hand it back over to you. Thank you, Robbie. so at this time I ask the board. Do you have any questions for Staff? Katie? I have a question about how the enforcement action sort of what? What was the impetus for that? Was it a neighbor or how how did that happen. I actually, I don't have that information looking at the case, it's unclear how exactly it commenced.

[13:03] But it does appear that late 2023 an Enforcement case was open for construction of a wall without a permit. So beyond that, I really don't have a whole lot of information in terms of the the behind the scenes of the enforcement case. And then just to follow up. So is is the remedy that they would just have to basically remove the wall and just push it back. That. Yep, and I believe so through the enforcement case, without getting too much into that the remedy would be either move it to a compliant location, which is 18 inches from the sidewalk, or just flat out, remove it, or seek a variance through Boza for that 18 inches which can be done. and setback, wise right of way, would be able to approve it. But again, if this wall in any way is located off the property off of 1,003 9th Street. That is not something Boza can vary. That is not something right of way would allow. So I'll kind of leave it at that. So the remedy to the enforcement case would be to either get a variance or to

[14:13] move it to a compliant location. Hmm. Nikki. Please. Robbie, do you have any information on kind of the the width of sidewalks in relationship to accessibility? So I guess my question is for people in wheelchairs for strollers. Is there is there any type of regulation for how wide sidewalks need to be accessible in order for all people to be able to use the sidewalk. Yes, there are. Unfortunately, I do not know those specific standards. That's not usually something that my team handles.

[15:06] But it's likely around 5 feet 5 foot width sidewalk for Ada compliant or Ada compliance. I should say so. Unfortunately, I don't have the specific numbers, but any sidewalks constructed by the city, especially recently, would have to adhere to those standards. I have something to say, but I want to see if anybody else has something to say. I'm I'm gonna respond a little bit. Nikki, too. Okay? And I guess my follow up question would be as the wall is constructed. Currently. is it encroaching upon that 5 foot sidewalk with. So it is not encroaching into these. So the sidewalk that is there today was there before the wall that is there today. So the wall is not encroaching onto the sidewalk, but sidewalks aren't always the width of right of way. There are not always a uniform width, so what our right of way. Folks, I guess, would be looking at is, does this wall encroach into the right of way? Meaning off the property? That's 1 thing, and that is where I have been presented with concerns that it

[16:20] likely does encroach into the right of way, which is not something Bozo can vary. and then also what they're looking at is. if it is on the property, is it at least 18 inches from whatever sidewalk is out there. So it's a very it's not a setback from a property line. It's a setback from a sidewalk which is not always a consistent width and size and all that, but when it comes to this 18 inches. What they look at is. does it leave the property? Yes or no? And then is it 18 inches from whatever sidewalk is out there. Thank you. Any other questions or comments.

[17:04] So this is something that's also near and dear to me. Because I have 2 fences in my neighborhood that were built during Covid that do not comply. and the reason so I have don't know what to do with the fact. The city won't enforce it because it was brought to the city's attention in at least one of those cases, and they let it go. And so what happens to your point, Nikki, is that you have a sidewalk with a vertical feature that impedes a cyclist impeached somebody, maybe with a wheelchair, somebody with a walker, with someone walking side by side to them, because if that sidewalks 3 foot wide, that's all you've got is 3 feet, and then you're hitting a solid strut mass, which my understanding was that was the reason for the 18 inch rule, so that if you were on the sidewalk you had some space next to you, you wouldn't have a solid vertical element in the way.

[18:05] That's the way it was explained to me at the time. So i i i would like the city to enforce this uniformly. That would be my comment about it is. I see the issues with this wall are paramount. Mount in the sense that they didn't pull a permit. They therefore don't appear to have gotten a survey. They're not on the line of the property to even start with. So that's a bummer. I mean, this is a expensive wall. I'm sure it's not much fun to have to run into this issue. But this is a structure that is has a potential to do what you're pointing out, Nikki was. If you have a wheelchair. this is gonna prevent you necessarily, because it looks like it's a fairly narrow sidewalk from having somebody next to you. And so when I think about this part of me is like what doesn't seem fair to

[19:02] enforce it in this case and not enforce it in other cases. And that's a conversation we can have outside of this right, because it's not relevant necessarily. But when I think about this, and we can talk more as a group, obviously. But my question for staff is, isn't that the reason? Isn't that why we have an 18 inch rule. I think it's written in the statute. You are. You are absolutely correct on that madam chair. It's it's really a safety thing. and it's a safety thing that really stems from our right of way. But it just happens to be in Title 9 land use code, and they gave the option to seek remedy through Bosa, which is why it's in front of you tonight, but it really does stem from a safety to ensure that you're not scraping your knees or are able to move your hands to the right. If you're on a wheelchair in terms of do we require a minimum width sidewalk again? That's something that I probably can't speak to, because it's not one. It's not in my wheelhouse. But it is something that is taken into mind every time somebody constructs a wall or a fence, or does any project is.

[20:07] we have a team of many people, and they are looking at stuff such as does anything leave the property. And are we allowing that 18 inches of space in between any sidewalk for the exact reason that you brought up? So that is I can concur with what you just said. Thank you. Are there any other questions for staff. Just just to clarify. So the only reason that they are seeking that they applied to Bosa is because because of the enforcement action. They. They were prompted to do this because of the Enforcement action. That's correct. Yeah. Thank you, Katie. So at this time the applicant, if they are prepared, may present to the board. So Thomas.

[21:04] Working on getting them access now. Hi, good evening. Can you hear me? Okay. Nigel. One second, please, hey, Thomas? There is a note in the sidebar from Erin. Right? Is that all resolved? Is that done, Erin? You're fixed. Okay, thank you. Sorry, Nigel, please. No problem. Can you hear me? Okay? Because it kicked me out, and then kind of let me back in. So so, Madam Chairwoman and and members of board. Thank you very much for for hearing this this evening. And you know, I wanted to just kind of start just giving a little bit of context. for why the wall was constructed kind of the way it was and address some of the some of the questions I know that kind of came up. So a little bit of the back story is, when we moved to the house about 6 years ago. Every winter we the the sloping kind of hillside. It was about maybe 3 feet.

[22:10] cause a lot of issues with kind of rainwater and causing a lot of ice ice dam buildup and ice on that sidewalk, I would say the sidewalk is probably 3 to 4 feet wide. It's not a very narrow sidewalk. It's I would say, standard sidewalk and we've always, you know, tried to work really hard to, you know, kind of chip the ice away, and the way it's kind of sits being east, facing would always get icy, and we also have a lot of like elderly neighbors. So the intention of the wall was really to improve safety, I would say, for the for the for the sidewalk, and for for our neighbors. You know, the the intention wasn't to do something out of compliance. We looked at, you know, pushing back that wall or pushing back that that hillside and the rocks that kind of came out maybe 5 or 6 feet or 5 or 6 inches on the sidewalk.

[23:06] The reason we didn't pull permit for it, and you know we have pulled permits, for we have a fence on the other side, like the neighboring to the to the the north or the north side of the property. We have a fence. We pull the permit for that. Pull the permit for the for the porch. The reason we didn't pull a permit was because retaining walls less than 3 feet are not required to pull a permit. So this wasn't like intentionally going outside. I looked at the rules, and it said, you know, not required to pull a permit and during construction. We did all with hand tools, so it was like me and my wife and my father-in-law out there, and we're just pulling back the topsoil, and we we get to like very large boulders, very large boulders that are kind of within that rubble kind of foundation. and we decided to not go any further and just move the topsoil, move it up and place the retaining wall there. So that was the main reason why we constructed the way we did. To, you know. Believe, Katie, you had the question about the Enforcement case.

[24:08] I asked the question and got confirmation. It wasn't a neighbor complaining. I would say that anecdotally. While we've been working out there. All of our neighbors have been very happy that we've kind of fixed it, and we've gone through a winter now, and they've actually said the the sidewalk is safer now. And it was a. It was an officer, you know, from a from code compliance that basically stopped after the wall was constructed, and we were actually building a flagstone pathway above. So it was a completely separate project that he stopped and started the enforcement case that way. So again, you know Enforcement cases already in place but at least a little bit of history. Why, it started it, you know, wasn't from a neighboring property. And it wasn't from, you know, 1 1 of the members of the public. It was, you know, from somebody employee of the city. The other thing is, you know, we talked to Robbie mentioned it. You know we once we got the Enforcement case. We're a little surprised because we've seen lots of you know, to to Joe your

[25:09] your point. We've seen lots of fences and stone walls that are like right on the sidewalk, like 0 set back. And so we walked our neighborhood up and down multiple evenings, and there was over 60 to 70% of houses that were not compliant with fences or walls or stone walls. So Rob even mentioned it. So I guess there was a there was a reason for us to be a little surprised that there was an Enforcement case against us, and not some of the other some of the other houses in the neighborhood. So I guess the you know. The the main thing I'll leave you with is, we tried our best to kind of improve the safety. You know we didn't hit the mark, of course. It wasn't intentional. It certainly wasn't us intentionally, not only the permit, because, you know, for the regulations. I thought it was a less than 3 feet. We did ourselves. All the hand tools. To do it again would require machinery to like. Go and get those boulders out to move it. If we're if we're to do that, it's you know it's going to be a pretty big

[26:08] pretty big effort to do that as well as when we're pulling a permit for the porch. The city was pretty up the the we had to go through the the landscaping, and you know, protection around the trees, and then this would. This would significantly like cut into the the root system. So if Robbie mentioned that they'd be fine with that, then that's that's, you know that that's okay. And we I guess we could move forward with that. So that that's the the extent I think I've answered kind of the questions that I heard come up, but happy to answer any other questions that you guys might have. So. The only thing I have is that the Attorney City attorney isn't sure. If you said your name and address when you came on. So would you please, for the record state your name and address. We'll start there. Because that's requirement. Thank you. Okay? So my name is Nigel Gorbold. My address is 1 0 0 3 9th Street.

[27:01] Thank you. Sorry about that. That's okay. Who has questions for the applicant. Yes, ma'am. Thanks for the context. Mr. Orbold, very helpful. I just want to give you a chance to respond to the staff's presentation on the variance criteria just because we're pretty limited in our decision making. We really have to tie it to those 8 factors that Robbie went through. Yeah. Yeah, I don't. I don't have them. And is there one in particular? Or did you want me to go one by one as far as their. Well, just I think I mean I tried to take notes. It seemed like 6 out of 8, the city staff thought were not met so just things like intention don't factor in like we're kind of not allowed to consider that in our assessment, so is helpful. And I, you know. I certainly heard the spirit of the project. I admire you for using hand tools to do it. It looks beautiful.

[28:07] but I'm trying to kind of help us stay on task in terms of looking at each of the criteria. So what. Then would it be helpful and Nigel for you to go through because you responded to this in your maybe pull that up, maybe, Robbie, and let him walk through those. Yeah. Would be, yeah. Yeah, let me share my screen, and I'll get those criteria up for you and. That would be in his letter to us on August 12.th And do you want his letter, or do you just want the criteria. Well, I think that he. Our letter would be nice. Okay. It's it's aligned. And also, if you're going to speak, I I saw you were there. I didn't have you introduce. Is that Angela? My name is Angela Gorbald. I'm Nigel Gorbold's wife. I also live at 1 0 0 3, 9 Street.

[29:04] Thank you. Appreciate that. Okay, so let's share their Rec and let him go through that for the benefit of the board. Give me a little bit longer, and I will have that up on the screen. Just while he's doing that. It would be helpful if you all could address the encroachment into the right of way question. That's come up. I don't know if you've gotten a survey on that issue. So you know the the aerial photos show the the property line directly on the edge of the the sidewalk. So at, you know for this. We, you know, since we didn't do do a permit, we didn't pull a survey for that specific, you know, like location of the wall. we, you know, we're just going off of the 18 inches from from the sidewalk.

[30:02] So when we, when we looked at, you know, like the position of the current wall, and when I measured it I think the the closest point is 10 inches. It's probably on average more like 12 inches back. Just because there was, you know, just that the different you know, areas that we saw, you know, we had bigger boulders that we kind of moved the wall out and around it by by an inch or 2. So. So the survey that was in the application. Did you not have that at the time. Did we not have that during the time of the. I guess this, this, yeah, the survey I think you had in the application. I think it was from 1990. Yeah. So we found that survey. You know what? During going to going through the Bozo application. Okay. So it's a it's a old a kind of a legacy survey done. Yeah, back in, I believe in the seventies.

[31:03] So we knew we didn't. We didn't commission a new survey, for it. To be technically correct. It is an Ilc which is an improvement location certificate. It is not a survey. So just keeping that in mind for the record. How are we doing, Robbie? Are you able to get that up. Yes, I didn't want to interrupt the conversation, so I'll bring it up right now. Thank you. And this is your writ statement and criteria. and it should be on the screen. Let me know if it's not. It is not. We have your window, your overall window. Let me try again. Always fun. Oh, yeah. I've only been doing this for a few years. So let's try that again. Perfect. Yeah, okay.

[32:00] Not going to touch anything. Okay. So, Nigel, this would hopefully support you in responding to Ben. Yeah. So you know, we, we put this together for the board. Kind of stepping through each each one. Angela. I was hoping to just mentioned something that hasn't been discussed to date. When we purchased this house it was in quite a poor condition, and there was a existing fir tree about 50 foot, 40 50 foot tree on our neighbor neighbors, property At the front of the house which had done a lot of damage to the front porch. It had basically pulled the foundations, and the whole porch was effectively toppling over stage and Oh, the project that we knew would be a lot of time and money.

[33:02] And we prioritized the wall because of our our concern for the neighborhood, because we were. you know, clearing the snow all winter on on, you know, 2 sides 2 paths which are 9th Street's a very busy street and we battle with a lot of students who don't clear their snow. So you know, we're quite diligent. Oh, shut me is clean, you know, is good. and we found good evening. Angela. Oh, pardon me. That's what I really was trying. Yes. Can I interrupt you? Your signal is wavering. So I suggest that you drop the camera so that we can hear what you're saying. And also time is limited, so please be sure to keep your comments short. But go ahead. We heard you about the snow. Sorry. Sorry I'm yeah, sorry. So so basically, when we purchased this house, there was a very unstable front porch and part of this whole by hand work was was really down to a very unstable foundation, that we feared that if we brought in any type of mechanical equipment we would topple the the front porch of the foundations, the rubble foundation. So really we were at our capacity limit. Of of trying to do the right thing.

[34:24] and build something that was attractive to. Thank you. Yeah, so. Directly listed, but an old house. Yeah. So I think that would explain the kind of use of hand tools and and not not using mechanical excavation equipment. Right? You know. I think that was that was the main main interest of this. So I I think, to address the points. And I know we're I don't want to be kind of cognizant of the time that we have. You know we've kind of laid out everything you know our response to, but both brc. 923 h. 1 and 9, 2, 3 h. 5,

[35:02] you know, the unique, unique Physical conditions. Is, you know, due to that unstable foundation of the house like it's a robo foundation, which is, you know. one of the main reasons we don't want to put excavation equipment in there in there to move it back. You know I I tell you it is. It is bother that's it's very heavy. Heavy excavation work required. And you know, to to the uniqueness. You know it is not unique in the neighborhood. But you know this situation of, or the the, you know, specific uniqueness of this property, and the slope down to the sidewalk. you know, does represent, I would say, a difficulty in actually moving the wall back another another 8 inches from where it is right now. And as far as the self foundation, you know, you know self creation. You know, we saw this as well have we created that you know that there was actually the silver maple tree as well as the pre-existing, I would say hardship of like actually getting into that hillside with what would ultimately need heavy excavation equipment.

[36:10] The requirement for variance under Brc, 9, 2, 3 h. 5. So, Robby, if you could just roll down you know again, we've kind of laid it out as far as the essential character of the neighborhood. You know. I know, Robbie agreed with that. You know we tried to keep with the essential character. We use reclaimed bricks from a project in the forties or fifties that were in the garage for you know, to actually use, you know, bricks we so so we tried our best to, you know, keep it within the nature of the house and the character of the neighborhood. And you know we we don't believe it would substantially, permanently impair the reason we use. We think we've improved it with the the fact that the sidewalk is clear and unobstructed by by the the rocks and the and I would say, the landscape that did come over and encroach upon the sidewalk.

[37:01] Which is, you know, improving, I would say, the use of that sidewalk, you know, just anecdotally. If you go to the any of the student rentals that are neighboring neighboring properties. You'll see a lot of a lot of grass and rocks and and landscaping that is encroaching upon the sidewalk. That you would definitely not get a a wheelchair pass and you know, to point C, would this be the minimum variance? We believe it is. You know it is. It is the minimum variance that because it's in place right now, and it would require, you know, moving it back another another 8 inches. So you know, I won't talk about the solar access. You know there's no solar act. There's no solar shadow on the neighborhood or a neighboring property as well as the solar access. You know it's been improved for for sunlight and kind of melting up the ice on the sidewalk, so I'll I'll kind of close it up there as far as response to all the points.

[38:03] Thank you. Thank you very much. Anyone else have questions for the applicant. Before I close discussion. I've been advised that Jen Ross from Code enforcement is in the audience, and would be able to answer questions regarding enforcement on this property. If anyone has a question for her. I do not well, other than my big question of why isn't it enforced uniformly across the city. hey? I don't, Erin. Is that a legitimate question to ask. I would say that for manners. not as a part of this application. Yeah, that's what I feel like, not for this application. So any specific questions. Yes, Nikki.

[39:00] I guess question for Aaron as well, or maybe could enforcement. Would code enforcement be able to answer my question in terms of the width of the sidewalk, or. if if not, it's completely fine. I I have the information that I need. You know. I I looked at the definition of the sidewalk in the code, and it's not defined by a width. It's just a paid a paid surface for walking. I believe that there are design and construction standards for construction, like if a new sidewalk was going to be put in somewhere what transportation would build it. you know, to certain specifications. I don't know what those are, and so far I've not been able to find it in the code to know if this you know, the what's on the hill is pretty old. You know new new design standards may well different. I? I don't think I need the answer to that question, but thank you.

[40:04] So I just had a question, I guess, for enforcement, and and maybe also for Robbie about to what extent is the encroachment on the right of way is, is that part of the enforcement? How big a part of the Enforcement action was the encroachment on the right of way, and also how how big a factor in Staff's decision to recommend not approving this application. How big a factor was that. So I'll speak to that. Just using calculations. And based off the ilc that was provided. It looks like 30 feet, you know in from the central line of 9th Street. results in this wall, at least partially encroaching into the right of way. By how much I don't know. We would need to get a an actual survey verification for that, but it does appear that a part, if not all, of the wall.

[41:03] is encroaching off of the property and into the right of way. So when it comes to the criteria, how much did that play into our determination? We mostly tied that into criterion. H, 5 b. how it impacts surrounding properties, impacts development impairs development, possibly, and the encroachment into the right of way would, in our opinion, impair development and use of kind of the sidewalk area, or just the general right of way. So the actual encroachment itself really was tied to criterion. H. 5 B. But we did have other concerns related related to the other overall project that tied into other variance review criteria. So that was just one part of it. So at this time. If we don't have any more questions for the applicant, I'm going to close the applicant portion.

[42:01] So if we don't have any more questions. We would be moving to public comment. If we have any, Thomas. we have Thomas here. You might. First.st Just a minute. There you go! I'm here. If there's any members of the public in attendance that would like to speak for public comment, please go ahead and raise your hand. I can call on you. I don't see anybody. so I think we can proceed. Okay. for the comment discussion. Do you want the applicant in or out. Thomas? I don't remember if they stay in. Oh, I'm sorry. It depends, I guess if there will be any. follow up questions. Yeah, let's let's leave them in. Then. Okay. Great. Thank you. So without any public comment, here, we're going to close it

[43:01] this to the public hearing, and we're going to open it to the board for discussion, and, as usual, please let me know when you want to speak. Just raise your hand, and I'll call you kind of in order of who I see, speak so. Who's ready? We, Nikki? Thank you. I like to defer to the most junior member. Thank you, madam, Chair. So I was looking mostly at criteria. 5 b would not substantially or permanently impair the reasonable use and enjoyment. And when I look at that word, use I'm really thinking about accessibility issues. I think that as we age hopefully, as we grow older, you know, at some point in our lives, we may be

[44:06] either temporarily or permanently disabled, and I'm very concerned with being able for all people to be able to have the use of this sidewalk, and because this wall is encroaching into the right of way. As we've heard we don't know how much into the right of way, but encroaching into the right of way. Really, makes me very concerned for everyone. Everyone's enjoyable use of the sidewalk, and so, for that reason, as well as h. 1 d. Which is any unnecessary hardship has not been created by the applicant as well as 5 c. Would be the minimum variance that would be afforded. Relief. I'm not in favor of approving this application.

[45:06] Thank you, Nikki. who's going next? We usually like to get a poll of everybody, so please at least say something. Then, Ben, thank you. So I am trying to 0 in on exactly the decision we're being asked to make. Yeah, as to the encroachment into the right of way. It doesn't sound like we really know, because all we have is an Ilc. We don't have a survey. but I'm not even sure that that's relevant. It doesn't sound like that's really within our power to pass upon one way or another. So I I think it's. And then I think whatever's going on. you know, and with other potential encroachment issues in other parts of the city or the neighborhood. I'm not sure, really. certainly, other parts of the city that's not relevant. Maybe other parts of the neighborhood is is relevant.

[46:00] but only if we had all the faxes to those other parcels. So I guess for me. I'm really just kind of looking within. you know, the 4 corners of this site in this project. and looking just at the the variance criteria. and I have. I mean, it's a heartbreaker. It's a good looking wall. I it's, you know, obviously was done with. It was built with great care in terms of the construction and everything. But it just seems like it doesn't comply with with code. and I don't I. I found Staff's analysis of the variance criteria to be compelling. So on all 6 of the 8 that Robbie identified as not being satisfied, I concur that I have no issues, of course, with solar access, or with the the character of the neighborhood. I think it augments the character of the neighborhood, but but as to the other 6, I I don't think we can get there. So I'm a i'm a no. Hmm. Thank you, Ben Drew. Were you ready. Yeah, I actually

[47:01] went up there and and measured just out of curiosity to see how it lied. And I I measured that the the fence was 27 and a half feet from the center line of the road. So. The fence, you mean, or the wall. The the wall, the wall. Sorry the wall. but I actually think that, like, Ben said, it's kind of immaterial to this particular variance request. and I, I said, from Robbie, you know, even if we gave a variance they would still need to go through the permit process. and they would probably run it into a roadblock because it's not on their property. however. even given that. I I do agree with the ben that the you know, each one or sorry the the 1st 3 criteria I don't think are being met. The the property is is not

[48:05] unique in that neighborhood? And so I don't think a variance is appropriate in this case. Thank you, Drew. Katie. Yeah, I'm I'm torn because I I drove by it yesterday, and it is. It's a great wall. It looks great and and I'm the the argument that the sidewalk, you know, previously would get iced over without the wall. I that's very compelling to me. So I feel like, if anything. the accessibility issues argue for keeping, you know, keeping the wall, but that that doesn't say that it. You know it. It would probably have the same effect if you moved it back 8 inches, and I and I do you know, I I did find Robbie's

[49:04] presentation about it not meeting 6 of the 8 criteria compelling? I just. I just feel I just I feel torn because I I can understand the what would be involved in having to move the wall and get heavy construction equipment in and and move the boulders. And and so I I actually find that compelling, too. It's just that I can't really attach a specific criteria to. You know my my overall wish that it it didn't have to be like that for the homeowners. so I I because because I can't attach my feelings to a specific criteria. I guess I would have to vote to not approve it. But I I just am I. I am torn. Thank you, Katie. and so I want to talk a little bit. For Nigel and Angela Gorvold about what happens when it looks like, we're going to deny your motion.

[50:06] and it's just what it sounds like. If we took a vote right now. We would not be able to grant your variance application. I wanted to talk about a couple of things that come to my mind. And I might need some help from the city attorney, and from Robbie, and sort of how to get you there. But I think our certainly as a board. It's very clear to us that proceeding. Tell me if I'm wrong proceeding without a survey, and without I clearly identifying the encroachments in the right of way. We really feel like we can't act. We really got our hands are tied. This is not something we can approve, because it's simply we don't know what we're approving. We must have more information. And with that information, it might bring up more clarity of how much work would be involved to rectify the situation. Certainly, as a builder myself, I know how much work went into this wall.

[51:00] and you can tell that we are sympathetic to that issue. And it's painful, very painful, to have to say to you. This isn't fine, right? And however it became, the city became aware of it. It's just difficult to know what to do. And I do think there are other encrosions similar to this all over the place, but they're old. They were there existing before, and it's just hard when you come in, and you think? Well, I can do this, and then you find out afterwards, after you put all this time and effort in that you can't do it. So let's talk Robby and Erin a little bit about what the options are. So when we have a motion, we have a situation where it looks like we're going to deny an application. There's a consequence that you need to know about. Can you guys go over that so that Erin, do you want to address that with them. Please. Yes, I can, if you have to do that, madam Chair. If an application is denied, an applicant is barred from bringing forward a substantially similar application for one year.

[52:09] So typically what we're gonna do in a situation like this is not vote, but rather give you some time to work with Robbie and staff to find a solution to this dilemma. That hopefully, is a if we can't, if it I mean, if we can't, we can't. But perhaps there's a compromise. Perhaps if you get a survey you'll find out there are only certain areas that are encroaching, in which case we might be able to work to craft. Something that's more sense, you know, can work with what you've already done. But if we deny this motion, you are, as Erin said, barred from bringing anything back to the Board for one year. I don't think that's what you want to do. Is that right? Yeah, absolutely right. And I guess the question is, if it's

[53:00] so if it's, is it still pending? I guess maybe we can take this offline with Robbie. But is it then pending like, and then requirements for. you know, going through the process again? So like. And does it stay? Does it stay open? Does the case stay open? Our attorney can address that. It would technically be a continuance. So this hearing would be would be stopped today. But no vote would be taken, and then you would have a a date certain to come back by. Usually. That's somewhere 60 to 90 days, because of the posting requirements. sometimes people do come back. Sometimes other arrangements are made. It's hard to tell with this one with the right away violations, what options might be out there. But it kind of pauses. The Boza action. Okay. Understood. And you, but you would not have to pay a new application fee. This application would still be pending.

[54:00] and your hearing would be stopped with the possibility of being taken back up right. Okay. So, and go, Robbie. Sorry, Mike, and say, pending the outcome of tonight, it sounds like it's could either be a continuance or a denial if it is a continuance. Obviously the Board's gonna want to make it clear what you expect to happen in the next so many days, and what you expect to be brought back to the board. because this is also associated with an Enforcement case. I guess the leash on that allowance might need to be a little shorter the enforcement case has been going on for almost a year now. so I don't giving them 6 months or 8 months might be a little too much in Staff's opinion. So just be mindful that there is an ongoing Enforcement case. And they can't do anything until the outcome of the Bose application occurs. So if it does come back. I just

[55:06] suggest that the board give, you know, very specific timeline, and what exactly you want to come back with. and if it does come let's just say one of the conditions of continuance is to obtain a survey to verify where that wall is. If it does come back that the wall is at 2 feet into the right of way. That's gonna be an automatic. You can't get a variance. It's you're gonna have to move the wall at least 2 feet away. Which then means you're gonna meet your 18 inch requirement which then essentially means the application should be withdrawn because approval of something in the right of way is not going to occur. So I guess the main point of that is if this does result in continuance from the board, if you could just be clear how long the applicant has. and then also what exactly you need from them, in order for them to be able to come back to the board. That would help staff out and Enforcement staff as well, tremendously.

[56:05] Alright. So I'm gonna start. You guys help me with this. So what we'll need is a motion for a continuance. That motion needs to be specific as to the time period. Here's my advocacy. I am not going to ask for less than 6 months. The reason is, surveyors are very busy. So even just getting someone out to survey could take him 60 to 90 days. So I could be wrong. But in my experience recently, that's what I've encountered. so I don't see that we're going to change anything that's already existing. We have a pending case. They know the case has been now. They may not want to live with it that long. Maybe they can get somebody in there more quickly. That's my feeling. Other people may have a different feeling. I don't run the board. I'm just the chair. So yeah. make all the decisions is my point. So if you think that 6 months is too long, please let me know now, so we can craft the motion. Accordingly

[57:08] Nikki. Thank you, madam. Chair. So my issue is not with the timing in terms of the length of time. My question is. is Boza, potentially advocating for how much encroachment into the right of way Bozo would be allowing the variance. Okay, please please explain, madam, Chair. Yeah. So this is the way it works in my mind. The motion states the premises that Bose cannot rule on this variance at this time, because there's encroachment in the right of way of which we have no control over. there is alleged to be encroachment, and so the applicant must go off and determine how much the encroachment is.

[58:03] At that time. They can come back to Robbie and discuss what needs to be done. Like, Robbie said. If the right of way is 2 feet away, they're going to easily meet the 18 inches, because they're going to get out of the right of way, and they're going to have to redo their whole wall. If the encroachment is 6 inches here and 0 somewhere else. then they may be able to wander that line. So we actually don't know the answer right now what is clear to me and hopefully clear to you. And I think the Board, if we cannot make a decision because we do not know one what the encrosion is, and 2, we have no control over the right of way. That enforcement action is sort of combined, and and Jen is here, Jen Ross, like I said. So if we want to bring her in and answer that piece. As to this particular issue. We certainly can do that. But that is my understanding is what we're saying is I. And we've talked about this before. We actually do not have one sufficient information to respond to this application, because we simply don't know.

[59:04] And 2, there's portions of this to which we cannot. as board rule, meaning the area that's encroaching. Is that more? And it'll have to be crafted. So I need your help in saying it correctly. And, Katie, you had your hand up too. So, Nikki, if that does that support what you're saying? Are we on the same page? Not quite. But I feel like if I heard from enforcement in terms of the right away question, I could get a little bit more clarity. And Jen is here. So is everybody okay to wait and let Jen speak, and then we'll continue our discussion. Okay, Jen. Hi, Jen Ross, I'm the code compliance division manager for planning and development services, and unfortunately, any of the wall that is

[60:00] in the right away will have to be removed from the right away. There's no way to leave it in there. None of that can be in the right away. So if. like, you were saying, Jill, if there's. you know, one that's at 0 inches, and one part of it that floats out, you know 5 or 6 or 4 whatever. All of that material will have to be removed out of the right away. They that it can't remain. But but if it wanders right in and out, just for example, if it wanders in and out. then portions that are outside of the right of way we could address but portions in the right of way we cannot address, which begs the question to me of why this is here sorry. 1st place, because it's really not our place. We can't help them, because we can't make a ruling about the portion of the wall that's in the right of way. Yeah.

[61:00] I mean, that's that's my understanding as well. And in any other case, that we've had materials that have been placed in the right of way. We do have those materials removed from the right away period. We just we can't have them in there. So. Drew. It looks like you have something to say. Yeah. I mean, I was surprised also that this came to Bozo. because. you know, they're there. There's actually a house under construction 2 parcels to the north. I'm sure they have a survey. They have survey pins out there. I mean, it's very mean just from the eyeball. It's in the right of way. and I I don't know it. To me it seems like kind of clear cut that it's you know I would. I don't know, you know, up to up to you, if you want to spend the money on a survey, and I and this is kind of immaterial to the Bose discussion.

[62:01] But it's kind of a discussion of what items come to our board. Yeah, I don't think it's immaterial at all. I think it's very relevant. Okay. To just argue about it, Drew, I'm just saying, with a survey they'd know if they were in or out, and they could proceed. And we're just guessing right now, Ben. Yeah, I just wanted to endorse what you just said, Joel. I don't know where the center line of the right of way is without a survey. I can see what's paved and where I think the center line is, but I have no way to know without a survey. so I would hope that if the applicant does want to keep the wall where it is, or take their shot at that. that they could get a survey that helps us with with where the wall is, where the property boundary is, where the center line of the right of way is. I'm not sure we need an Alta survey for the rest of the subject parcel. It's really just that Eastern boundary. I think so. Maybe that makes it cheaper and faster. That's a question for the surveyor, but.

[63:09] Thank you, Ben. I agree, Nikki. So thank you for that clarification. So my question is then hypothetically. if a survey does show that it is not in the right away. The question that will be coming to Boza is the variance for the 18 inches. Thank you. We're nodding heads. That doesn't show up on recording. Yes. that is so. We're trying to separate the issues. The 1st issue is. we don't know where the wall is. So where does that put us, Aaron? Because technically, we always he needs a continuance because he's made an application to the board. so we want that stayed, so that if he has to come back to the board that is right is preserved. During this period of time, he's not barred by the one year.

[64:06] and it may be that that's all we need to say right now that the applicant we we are moving make a motion the applicant has. we're granting him a continuance to obtain a survey, to determine which portions of the wall are in or out, I think, potentially encroaching in the right of way and based upon that response. He has the right to come back to the board or not. If. because the issue, when the right away is with enforcement. We are not an Enforcement board. We are not a design board. We're an appeals, technically an appeals board. And so that's I think that's the best we can do for you tonight. So is everybody on board with that such a motion? Okay, thank you, Nikki. So do you want me to say it said it now. So I'm going to move. No, normally, I don't. But I'm gonna move that we grant the applicants

[65:05] a continuance. Their their last name is Gorvold for 6 months up to 6 months. in which they can obtain a survey on the relevant line of their property to determine how much, if any, of the wall constructed there is actually in the right of way. and based upon that, they can either deal with code enforcement or come back to us for a variance. How'd I do? Yes, what else we need. And I. What I would suggest is, not worrying so much about what the applicant has to do during that time, because really it's up to them to decide how to present their application, and that it can be as simple as a motion to continue for up to 6 months. and I know the applicant has been been listening, and can consult the record later. If there are any questions about what the Board may find helpful.

[66:06] And that will be easier for for the minutes. Who wants to make the motion that Aaron just wrote. I'm freaked out about it. I move that and continue. Docket number Boz 2024, 0 0 8 for 6 months. Is that it. That's it. Second. I second the motion. 80 seconds, all those in favor in order on my screen. I'll start with Katie. I. Pen. I. True. I I'm gonna say, no. I don't. I don't. I don't think this is a Boze issue. So. Okay. And Nikki. Yes. Yeah. And I'm gonna say, yes, because whether or not it's a Bosa issue will become very clear. Portions of it seem like they are, and they may not be, but I appreciate your thoughts on it. Drew

[67:07] thank you. With that. The motion to continue is granted and approved, and you will. You have that information? You can work with Robbie on on other steps that you may need to do. Thank you for for taking the time to present to us this evening. Yeah, and thank you to the board for for your time this evening, and hearing us out. Really appreciate it. You're welcome. Thank you. Thank you. At this time. We're going to move on to the next agenda item. which is Boz 2024, 0 0 1 0. Go before. All right back over to me. Let me share my screen. Okay, this is docket number Boz 2, 0, 2, 4, 0 0 1, 0. The address is 9 55th Street, and this is a setback variance

[68:04] as part of a proposal to construct a new 110 square foot gas Regulator Station on a substandard size lot. The applicant is requesting a variance to both the front, west, and side. North setback standards for a principal structure in the Ig industrial general zoning district. The resulting front setback will be approximately 3.6 feet, where 20 feet is required. The resulting side setback will be approximately 0 point 9 feet. where 0 or 12 plus feet is required. Additionally, the applicant is seeking recognition and establishment of an existing utility building of similar size on site that was constructed in 2,017, but never properly permitted. It has one non standard setback as constructed. The resulting side north setback is approximately 3.4 feet, where 0 or 12 plus feet is required and approximately 3.4 feet exist today. Section of the land use code to be modified. Section 9, 7, 1. Boulder revised Code 1981.

[69:06] And I'm bringing another kind of unusual one to the board tonight. But up on the screen. You see the subject parcel. It is just over 2,000 square feet. It is a very small lot, and it is kind of owned, operated by Excel and that is, who is bringing the setback variants for you tonight. And again it is zoned i ig. Which is industrial general. And let's see here. there we go. So the upper image is a close up of the subject parcel, and the area circled in red is the area where both the existing Substation Building is and where the proposed one will be located, and I have a site plan of the proposed one coming up here in a bit, and then the lower right image shows the site as it looks. Today you can see the existing building that was constructed in 2,017, and then the space just to the left of that is where the proposed building will be located, and both of those buildings are subject to tonight's variance. Consideration.

[70:15] So I'm going to split this up into 2 parts, and I tried to color, coordinate them to simplify it just a little bit. So the existing building is the building that is out there today, and I have the green circle up there on the screen, and that is to recognize and establish an existing non standard setback. When the building out there today was constructed back in 2,017, it unfortunately did not go through proper permitting process, but it appears they tried to meet the setbacks. The required minimum front yard setback for the Ig zoning district is 20 feet, and the existing building out there today is right at 20 feet from the west property line, and then you can see up there on the screen. The existing interior side, South setback is at about 12.1 feet, where 12 feet would be the minimum required.

[71:11] so the only setback that the board is considering, for the existing building is the north Side setback, and that's to recognize and establish a setback of 3.4 feet, where 12 feet would be required. and then skipping to the proposed building. That's being brought on site from another location in the city, as was explained. Within the application materials. There are 2 parts to it. There's a front setback for approximately 3.6 feet from the west property line, where 20 feet is required, and no building exists today. and then a variance to the side north setback for approximately point 9 feet, where 0 or 12 feet is required, and no building exists today. And when I say 0 or 12 feet, this is a lot like the 0 or 3 feet, the board sees with accessory structures for single family homes. It's either on the property line or it's at at least 12 feet. There's no in between unless you obtain a variance, which is why they're in front of the board tonight.

[72:14] And then also on the screen, I wanted to show where the buildable area for this uniquely shaped lot is, and that little kind of salmon colored red colored triangle in the middle takes into consideration the front yard. the side setbacks of 12 feet, and then from the east point of the property, they would also be required 20 feet. So that sliver of red that you see, is the actual area of the property that meets all of the setbacks for the property, and I just wanted to have that on the screen for the Board's consideration. So they knew the buildable area for the for the overall lot. So those are the 3 variance of elements that the board is considering tonight again. to recognize and establish one setback for the existing building, and then to vary 2 setbacks for the proposed building.

[73:05] And this gives you an idea of the existing building from 55th Street, and you can see there, that's the shed, and closer to kind of where the picture is being taken is where the in within that fence is where the proposed building would be located. and then we have the. They gave a little information in terms of why the building is being relocated. It has to do with the flood zone and to I'm assuming it would be a good idea to bring electrical equipment out of the flood zone. I'll let the applicant speak to that. But you can see there in the lower left image. That's the existing regulator station, and these are terms that I've never had to use before during a Boze meeting. So I apologize if I'm getting something wrong. But that circled blue image is the actual station that will be relocated, and then a building will be constructed to house that building, and then we have some renderings of what the proposed building will look like, which is very similar, if not identical, to the building that's out there today.

[74:07] And then, again, not much in the way of zoning information given the variance at hand. Again, it's zoned Ig and the lot sizes around 2,257 square feet. There is no minimum for the Ig Zoning district and the existing and proposed floor area. I stated that only because with both buildings, we're looking at around 217 square feet of building coverage or floor area. And Ig zoning is actually regulated by open space, and the property is required at least a 30% or 677 square feet of open space, usable open space, which they will be meeting. So there is no concern when it comes to the open space not being met with the addition of an another building and a little bit in the way of the history. The existing building again, was built. Circuit 2,017 to house the relocated Regulars Regulator Station and replace previous a previous building that was on site. No building permit was obtained.

[75:09] and then the proposed building is to house a relocated regulator regulator station, and to remove from the current location within the 100 year flood zone. So with that the applicant did respond to criterion. h. 1 and H. 5, and that is what staff used when determining our recommendation staff is recommending support, as it has been proposed by the applicant for both the recognition of the existing building and the placement of the proposed building. The it's unfortunate that the 2,017 building that is out there today did not go through the permit process. And With that we do see the need for the exact location of that building. There are a lot of utilities, pipes, wires. a lot of things happening on this very small and oddly shaped property. So we do recognize that it is an incredibly unusually shaped and sized lot.

[76:10] and the conditions do not exist throughout the neighborhood, and especially the zoning district. It's not common that we see a property, this small needing structures being placed on top of them. and then h, 1 c, because of the physical circumstances or conditions, property cannot be developed in conformity with the provisions. Again, with the need of the building, the size of the building and existing site conditions on the lot. Putting it in another location would very likely prove to be very difficult. and then any unnecessary hardship has not been created by the applicant. The location of these buildings, I'm sure, is strategic and has purpose, and the location and the size of the lot kind of prohibits much in the way of flexibility when it comes to doing anything on the property. So we do feel that the need for the buildings,

[77:04] and the location at this exact location. Was not brought on by the applicant necessarily, and then h 5, a BC, and D, Seth feels that the applicant is supporting it. Again relocating, it would likely prove to be very hard to do if even possible. And of course, given the size and location of the building. Solar access will not be of this issue, and the essential character of the neighborhood will not be negatively impacted with the addition of one more building. So with that I will hand it back over to you, Madam Chair, and if you have any questions for Staff, I'd be more than happy to answer those. Thank you, Robbie. Questions for Robbie.

[78:00] I gotta say for me I'm kind of like. Can we argue with? Excel? What kind of control we have there anybody? Okay. is there somebody from excel here, too. support this application. Thomas. Do you know. Air ticket promoted access, and they should be rejoining us in just a second. Hi! There! Are you able to hear me at all? We are, and if you would be so kind as to introduce yourself, and with your state, your name and address? And can you join with video, it's preferable for presenters to be on video.

[79:03] Let's see if it'll allow me to do it. Full transparency. I'm working remote, and let's see. We are all remote. I am working remote from the mountains. Excellent! To clarify. Can you just confirm which address you would like, whether it's the site, address or my physical work. Address. Erin. Physical work, address, please. Perfect. Thank you. My name is Jared Pickett. I work for Hdr. Engineering. We are a consultant for excel energy applying for this application on behalf of them. My address is 1,670, Broadway, Denver, Colorado. Thank you, and you have a presentation you'd like to share with us.

[80:01] Outside of the presentation that Robbie prepared the information in there is what we provided. The regulator station that is being relocated or proposed to be relocated to this property currently sits within road right of way as well as within a flood plain, which is the driving factor for the relocation. In addition to what Robbie explained, the relocation is strategic in terms of existing infrastructure that we need to be able to tie into specifically where the the pipes run underground, and would come up above ground to be able to relocate this regulator station to the property as proposed. Thank you. Does anybody have questions for the applicant? Nikki. Hi! Yes, can you please tell me why the permit was not pulled in 2020 17 to construct the existing building.

[81:07] I can't speak directly to it. Unfortunately, I do know and and Robbie also did some digging on his end that there was some communication with the city of Boulder there was communication with engineering, I believe, and permitting, unfortunately, as to why no permit was pulled originally for that building in 2,017. I I can't speak to those details. Like. I said that the city of Boulder did go back to look for historic historical data on it, and was unable to find any. Robbie. Thank you and just to follow up with Jared. We did do a little digging, and it looks like the building was quote, unquote, like mentioned, brought up through a right of way, and maybe an electrical permit, or some sort of a utility permit. But it should. And we got confirmation from our engineering team. It should have been done through a building permit. It just was not so. It was brought up through one of many other permits that maybe it shouldn't have been associated with

[82:12] but it was then replaced. It replaced an older building. So that is, when we were told. you know, if it happens today, it does require a building permit, especially if you're housing a regulator station. So with that the applicant felt it would be best to both recognize the existing building, and then also, confirm the proposed building just to kind of clean the property up. Thank you. 80. Anybody else. I mean, isn't it just sort of weird that Excel can do whatever they want? I'm a little bit like not comfortable with this at all. You know, there's this tiny sliver they can build on. Why is anything being built there? Yeah, Aaron.

[83:05] Well, I I wouldn't characterize it as them being able to do anything they want. They are required to come forward with this variance. But the previous building they're not re, that's what I'm trying to figure. Are are they required to get a permit for the previous building? They should have been. It's just through whatever, for whatever reason it was not, and because of the permits that it did go through, zoning was not involved, so we would have caught the setbacks had it gone through a building permit. Unfortunately, it just did not. So it just it did. It should have, but it didn't. I don't think I'm the only person on the board who's not super comfortable with it. But I it it sounds like what you're saying is. they don't have to apply for an after the fact permit for this building. That's not in compliance. I believe so. And that's something that our building department would kind of handle more closely. But we were told, you know.

[84:05] it does need a building permit. So whether or not there's an after the fact for the old one that's just wrapped into the proposed building. Permit that's to be determined pending tonight. Ben, do you have anything to say? Oh, I no, I just had an itch. I was scratching, but I will. yeah, I mean, I'm happy to say that I would. I'm from a straw poll standpoint. I'm in support of this variants. It seems to me to be a sort of a classic case, for why the variance mechanism exists. It's a very odd shaped lot. and for all the reasons that Staff laid out in terms of walking through the criteria. Are, are we just a point of clarification? Are we at the point where we're discussing? Because I believe that the applicant is still giving their comments. Yeah, so have we closed the comment period for the applicant and the public.

[85:04] No cause. We still have to do the public. I'm just trying to ask why. whether the applicant knows why we're not going through a building permit process for the other building. Yes, that's why I should have been more appointed that I was asking you that question. So, yeah, I mean, I I guess my question would be, is is that germane to our decision? If it is, it would be good to hear more information. But if it isn't, then if it, as Robbie said, it's a building department decision, then I don't know that it affects our analysis of the variance criteria. I have separate questions about the city's power over excel, but I assume because this has come before us. The city's decided that they have jurisdiction here. So here we are. Bobby. And just real quick. I don't want to take away from Jared's time, but pending tonight. The city will look at. Does the existing building need a permit or not.

[86:05] the new building definitely will need one, and then, whether or not they can be incorporated into one single permit. That's a call that somebody else is going to be making, but it really stems off of tonight's decision from the board. If the Board were to approve it. Then the applicant, the property owner would move forward with necessary permits. I'm sure there's more than just a building permit required to do utility work and then also if the board were to not approve it, then obviously, that gets you the answer. So I just wanted to make it clear that tonight's decision. Really just lets the property owner know if they need to move forward with permitting, or whether or not they need to pull the project. Because well, let's do it this way. I'm going to go with Nikki. Do we have public comment? Because I think we're finished? We're are there any more questions for the applicant right now?

[87:02] Doesn't look like it. Do we have anybody here from the public who has anything to say about this application? We did not have any members of the public in attendance. And in that case I'm going to close the public hearing and open this for board discussion. So what I hear what my mind takes from this. Let's put it that way is that this is an unbuildable lot period without a variance. You can't put anything on the slot. Am I correct in that statement, Robbie. you are. Correct unless it's a 50 square foot building where that little triangle was so essentially. Yes, it's on. It's an unavailable lot. And the impact on the surrounding lots of us permitting the structures to be placed on this lot. Are you asking me if there would be impacts the property to the north is railroad property, so I don't think it would impact. The property to the south is another industrial, fairly large lot, and then we have 55th Street to the west, and then the property ends at a point on the East End. So I don't believe it would have any impact on surrounding properties.

[88:16] Okay. Other comments from people or emotion either way. I'm just gonna give a comment. I I feel like it meets the criteria in terms of granting a variance in term in terms of what we go through with our criteria. I'm very concerned that a company as big as Excel did not pull a permit for the building in 2,017. That's not something that I can vote on, and that's not something that I can base my looking at the criteria. But I do want to state it for the record. I want it to be on the record. That I feel that a company as big as excel, that has experience and

[89:06] buildings across our our State. Should should have gone through the correct process in order to get this 2,017 building permitted. I do recognize that if we grant this variance tonight that they will have to go through that process. But I and I don't need an answer to this question, but I assume that there are costs associated with getting a permit after the fact. I just want to make sure that excel is going through its due diligence. Now, going through the permitting process if they did not do that in 2,017. So while I am in favor of granting the variance for the application. I just wanted to make sure that my comments were were on the record. I. I have a follow-up question with that, because I agree with Nikki wholeheartedly.

[90:01] Can we stay the variance vote and say when they've applied for a billing permit, or are they unrelated? Yeah, Aaron. But that would not be part of the criteria. I would not recommend staying for them. Okay. thank you. Our comments will be on the record. It sounds like that's as far as it will go. So may I have a motion, please. Oh, Jared, you want to speak? Well, shall we let Jared speak that? Okay. okay, Jared. Go ahead. I I did want to just assure the Board that excel energy, and ultimately it's consultants. Hdr, we are going through these proper steps for this building, and and in the event that there is any retroactive permitting that needs to be done for the one in 2,017, we can certainly take care of that. As part of this process. I I can't speak to what the city would require for permitting a building that's already there, but we have been in in significant communication with the city of Boulder, not just specifically to the building permit, but any other permitting required for this one. So I did want to reassure the Board that as part of Hdr. Consulting, excel that we are going through those steps, and and relying heavily on what the city of Boulder requires, and their expectations for excel.

[91:20] Okay. thank you. Jaren. we have a motion, please. Yeah. Drew, do you have another comment. I'll just. I'll just say I agree with Ben, that this going through the criteria I believe it meets all the criteria I mean. so I I would be in favor. and then I'll make a motion. I'll make a motion to approve. Boz 0, 0, 1 0. That's all. Have a second. Second. Okay, all those in favor. I'll go and reverse this time. Nikki. Oh yes!

[92:00] Drew. I. Ben. I. Katie. Hi. I want to abstain, but it counts the same. So I thank you, Jared, for your time. I hope that excel gets the proper permits. that concludes our work for this evening other than going through the remaining items. that with which we close our hearing. So do we have any corrections to the minutes, or can we approve the minutes from last time. Motion to approve the minutes. Second, all those in favor. Nikki. Aye. True. I. Ben. Right. Okay. I. Jill, I any matters from the board. The city attorney. Well, Jen Ross was in the meeting. She she sent me some information to address your question, Jill, about.

[93:05] When is enforcement done for walls and fences that she wanted me to pass on. That when an officer sees a new fence or wall being built they'll stop if they notice that it is some sort of violation, but otherwise they go out based on complaints. So if no one complains and they don't see it. you know, then it might not be addressed until at some point someone does see it or an officer walks by. But she wanted to relay that information that they they do enforce when they're aware of something. Yeah, I I was told that there wasn't inform there was an officer came and looked and let it go, so I'll try it again, and we'll see what happens anyway. Thank you. I appreciate that, Aaron. And then, Robbie, anything from you, and Drew has something as well. I just wanted to clarify my comment earlier about it being in our role. And actually, i i i it is in our role to that the various application on the 18 inches.

[94:03] I sort of felt like, we're kicking the can down the road. Yeah, because I mean this group for the question of the 18 inches. It seemed like we were going to say, no. so I'm not sure how the survey really impacted things. and so we could have stopped it here, but I also think the city could probably stop it at any point and say, this is clearly not on their land. So I'm just trying to like, how do we use city resources? The best in our time? The best that was kind of what I wanted to say, but it's it's moot they'll they'll just kick the can down the road, and it will come to its conclusion. Thank you. I did not feel comfortable, not kicking the can down the road, so have to see how many of us were the same. Yeah, Nikki. I I appreciate you saying that drew in terms of the 18 inches. I think that's where I needed them more information. I think that

[95:02] my personal feelings about accessibility are still there, but, understanding how that relates to the 18 inches, I think that I would. I came to the conclusion that I would need more information in order to say Yes, I'm comfortable with the variance into regarding 18 inches or no. I do not feel like it meets the criteria based on this, and so I would not want to give a variant. So I I completely hear what you're saying. And I was kind of on that way as well like. let's just stop this here. But I was convinced, after further deliberation, that if they were to show that it was just the 18 inches. Then I would have an ability to make a decision of as to whether or not I believed that met the criteria. Understood. I mean, it's commenting also for the future.

[96:01] yeah, whether you know we, we always we always try to continue But if it's if it, if we think it's clear that it won't pass anyway. we might want to just say no. but I don't want to be the person to say, No, I want the city to actually say, this is not. This is a no, but Jill, you're muted. Jill, you're on mute. Well, I'm gonna agree with you that way, Drew. I kind of was like Robbie. Why are we looking at this? We can't make this approval. Now the thought in my head was that the homeowners insisted on going down this route because I'm a little surprised that it came to us because we can't, we, technically speaking, really couldn't rule on it. What do you? What is your comment on that. Erin. Aaron first.st There. There are code provisions about when an application has to be accepted when it's complete.

[97:00] So you know, if the applicant fills out their application, and submits the information for the variance. I don't know that the city has the authority to not accept it, because there may also be a right of way violation and I don't want to get too far into the details on this one, because the the hearing has closed. But we're not always able to to deny submission of an application. And I'll follow up with that is we do our best to get you good materials, clear information. That's not always possible. It is ultimately the applicant's application and their choice whether or not they want to go to the board with or without Staff's guidance and assistance. That being said. Sometimes applications do get to the board that have a lengthy background, and the board sees kind of maybe the top level of kind of all that information. So what we look for is, do they provide the minimum required to go in front of Boza? This applicant did.

[98:08] Beyond that. It's kind of on them whether or not they feel comfortable bringing those materials to the board. We do our best to kind of guide them and help them. But it is not our application, it is ultimately theirs and their decision to make. And I can also give another update. From Steph application deadline was this past Monday. We have yet to do final completeness checks. But it's looking like we're going to have. Possibly don't throw anything at me for items coming to Boza in October, so please attend in October, if at all possible. This is a good example of when having a full board will be incredibly helpful to not just the board, but to the applicants. Stay tuned on that. I'll provide an update, but it looks like we have 4 applications, including 2050 mesa that is coming back to the board. That is the item that the board continued last month.

[99:10] And what date is that? Robbie. It is October a 8.th I believe I can check real quick. Yep. Tuesday, October 8th is the next meeting, so less than a month away. And one of those is a continued item. Okay? And that's that's it. From Steph. Thank you. I think we're gonna adjourn this meeting. So thank you all. Oh, true. I will. I will be in China. It'll be 6 am. For me. I could make it if we need a quorum, but I would prefer not. Okay, we'll just kind of take that offline and kind of figure it out. You know. So yeah, others. Others. Let us know if you can't make it. If we have 4, we're okay. Okay. May I close the meeting?

[100:02] Meeting adjourned. Thank you. Everybody appreciate it. Everybody. Thanks, Robbie. Thanks.