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Minutes - 2010 - Design Review - 04/22/2010 - Regular DESIGN REVIEW BOARD MINUTES The Design Review Board met in regular session April 22, Chairman McCullough presiding. 1. CALL TO ORDER: Chairman McCullough calls the meeting to order at 6:00 p.m. 2. ROLL CALL: The following members were present: MC CULLOUGH, GRUBB, BUTLER, KOCI, PASCUA. ABSENT: BARNES, WHITTAKER. A quorum is present. 3. CONSENT AGENDA. · Consent Agenda items are considered to be routine and are acted on with one motion. There will be no separate discussion on these items unless a Design Review Board member, City Staff, or a citizen requests an item to be removed from the Consent Agenda for discussion. Items removed from the Consent Agenda wiU be placed on the Regular Agenda in a sequence determined by the Rules of Order. . Any item on the Consent Agenda that contains written recommendations from the City of Eagle shall be adopted as part of the Design Review's Consent Agenda approval motion unless specifically stated otherwise. A. Minutes of April 8,2010. Butler moves to approve the consent agenda. Seconded by Grubb. ALL AYE...MOTION CARRIES. 4. UNFINISHED BUSINESS: A. DR-04-07 MOD - Modification to a Multi-tenant Office Buildine: - Gale Poolev: Gale Pooley, represented by Shawn Nickel with SLN Planning, is requesting design review approval to modifY the approved site plan for the 1 ,872-square foot multi- tenant office building. The proposed modification includes reducing the required 24- foot drive aisle to 12-feet wide south of the parking on the south side of the building and the removal of the patio area on the north side of the building. The 0.18-acre site is located on the south side of East Winding Creek Drive approximately 430-feet west of Hill Road at 979 East Winding Creek Drive. This item was continued from the April 8, 2010 meeting. Butler notes for the record that he was contacted by Gale Pooley who asked him to represent him on this item. He declined. Butler asks City Attorney, Paul Fitzer if he is legally able to participate and vote on this application based on his previous knowledge of the application. Mr. Butler states that he has the ability to render an objective opinion about this project. Shawn Nickel, 148 Second Street, addresses the Board. City Planner, Williams addresses the Board. Discussion. Board discussion with City Attorney, Paul Fitzer. Board discussion. City Attorney, Paul Fitzer asks member Grubb if he has the ability to render an objective opinion about this project. Member Grubb states that he does. K:\DR-04-22-IOmin.doc Further discussion with the applicant, Shawn Nicke1. Grubb moves to deny DR-04-07 MOD - Modification to a Multi-tenant Office Building with the following comments for City Council to consider that utilities are not stubbed to the adjacent property. Seconded by McCullough. Discussion. ALL AYE, WITH THE EXCEPTION OF BUTLER, NAY... MOTION CARRIES. 5. NEW BUSINESS: None. 6. REPORTS: A. Design Review Board: Walgreens status, building permit has been issued. B. Staff: None. 7. ADJOURNMENT: McCullough moves to adjourn at 6:45 pm. Seconded by Grubb. ALL AYE...MOTION CARRIES. RESPECTFULLY SUBMITTED: ~~\!--~~ SHARON K. BERGMANN CITY CLERK/TREASURER ", ,II 11'11'"", ...." 0 F EA "" ......... ,,-{..........O(,A'" Iltl " . .. n. ~ :.. v... "'? 0 R -1 ... .. - -;. .. . 0'" rA." .. · c.. ~..: - .! . * .. : * .. .....-. : : - . - ... L -. - ~ ~.~ SEA ,~:o: ,:. ..~ Q.-': '0; <5'-,.. ..~~POR,.~~.. ~ ....... "" / ~ ............ ~ ...... "'I, I'c of \V ",,, "'II" '.11.1"'" APPROVED: ,~~~.~. ERIC R. MCCULLOUGH CHAIRMAN A TRANSCRIBABLE RECORD OF THIS MEETING IS AVAILABLE AT CITY HALL. K:\DR-04-22-10min.doc f MOORE SMITH BUXTON & TURCKE, CHARTERED ATTORNEYS AT LAW BANNER BANK BUILDING 950 W. BANNOCK STREET, SUITE 520, BOISE, ID 83702 TELEPHONE: (208) 331-1800 FAx: (208) 331-1202 TO: Design Review Board, Staff FROM: Paul J. Fitzer DATE: April 22, 2010 RE: DR 04-07 MOD - Modification of Pooley Design Review Application It has been brought to my attention that Mr. Pooley has opted not to present a variance application to the City, but would still like his application before the Design Review Board to be processed by that entity. I wish to reiterate some of my concerns raised in my April 7, 2010 memorandum. I. The Sought -After Relief can only be provided via a Variance Mr. Pooley is asking this Design Review Board to recommend approval of his request to reduce the required twenty-four foot (24') paved, drive aisle to twelve feet (12').1 This sought-after relief is not a modification of the subject property's design pursuant to ECC 2-2-42, but rather a variance. ECC 2-2-4 is neither the appropriate medium nor is the Design Review Board the proper venue to evaluate such a request. While the Design Review Board may review the relative site design of the project including the Mr. Pooley's request to modify the approved patio/trellis, the Board does not have the authority to recommend a variance relieving an applicant from complying 1 Eagle City Code 8-4-4-2(F) requires that access for 90 degree parking be provided by a twenty-four (24) foot drive aisle. Eagle City Code 8-4-3 requires all drive aisles to be paved. 2 Pursuant to ECC 2-2-4, the Design Review Board is vested with the responsibility and jurisdiction to: ... protect property rights and values, enhance important environmental features of the city, and to ensure that the general appearance of buildings and structures, along with development of the land, shall not impair or preclude the orderly and harmonious development of the community. The board shall review all development proposals within the design review district. Within this district, the board, with input from the zoning administrator, shall regulate landscaping and beautification laws, review building design, and review site planning, signs, grading, development. This includes, but is not limited to, the regulation and restriction of the type of building, number of stories, size of building, construction, reconstruction, alteration, repair, or use of buildings and structures. The board shall ensure compliance with the requirements of the respective design review overlay districts, city of Eagle comprehensive plan, and relevant ordinances. with any required Eagle City Code provision; specifically the required width or paving of a drive aisle.3 In fact, I would caution the Board that were it or the Council to simply grant the applicant's request to reduce the required paved drive aisle to twelve feet, such would amount to an implied variance without process. "A city council or county commissioner may not permit an implied variance violative of land use ordinances."4 Only through a duly noticed variance proceeding where interested members of the public are provided notice and an opportunity to testify pertaining to the variance, can the City Council relieve an applicant from complying with an ordinance. It has also been asserted that other properties in the City have had reduced drive aisles approved by the City. While I disagree with the examples cited, which either predate or otherwise meet the ordinance provisions, I also view this as largely irrelevant. Even if a property were erroneously permitted to utilize a reduced drive aisle absent a noticed variance procedure, this does not mandate that all subsequent property owners are entitled to ignore the legal requirements as well. A police officer is never terribly impressed with the argument that "because you let the car in front of me go for speeding, you are required to let me go too." II. CONCLUSION If Mr. Pooley wishes to have his application be heard this evening pertaining to a modification of the trellis/patio layout, this is squarely within the purview of the design review board. However, the Design Review Board does not have the authority to reduce the required width or paving of the drive aisle. Therefore, this matter should not be deliberated or decision issued therein. 3 Pursuant to Idaho Code ECC 8-7-4-2, the Council alone is vested with the authority to grant an applicant a variance thereby relieving the applicant ... from the terms of this title as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this title would result in unnecessary hardship. No nonconforming use of neighboring lands, structures or buildings in the same district and no permitted or nonconforming use of lands, structures or buildings in other districts shall be considered grounds for issuance of a variance. Variances shall not be granted on the grounds of convenience or profit, but only where strict application of the provisions of this title would result in unnecessary hardship. A variance may not be granted unless the council makes specific findings of the fact based directly on the particular evidence presented to it which support conclusions that the above mentioned standards and conditions have been met by the applicant. Pursuant to ECC 2-1-5, the Planning and Zoning Commission, not the Design Review Board, is vested with the authority to conduct a preliminary public hearing on all variance applications prior to proceeding to the City ,01"..‘ Council. 4Hubbard v. Canyon County Com'rs, 106 Idaho 436,437, 680 P.2d 537, 538 (1984).