Variance Application APP2003-00819, Byron and Kathryn Marshall The applicant seeks a variance to construct a six-foot tall fence in the front yard instead of a maximum of 42 inches as permitted. The property is located at 402 Linthicum Street. An Affidavit of Posting was submitted into the record as Exhibit 1. Mr. Marshall presented the applicants’ request. Mr. Marshall explained why they are requesting a six-foot tall fence to replace the existing 3-foot picket fence that surrounds much of the backyard portion of their property. Chain link fences belonging to their two adjoining neighbors enclose the remaining portion. The purpose of their request involves the safety and security of their 4-year-old twins who have autism. He introduced the people in the audience who wrote letters to the Board expressing approval of the subject fence. Mr. Marshall discussed the reasons why they are proposing to maximize the most useful space possible in their backyard. He said that they are proposing to make the proposed six-foot fence as aesthetically pleasing as possible. He said that, in reviewing the letters sent to the Board, it is evident that there is a need for a higher fence than what currently exists. The issue is the location of that fence. Because of City regulations, the proposed fence would have to be placed closer in on the backside of their yard because of an existing City right-of-way. He noted that they would currently loose approximately 3,300 square feet from what is now their fenced-in backyard. Mr. Marshall stated that they are asking the Board to consider the placement of a new fence so that it starts at their driveway at approximately 16 feet back from the existing 3-foot picket fence and gradually angles back to approximately 28 feet, which would align it to front of the houses on Farragut Avenue. This would allow them to retain approximately 500 square feet of those 3,300 square feet. In terms of the actual placement of the fence, it is fortunate there are two rows of existing trees that would be in front of proposed fence on Farragut Avenue. It would help blend in the fence as well as make it more aesthetically pleasing. In addition, they plan to transplant some of the small trees and bushes that are along the City right-of-way and plant them in front of the fence. The design of the six-foot fence is a shadow box, which would be more attractive and would allow some sunlight to show through the fence. Mr. Marshall explained that the size of the backyard was the major factor in their decision to purchase the property. The size of their backyard is used for therapy purposes for their twin boys. He noted that they understand and appreciate the City and neighborhood’s concern over the location and appearance of the proposed fence as well as the possible precedent it might set if their application were to be approved. However, they believe their special circumstances as well as the fact that the existing plants, trees, and coverage would make it aesthetically possible and justify this as a special case. Mr. Marshall pointed out that the record could show this application as a special case and not a decision that would lead to similar requests. Mrs. Marshall distributed letters to the Board from neighbors and friends, and teachers expressing their approval of the proposed six-foot fence. Mrs. Marshall emphasized the importance of their backyard. The children spend an enormous amount of time in the backyard. They use the backyard for therapy purposes every afternoon after school. Therapists come out and use the entire space of the backyard in hopes of helping their children. This is the reason why they purchased this home, which was because of the size of the backyard. Mrs. Marshall noted that they are here this morning to ask for approval of the six-foot fence for their children and because this is an unusual case. She explained about her sons’ disabilities and that they would keep the property in front of the fence attractively landscaped. In response to Mr. Deitchman regarding the findings listed in the staff report that must be made in order for the Board to approve this variance, Mrs. Marshall explained that their neighbors across the street have witnessed their sons running down the street because they managed to climb over the existing three and a half-foot fence. That is why they are asking for a six-foot fence. Mrs. Marshall said that they could not take their sons to City parks because they would run away. A six-foot fence would be much safer; they would consider a fence six inches shorter if the Board would require it. Approval of this application should not be a precedent because it is an unusual case. Mr. Sternstein stated that he understands the need for a six-foot fence, but there would be no issue at all if the fence were moved back a few feet. Mr. Sternstein asked Mr. Marshall to refer to the plat and address the area in the triangular area in the back yard. Mr. Smith stated that the rear line on the plat is actually not the Marshalls’ rear lot line. The area on the plat was moved forward because the rear lot line is the City’s right-of-way. There are other fences currently in that right-of-way on the block. The Board discussed the City right-of-way, how long the fence has been on the right-of-way, whether it would be possible for the City to license the applicants to use its right-of-way. Mr. Smith stated that through discussions with the Department of Public Works staff, many fences ‘ are located in City right-of-ways, and until there is a need, the City will not remove those fences. The following citizen answered questions from the Board about the subject property: 1. Charles Jespersen, 1711 Farragut Avenue, testified that he is an original owner and he lives across the street from the Marshalls and he has been living in his home since 1955 before the Marshalls’ house was built. The 15-foot right-of-way was the City limit line in 1955. Those 15 feet was for a storm sewer, which is no longer in use because the City extended the storm sewer down to Linthicum Street when they extended the street when the new houses were built. Mr. Jespersen said he used to grow vegetables on the right-of-way and at that time, the City told him that they were never going to use that area. Mr. Deitchman stated that he is not sure that the Board has the authority to let the applicants use that right-of-way. Mr. Chasten pointed out that if the residents could demonstrate and the City could verify that that easement is unnecessary, the residents could apply to have the right-of-way abandoned. Mr. Deitchman stated that that would not be the Board’s decision. Mr. Marshall stated that they are asking for 500 square feet back from the 3,300 square feet that they cannot access. The Board further discussed issues of concerns regarding a sidewalk that goes down on the side of the subject property that ends at the property line, trees, design of the fence, landscaping in front of the fence, and uniqueness of the property. Mr. Deitchman stated that, in some sense, the uniqueness of this property is that it is a corner lot. Mr. Smith stated that if the subject property were an interior lot, the applicants could have an eight-foot fence. The following citizens testified in favor: 1. Melissa Grant, 1617 Carriage House Terrace, Silver Spring, Maryland, testified that she is a teacher at Maryvale Elementary in the Autism Program. She described her classroom environment as being highly structured. She said the school’s teaching method for autistic children is very specific because these children have a very slow rate of learning. Ms. Grant stated that she teaches one of the Marshall boys and he is very hyperactive and needs constant vigilant care because he does escape the classroom at times. Ms. Grant stated that the proposed six-foot fence is really a safety issue for the children. She asked that the Board consider the six-foot fence with regard to the growth and physical needs of the children. 2. Charles Jespersen, 1711 Farragut Avenue, testified that he supports this application because he is a great grandfather of a three-year old who has some developmental problems. He said he has a six-foot fence because he has a dog that would jump over a 42-inch fence. He noted that when he saw the sign in the front yard stating that the Marshalls plan to build a six-foot fence in the front yard, he was not happy with the location, but, the fence would not be in the front yard; it would be in their back yard because they have a corner lot. Mr. Jespersen stated that the fence would be attractive and would be softened by the plantings. In response to Mr. Hill, Mr. Jespersen stated that he could not imagine the proposed fence would be contrary to anybody’s interest because it is so important for the children. 3. Allan Ostrow, 504 Linthicum Street, testified that he originally was going to oppose this application. He went to the City when the notices were sent out and he was horrified when he learned that the fence was proposed to go completely around the house because it would be completely out of character with the neighborhood. However, after listening to all the comments today, he does not have a problem anymore. The applicants have looked at the neighborhood and talked to the neighbors and they are putting the fence in such a way that it would not block the view on the corner of Farragut Avenue and Linthicum Street, and it is not on the front part of their property, he does not have a problem with the application. He said he has had many opportunities to observe Mrs. Marshall waiting for her children at the bus stop and he thinks it is great. In response to Mr. Hill, Mr. Ostrow explained that the way the fence has been designed along with the landscaping fits the Marshall’s needs and it is very practical. In response to Mr. Sternstein, Mr. Ostrow stated that he opposed the fence at first, because there are very few six-foot fences that start at the sidewalk line and come down. He said there are some six-foot fences because of the dog situation. 4. Susan Stinson, 1714 Farragut Avenue, testified that she lives next door to the Marshalls and her property would be most impacted by the fence. She stated that when the Marshalls first approached her with their plan, which, at first, would have blocked her home from the street and make entering and exiting her driveway safely more difficult. After several discussions, they have compromised on a fence that starts at the corner closest to her home; the fence will not protrude any further forward than the front wall of her house. The fence would gradually angle as it moves towards the Marshall’s driveway so that it would include a large evergreen tree planted in their yard. Ms. Stinson stated that this revised plan would not block her house and, therefore, she would support this application. Ms. Stinson submitted into the record a drawing of her property and photos of the subject property as Exhibits 2 and 3. In response to the Board, Ms. Stinson noted that the existing fence already blocks her visibility. 5. Jane Bell, 1712 Farragut, testified that, at the beginning, she was determined to stop this fortress, but the Marshalls have been wonderful in trying to work with their neighbors about their concerns with the proposed fence. Ms. Bell stated that she did not know the Marshalls at the time and she did not know their situation, and now she is convinced that this compromise is the way to go. Ms. Bell stated that she is not against the proposed fence anymore; she would support this application and she wants to be a good neighbor. Mr. Jespersen talked about the history of the neighborhood. The Board and the Marshalls discussed the findings that must be met before the Board could approve the application. Mr. Hill pointed out that Reverend Mansfield Kaseman of the Rockville United Church sent the Board a letter of support. Mr. Hill said that Reverend Kaseman wanted to attend this hearing, but he informed him that he could not be available this morning. Mr. Marshall presented his closing statement regarding the findings and the measurements of the property to be fenced in. There being no one else to speak for or against the variance application, the Chair declared the public hearing closed.
Variance Application APP2003-00820, Igor Bukstein The applicant seeks a one hundred seventy square foot variance from the maximum six hundred square foot size limitation for an accessory building. The property is located at 306 Mannakee Street. An Affidavit of Posting was submitted into the record as Exhibit 1. David Burwell, 7008 Rainswood Court, West Bethesda, stated that he is a friend of Mr. Bukstein and is representing him this morning. Ms. Hall distributed additional letters from surrounding neighbors. Mr. Burwell summarized some of the facts in the staff report. He noted that Mr. Bukstein is a recent American citizen who is from Latvia. Mr. Bukstein presented the reasons why Mr. Bukstein applied for a building permit to build a garage. He is a contractor and repairperson. He has a small house with a carport; his wife is a senior provider and they have three children, so they do need two cars. Mr. Bukstein also needs a place to store all of his equipment. The result has been that the materials have been carried over into the carport and cars end up out on the driveway and blocking the sidewalk. Mr. Bukstein came to the City to ask for help and applied for a building permit for an accessory L-shaped garage that was about 1250 square feet. The Division of Inspection Services walked him through the process. They looked at the plans for the garage, made some changes, and wrote notes on the permit. Inspections Services stated that the permit is fine and asked if Mr. Bukstein wanted it issued to him that day for an additional amount of money. Mr. Bukstein began construction, built the foundation as required, called the inspectors, and put the slab in. The inspectors came out to the site three different times, inspected his house and the garage as it was being built, approving each of the stages throughout the summer. However, on November 23, 2003 when the garage was just about finished, Inspection Services, in response to telephone calls from neighbors, came out, told Mr. Bukstein that the garage was too large, and issued a Stop Work Order. The inspectors report stated that it was not only the size of the garage but there were other factors relating to height, which, has been checked, and there is no problem with the height; the garage is less than fifteen feet. Mr. Bukstein has invested over $20,000 into this project based on what he thought to be a valid permit. Mr. Burwell stated that Mr. Bukstein is willing to knock down part of his garage and scale it back to 770 square feet - the remaining back section of the garage. The reason why he wants to do that is because he has already poured the foundation and that first square block in the foundation is 770 square feet and that would allow him to park his vehicles and store his materials. The Board discussed concerns regarding the building procedures with regard to the subject accessory garage. Staff explained the issues identified in the Stop Work Order. Mr. Deitchman asked staff if Mr. Bukstein could build a 600 square foot garage without a variance. Staff replied that that was correct. In response to Mr. Deitchman, Mr. Burwell explained that a basement and attic that are attached to the building are in the back of the building and they would be abandoned. Mr. Burwell stated that he believes Mr. Bukstein has a vested right since he was issued a building permit and that is unique to this application. Mr. Bukstein and his interpreter presented the case. The interpreter stated that one thing Mr. Bukstein wanted to do in the beginning was to establish the context of his dealings with the Planning Division. The interpreter provided information regarding a specific court case establishing the misfortune of whoever was doing the construction. That case is Permit Financial Group of Montgomery County, which, the developer lost because he submitted incorrect property plans. Mr. Bukstein’s plans were thorough and it was an unfortunate mishap in the process on the City’s part, which resulted in this situation. Mr. Deitchman pointed out the City is saying that, though Mr. Bukstein did everything correctly, there is still a violation of the code. The interpreter stated that Mr. Bukstein wanted to cooperate with the City, even after the Stop Work Order was issued. He offered to cut back the building. As Mr. Bukstein reviewed the staff report and read that the variance he is asking for is recommended for denial based on three criteria that the City staff felt were not met. In reviewing the documents, he agrees that aside from being located on a hill, there is no argument to be made about the oddly shaped lot. However, the analysis on the public interest and practical difficulty does present some issues with staff. The interpreter stated that as far as public interest goes, Mr. Bukstein wanted to point out that once the garage is completed, it would be in the style of the neighborhood. In that sense, it would not be an eye sore. The second point is that the height of the building would be within the legal limits and would not represent an issue. The third point is that the reason why Mr. Bukstein needs the garage is that he is a contractor with equipment to store, and without the garage, he would have to store the equipment in the carport, which would overflow into the street, thus creating an eyesore to the public. This is a practical difficulty. The Board discussed concerns regarding cutting back the garage 100 square feet, and the cost to reduce the size of the building. The following citizens testified in favor of the application: 1. Mary Charbonneau, 304 Mannakee Street, testified that she supports the application. She said that she has seen Mr. Bukstein’s work inside his house and it is beautiful; he is a contractor and does renovation and she said she has the greatest confidence that the garage would be an asset to the neighborhood. 2. Edco Bailey, 6 Mannakee Street, testified that he has driven by the subject property frequently and he does not know the applicant, but a building such as this would not bother him at all. He noted that he owns property in the neighborhood and he is concerned about his property value as well as Mr. Bukstein’s livelihood and if his building promotes that, he thinks it is wonderful. The following citizens testified in opposition to the application: 1. Theresa Defino, 400 Mannakee Street, testified in opposition to the application because the building is much too large and does not aesthetically fit into the neighborhood. The building is more than one needs for a garage and she is concerned about drainage issues. The Board discussed the downsizing of the building and drainage issues. 2. Jane Mangum, 715 Wilson Avenue, testified that she opposes the application. She noted that the applicant’s driveway is very steep and there is room for only one car there. He should rent space to store his equipment. She said she would prefer reducing the building to 600 square feet rather than 773 square feet. Ms. Mangum stated that when she originally called the City to ask about the building, she was informed that the permit was signed by mistake; the person who signed claims he never signed the permit. She also stated that when Mr. Bukstein informed the neighbors of his plan, he told them that he was a carpenter/cabinet maker and his need for the building was to store his equipment. Ms. Mangum stated to the Board that Mr. Bukstein should rent storage space for his equipment in lieu of the oversized building in a residential neighborhood. Mr. Burwell stated Mr. Bukstein is a carpenter by trade, which should not be held against him. Mr. Sternstein stated that in each instance, there are still other interests and properties around the subject property. He noted and asked Mr. Burwell whether the City should be in the position to deal with the rights in interests of those citizens who have come before the Board in opposition to the application. Mr. Burwell replied that that is a fair question and it comes down to the overall public interest. Mr. Burwell provided the reasons why Mr. Bukstein is in need of this accessory building. Mr. Deitchman asked about the use of the building and will there be commercial use in the garage space. Mr. Bukstein replied that he only wants storage for his tools, not for commercial use. Mr. Bukstein explained that the drainage issue and that he has built the roof of the garage to divert water away from his neighbors. The Board discussed the issues of concern regarding the size of the building and drainage. In response to the Board, Mr. Bukstein said he would be against cutting the roofline down. Mary Charbonneau, 304 Mannakee Street, pointed out that the building is hardly visible nine months of the year. Jane Mangum, 715 Wilson Avenue, also pointed out that the building is visible from Wilson Avenue. She noted that Mr. Bukstein cut down a number of trees to build his building. In response to questions from the Board, Mr. Chasten explained that a home occupation must be conducted within the dwelling, so it would be illegal for Mr. Bukstein to use the subject building for business purposes, except for storage. Ms. Hall pointed out that the applicant could use the same equipment for his own use. There is kind of a blurred line here, but if the applicant’s phone number for his business is in the house, it is a home occupation, and then he has to be careful that he has no outside appearance of the operation. There being no one else to speak for or against the variance application, the Chair declared the public hearing closed. OLD BUSINESS Special Exception S-194-92, Lone Oak Center, 1010 Grandin Avenue The applicant is requesting approval of a tenant update listing and signage. Mr. Chasten explained that the applicant is before the Board to request approval of a previously approved Special Exception for a tenant update and signage. Mr. Chasten said that there have been some tenants, who have left the facility since 1992. In addition, the Board has purview over approval of signs in residential areas. Since new canopy signs are being requested, staff had to bring this back to the Board for its approval. Mr. Hill recused himself, because his son attends daycare center abutting the subject property. Alan Lovell with CHI Centers stated that they are the landlord of Lone Oak. Mr. Lovell explained that since the last special exception, a number of uses have left the Center. The current occupants of the Center are the Support Center, which operates a medical daycare center for senior citizens; The Joseph P. Kennedy Institute operates a day habilitation program for individuals for severe developmental disabilities, etc. The CHI Centers also operates a small day vocational training program for adults for developmental disabilities. The major change is that the Rockville Boys and Girls Club and the Mooney Boxing Academy are no longer tenants. Prior to his involvement, he believes there were other offices there as well as a health clinic. The only new tenant is the CHI Center. Mr. Lovell stated that there is a major renovation now going on. Mr. Lovell said that they propose three sets of new signs. There are three major entrances into the facility. Two signs are proposed for the front of the facility; they are canopy type designs that are over the entrance area. One of the signs will say, “CHI Centers at Lone Oaks and there will be two names of the agencies that will use that wing. In addition, a canopy sign will be located at the other major entrance at the front of the building that will say “The Support Center and then to the side of the building adjacent to the daycare center, a sign will say “CHI Centers”. Mr. Sternstein stated one of the condition of the special exception is that any new sign on the building would not exceed the density. Mr. Lovell replied that none of the proposed signs would exceed that density. Mr. Lovell stated they notified the neighbors and had a display of the proposed signs in the multi-purpose room of the facility and there were no objections. After further discussion, the Board found that this request complied with the previously approved special exception. Mr. Chasten stated that the only formal action the Board needs to take is that the signs, based on the presentation, the Board approve the signs. Mr. Sternstein moved, seconded by Mr. Schwartzman, to approve the requested signs based on the representations of the applicant regarding the change in tenant list and change in signage. Mr. Sternstein stated that it is the Board’s view that the request complies with the conditions of the previously approved Special Exception S-194-92. The motion passed unanimously. Variance Application APP2003-00821, Raoul Lissabet for John Miller and Elizabeth Wade The applicant proposes to construct an addition onto the back of the house at 2603 Northrup Drive. At its widest points, the addition will measure twenty feet three and one-quarter inches by twenty-seven feet. An approximately six foot by eight and one-half foot full bathroom is also proposed within the space. An Affidavit of Posting was submitted into the record as Exhibit 1. John Miller, applicant, presented his request. He said that they are requesting just over a three-foot variance to build an addition on the back of their home. Mr. Miller explained that the variance requested would not be contrary to public interest because their lot is a five-sided lot that is either restricted by setbacks or by an easement. The layout of the interior space of the house combined with the original placement of the house further restricts possible functional additions. In response to the Board, Mr. Miller stated that the design of the addition was approved by their Homeowners Association. In addition, the neighbors had no objections to their proposal. Mrs. Miller submitted letters from the neighbors into the record as Exhibit 2. Mr. Miller stated that they are in favor of the conditions in the staff report. There being no one else to speak for or against the variance application, the Chair declared the public hearing closed. DECISIONS Variance Application APP2003-00819, Byron and Kathryn Marshall Mr. Hill moved, seconded by Mr. Sternstein to approve Variance Application APP2003-00819, Byron and Kathryn Marshall as amended as submitted by the applicants regarding a fenced-in property for the findings that this would not be contrary to the public interest and that the public interest is not impacted to the extent that it is objectionable. There are conditions peculiar to this property and the placement of the fence in regards to lack of a continuing sidewalk and established vegetation that is involved in the placement of this fence. In addition, this is a corner lot and speaking of what is extensively a back yard even though it has a front yard street frontage. Literal enforcement and practical difficulties are tied in the fact that this is a corner lot where use of the backyard is because the applicants desire it is impacted by side yard setback on the side of the property and there is also some extenuated circumstance related to the mental disabilities of occupants in this household that suggests that it is essential that the applicants have great use of this structure. The Board is requiring that this fence be placed behind two stands of arboreta trees and one white pine tree and a front of a second substantial tree and also that at the corner of this lot, to place a small row of recently planted trees and another row of three mature trees that was represented to the Board in the application. There are also two recommendations that do not hold a force of condition, but the Board would, nevertheless, attach this to the public record: 1) this fence would eventually be removed at such a time that its purpose for the applicants would end; there is also an issue regarding a right-of-way across the back of the property and as an administrative appeal matter, the applicants obtains the permission of the City to extend the fence at the back between lots 11 and 19 in this lot and this would not alter the ??? for this variance. The motion passed on a vote of 3-1 with Mr. Sternstein voting nay not for the reason that he does not think there is something unique about the property; he is not persuaded that practical difficulty is not shown because the rest of the lot can be used for the purpose of which the portion of the variance is being sought can be used and he is not satisfied that there is not an adverse impact on the public interest if only as indicated by the fact that the Board, itself, seems to be unwilling to vote that the fence be removed after the need for the height of the fence is over when the residents’ sell the property. Mr. Sternstein stated that he concurs with the Board’s recommendation that the City be encouraged to license the use of that right-of-way so the applicants could build a fence over that right-of-way. Variance Application APP2003-00820, Igor Bukstein Mr. Sternstein moved, seconded by Mr. Hill to deny Variance Application APP2003-00820, Igor Bukstein for the reasons in the staff report because there is no uniqueness of the property because conditions would have an adverse impact on the public interest, but with that denial go the recommendation that the City be requested or the Mayor and Council or some other appropriate channel to provide whatever assistance it can to the applicant in terms of the applicant having to reconstruct what has already been constructed as the result of some unfortunate errors in the processing of the building permit issued to the applicant. The motion passed unanimously. Mr. Deitchman voted aye with sympathy for the applicant in following the rules he was presented with by the City. Variance Application APP2003-00821, Raoul Lissabet for John Miller and Elizabeth Wade Mr. Sternstein moved, seconded by Mr. Hill, to approve Variance Application APP2003-00821, Raoul Lissabet for John Miller and Elizabeth Wade per staff recommendations stated in the staff report. The motion passed unanimously. NEW BUSINESS Mr. Chasten reported that staff has given the Board a letter from a representative from the First Baptist Church of Rockville. They are requesting expedited processing of their application based on the reasons listed in the letter, dated March 3, 2004. Mr. Chasten said that he met with Ms. Corbett, who is the director of the childcare center, who is asking staff to bring this application to the Board on May 1, 2004. In response to the Board, Mr. Chasten stated that the applicant meets all the posting requirements. OLD BUSINESS Mr. Sternstein stated that he could not attend the May 1, 2004 Board meeting. Mr. Chasten reported that the accessory apartment application that was to come before the Board has been withdrawn by the applicants. There were too many objections from the neighbors. The applicants have taken the stove out of the apartment. MINUTES Mr. Hill moved, seconded by Mr. Sternstein to approve the minutes of Meeting Nos. 1-04 and 2-04 as amended. The motion passed unanimously. ADJOURN There being no further business to come before the Board, the Chair adjourned the meeting at 12:55 p.m. NOTE: Should further details of this hearing be required, a tape recording of the meeting is available. The Planning Division maintains a tape of the meeting for a period not less than one year from the date of each meeting. | 
