NEW BUSINESS Review of Text Amendment Application TXT2004-00210, Mayor and Council The Mayor and Council is revising and clarifying the sign regulations of the Zoning Ordinance. Ms. Block explained that this text amendment makes certain revisions to the City’s existing sign regulations as they are contained in the City’s Zoning Ordinance. Ms. Block presented the background as to why the City is now revising the sign regulations. Ms. Block explained that certain outdoor advertising companies in the business of erecting large billboards along heavily traveled roadways are engaged in a nationwide campaign of challenging the constitutionality of municipal sign ordinances. These companies file lawsuits making broad-based attacks on the sign ordinances, often alleging deficiencies that have nothing to do with billboards, on the chance that they can convince a court to invalidate an entire sign ordinance. If this tactic proves successful, the sign companies then erect large billboards before the municipality can enact another sign ordinance. Ms. Block stated that an outdoor advertising company that was denied permits to erect within the City a number of large, off-site message sign commonly referred to as billboards has filed such a lawsuit against the City of Rockville. The proposed signs far exceeded the maximum size sign permitted within the City and violated the prohibition against signs that “contain the name of a building, product, business, service or institution, which is not located on the same lot as the sign.” The lawsuit filed in Federal Court alleges that the sign regulations of the City’s Zoning Ordinance are impermissibly content based giving preference to commercial speech over noncommercial speech, and, constitute a prior restraint on speech in that they fail to provide time frames in which officials are required to act on sign permit applications and appeals from permit denials. That suit has been dismissed on standing grounds by the Federal District Court. The dismissal is currently on appeal before the Fourth Circuit Court of Appeals. Ms. Block stated that, in order to avoid any possible future uncertainty and to discourage future frivolous challenges by the billboard industry and others, it is desirable and in the best interest of the City and its citizens to make certain revisions to the sign regulations by amending and modifying the sign provisions to codify current practices pertaining to the interpretation and enforcement of the sign regulations; clarify the constitutional purposes of the sign regulations; confirm the City’s current practice of allowing noncommercial messages wherever commercial signs are allowed; make clear that the regulations do not unconstitutionally restrain or restrict speech; and to make clear that it is the City’s intent to provide ample and constitutionally adequate opportunities to engage in noncommercial speech while protecting the community against the deleterious effects of unregulated signage. The text amendment also provides an opportunity to make certain grammatical and stylistic changes, eliminate certain outdated provisions, update other provisions, and to make certain other desirable revisions to the sign regulations.
Ms. Block stated that the City Attorney’s office has reviewed the City’s sign regulations as interpreted by the City and the City’s enforcement practices and concluded that they pass constitutional muster and that the challenges raised in the lawsuit are without merit. The City has applied and interpreted its sign provisions in a constitutional manner. Ms. Block stated that current regulations provide that the Sign Review Board review requests from the City or an applicant to review a sign permit and make a determination as to whether or not the proposed sign complies with the requirements and purposes of the ordinance. The Board of Appeals is obligated, under Section 66B, to hear administrative appeals. Ms. Block said that the City Attorney’s office is proposing time frames in which the Board of Appeals is required to act on appeals from the Sign Review Board: 1) Conduct a hearing on an appeal from the Sign Review Board not earlier than 15 calendar days from the date that the appeal is filed and not later than 45 calendar days after the appeal was filed; 2) Issue a written decision within 10 business days from its hearing on any appeal from a decision of the Sign Review Board. The members of the Board, in general, had no problem with the proposed time frames. The Board members want an opportunity to visit a site before the hearing and the proposed time frames afford sufficient time to do so. The Board observed that the hearing time frame is more of a staff issue, in that staff must have sufficient time to process the appeal and to provide the required notice of the appeal and hearing.
There was some discussion as to whether the Board’s practice of not meeting in August would present any difficult in meeting the proposed hearing time frame. Since the Board establishes a meeting calendar at the beginning of each year, the Board suggested that staff explore the possibility of providing for a hearing at the next scheduled meeting following the filing of an appeal, subject to notice and administrative requirements. Several members noted that the Board has held expedited hearings and special hearings in the past and that an August hearing could be accommodated if necessary. Mr. Sternstein moved, seconded by Mr. Schwartzman, to pass a resolution confirming the Board’s approval of the recommended time frames for review and written opinions by this Board as proposed in the City’s Zoning Ordinance as presented to the Board by Ms. Sondra Block, Assistant City Attorney, with the understanding that staff would consider the feasibility of providing for a hearing at the next scheduled meeting. The motion passed unanimously. The Board also requested that it receive an annual briefing on the actions taken by the Sign Review Board so that it may familiarize itself with the type of issues that come before the Sign Review Board. PUBLIC HEARING Variance Application APP2004-00825, Reginald Miller The applicant seeks a five-foot six-inch variance from the rear yard setback requirement to build a sunroom addition at 1107 Halesworth Drive. An Affidavit of Posting was submitted into the record as Exhibit 1. Mr. Miller presented his request. Mr. Miller presented his reasons for requesting the proposed sunroom addition: 1) the variance as requested would not be contrary to the public interest because his lot is oddly shaped with a sloping rear yard that has limited use; 2) an encroachment into the rear yard setback of five and a half feet seems minimal in order for him to bring functionality to his back yard; 3) the encroachment is limited to a triangular area on the west side of his house where the grade is not so steep. Mr. Miller stated that the variance is requested owing to conditions peculiar to his property and not the result of any action taken by him. He explained the reasons are that the rear lot line does not run parallel to the front lot line; the rear yard slopes so severely; and, a house style was chosen that calls for a deeper lot type. He noted that the attached garage is located almost 24 feet closer to the street than the main portion of the house. Placing the garage in this fashion pushed the house farther back on a lot that could not afford to lose any area that could serve as a functional backyard. Mr. Miller stated that he is trying to achieve functional recreational space on his property. It seems that the only other option available would be to terrace the rear yard to create an outdoor living area. This option would require significant grading and could change the stormwater run-off patterns for the surrounding properties. Mr. Miller presented comments to the Board after he received a letter from his neighbors at 1133 Halesworth Drive (Doris R. Raffel). He said he had no knowledge of the letter until he received the staff report in the mail. After reviewing the letter, he noted that his deck is barely visible because the Raffles’ have a heavily wooded backyard with at least eleven trees ranging in height from 50 feet, 35 feet to a 100 feet, with a mix of evergreen trees and deciduous trees, so they have privacy right now. He said that adding the sunroom on top of his deck would not affect anything, since the neighbors’ house and backyard are barely visible from his deck, especially during the spring and summer months. Mr. Miller commented on some of the things he could do, even without a variance that could probably be more obtrusive than building the sunroom. For example, He could move the sunroom over to the east side of the house without a variance. He said he is not asking for more ground space than already has been taken by a deck. The other option, he could create a terraced atmosphere by pushing his deck out nine feet beyond his building restriction line without a variance. This would protrude even farther than his current deck and would make the deck more obtrusive to the neighbors behind them. Mr. Miller stated that if he had to move in by 5 and a half feet to conform to the building restriction line, he could build a sunroom without a variance and this would give the same perspective to the neighbors behind him. Mr. Miller noted that he was very surprise to see the two complaint letters and photographs, which he believes were taken at exaggerated angles in an attempt to show the supposed obtrusion. He said he would like to point out that, in a neighborly manner, the Raffels are the first neighbors he consulted about his plans, discussed them over the phone, and they gave him their support. They never mentioned any objections to him. The first time he knew anything was when he received the staff report in the mail. Mr. Miller submitted photographs of his deck into the record as Exhibit 2. He took the photos of his deck from normal angles. The photos would demonstrate to the Board that there is no intrusion and they show how heavily wooded the Raffels’ backyard is screened and it also shows how much privacy the Raffels’ already have. The Board discussed concerns regarding the proposed sunroom, its obtrusiveness to the neighbors, the reason for the proposed sunroom, lowering the existing deck so the sunroom would not be as obtrusive, a condition that would prevent the applicant from not adding a structure beyond the proposed sunroom, building the sunroom to the edge of the existing deck, and plans for the roof on the sunroom that would not cause an impact to the neighbors. Mr. Miller stated that he does not have formal plans for the sunroom and roof, but he plans to go to an architect for a more formal set of plans. Mr. Sternstein mentioned a window facing the deck and how Mr. Miller would avoid obstructing the side window by carrying the roofline forward. Mr. Miller stated that he does not believe the entire window would be covered. Mr. Sternstein stated that he is concerned about this application because there are no formal plans.
Mr. Sternstein inquired whether the neighbors were present. He asked Mr. Miller if he would agree to some sort of a compromise between him and his neighbors and come up with something that is suitable to both Mr. Miller and the neighbors.
Joe Dulany, 819 Aster Boulevard, asked Mr. Miller if he would consider lowering the pitch of the roof three or four feet. Mr. Miller replied that that is a very good idea. Ms. Hall stated that the lower pitch of the roof would open up the side window facing the deck. In response to the Board, Mr. Miller stated that he is totally open to what the Board instructs him to do. Mr. Hill questioned whether the walls were going to be glass as opposed to solid material. Mr. Miller replied that the walls are going to be a combination of both. He said they do want some privacy and so they have not decided whether 80% is going to have glass feature. It will not be like a solarium. The following citizens testified in opposition to the application: 1. Doris Raffel, 1133 Halesworth Drive, stated that she is Mr. Miller’s neighbor. She explained that when Mr. Miller contacted them about his plans, he represented that he was going two feet over the building restriction line and now it is five and a half feet over the line. Ms. Raffel stated that from the photos she sent in one could see that the Millers’ property slopes dramatically and her property is at the bottom end of that sloped property. She said that half of her trees are evergreen, but they are not intermingled. The remainder is persimmon trees and a wild cherry tree. The persimmon trees are very tall and messy. The pine trees are growing so tall that their privacy lost since the branches are elevated. She said they are lovely homes, but, unfortunately, she believes the builder maximized the lots. The building restriction is there for a purpose, in order to have some sense of aesthetic quality in the neighborhood. She said that it sounds like Mr. Miller can build a sunroom and stay within the building restriction line. In response to Mr. Sternstein, Ms. Raffel stated that she is not prepared to commit to two feet over the building restriction line. Ms. Raffel noted that when they entertain on their deck, many of their guests comment that they have a lovely yard, but it is too bad they have a house looking directly at them. It is something that people are aware of and she does not feel it is hypersensitivity her part. She stated that the Millers bought their house subject to those conditions and she believes that they all have to work around the conditions. Ms. Raffel stated that one of their neighbors on one side of them built a beautiful deck, which was subject to building restriction problems, and as a result, they created a deck with lovely angles. So, she is not prepared to say “yes” to two feet over the building restriction line. Mr. Deitchman explained to Mrs. Raffel that the Board, at times, has required plantings and it looks as though screening would have to reach up to the second or third floor to give them any additional privacy. Mrs. Raffel stated that she wishes that the Millers would do that. She said she and her husband put up a fence when they had a dog, which was about 18 years ago, and they do not have the dog anymore and the fence is rotting and they are not sure that they are going to replace it. Mr. Deitchman noted that the burden is on the applicant for a variance and the building code is what the Board is required to enforce. He commented that the Board could require the applicant to screen it, the Board would have to select something like a blue spruce or something that could take a couple of years to screen the sunroom from the Raffels’ property. Mr. Hill stated that a landscaping problem may exist since such planted trees would be in an already shaded area.
In response to the Board, Mrs. Raffel stated that she does not believe the Millers have any trees; the trees are all in the Raffel’s property. Mr. Hill said he visited the Raffels’ property and viewed a substantial evergreen tree, which seems to mask that left side of their yard where the sunroom is proposed. Ms. Raffel pointed out that the evergreen trees have grown so tall that privacy is lost. Mr. Deitchman pointed out that Mr. Miller could, by right, build a two or three story addition off to the right of the back of the house and it would ultimately be more obtrusive to the neighbors. 2. Mark Raffel, 1133 Halesworth Drive, discussed the photographs he took of the Millers’ deck. He said he tried not to over exaggerate the view from the Millers’ deck. He tried to show how close relative to their backyard that triangular shape actually comes to the corner. The fact that their property is down below does create an exaggerated look. Mr. Raffel said that some photos were taken from their deck. He said he did go as close to the property line as he could just to show the proximity of the Millers’ deck to their property. Mr. Raffel stated that he concerned that this is still a speculative type of project and some of the issues that were brought up today concern him. He said he is not quite sure how a decision is going to be made without knowing exactly what the building is going to look like. Mr. Miller commented that the Raffels were the first people he talked to when he first began planning his project and no measurements were made at that time. After going to the City’s Planning Division to apply for an application, Ms. Hall told him to go back and take accurate measurements of his property. He said he hired a person who took detailed measurements and as a result, that is how the measurements came out differently. Since those measurements were taken, his plans changed from two feet to five ½ feet over the building restriction line. He tried to talk to the Raffels and left messages for them to call him back, but they never returned his phone calls. He said he wants to assure the Raffels that there was no intent to obfuscate anything. Mr. Miller discussed the photographs he took of his backyard and noted that one cannot see the Raffels’ house from his deck because of the density of trees. The Board discussed its concern that there is no defined plan for the roofline, and suggesting that the applicant minimize the impact on the neighbors by revising the plans for the project, and discussing the project with the Raffels to come up with a compromise. Priscilla Miller, 1107 Halewood Drive, stated that they are planning to build a sunroom where the deck ends and the roof of the sunroom is going to match the existing roof on the main house, and the side window will go. Mr. Schwartzman recommended that the Millers hire a professional to work out the details, for there are a number of options they can do and still obtain the same functions and the same use as well as minimizing the variance. Mr. Sternstein informed the Millers that there is no assurance that even if they revise their plan that it would be something that the Board would necessarily approve if it requires a variance. Mr. Miller stated that he has his rights also, and noted that he presented his photographs that show how unobtrusive the trees are, and that they cannot see the Raffels when they are on their deck, which is fine for both them and the Raffels. Therefore, it is not like there is no protection. He said he would like to emphasize that point. The Raffels have a not of protection seven months of the year. There has to be give and take on both sides. Mr. Miller said that he felt that the burden should be shared. Mr. Deitchman pointed out to Mr. Miller that the burden is not shared. The burden is solely on the applicant. Mr. Deitchman informed the Millers that he feels that the roofline is as impactful as the building itself. Mr. Miller said he was totally amenable and flexible and would go with whatever the Board wants. He noted that there is no deadline on this project. Mr. Deitchman asked the Millers if they would like to go forward this morning with the variance or delay it until they have more detailed plans. Mr. Miller replied that he and his wife would like to discuss it and return shortly with a decision.
Variance Application APP2004-00826, Saul Kravitz The applicant is seeking a two-foot variance from the side yard setback requirement to construct a covered porch at 1386 Stratton Drive. An Affidavit of Posting was submitted as Exhibit 1. Mr. Kravitz presented his request. He said he is asking for approval to construct a covered porch that measures seventeen feet long by six feet deep. A set of stairs is proposed for the front of the porch but the steps do not require a variance for their construction. Mr. Kravitz explained that existing stoop comes directly off the driveway where the family enters into the house. They are trying to replace a decaying metal stoop with something more functional and attractive. He said that the building restriction line between them and their neighbors on the side of the house. Mr. Kravitz stated that, given what the staff report indicates, he would like to focus on the two of the findings regarding conditions peculiar to the property and whether literal enforcement would result in practical difficulty. Mr. Kravitz stated that they would like to build a deck that is six feet wide near the entrance and the reason for that is to make it much easier to get children and packages in and out of the house and also, given their aging parents, to allow for future wheel chair accessibility to that entrance. He noted that the code would allow them to encroach on the building restriction line by four feet for an eight-foot length as the staff report indicates. They really do not want to go that way for two reasons: 1) six and a half feet from the house is an pre-existing railroad tie and gravel path that leads down a set of stairs to the back entrance to their house. Therefore, if they build out within their rights, they would to move that path and that would be a considerable expense. In addition, they do not want to disturb a mature Japanese maple tree that is fairly close to the house. The other aspect of building within the allowed encroachment as opposed to the variance they are asking for is an aesthetic one. They want to build something that would be symmetric with respect to the side of the house. Mr. Kravitz noted that the neighbors, most impacted, have seen their plans and they have no objections to the proposal. A letter from the neighbors is included in the staff report. Mr. Hill stated that he does not quite understand is the practical consideration for the extension of the porch beyond the door. Mr. Kravitz explained that they do want to have some area there, since the house does not have a garage, to serve the same kind of function as an entry portico or a mudroom. He noted that having the porch covered would be a big convenience. He noted that anything smaller would be less practical for them. In response to Mr. Deitchman, Mr. Kravitz explained that the deck would not serve a recreational use. But, the portion of the deck toward the back of the house is not covered and would be a place to put their grill. In response to Mr. Deitchman, Ms. Hall explained that she recommended denial of the project because she could not identify any condition that is peculiar to this property. She said that the applicant did come back to the City with a second submittal along with a better explanation. Ms. Hall said she is still grappling with the uniqueness of the property. She feels that there is no harm to this project; the next-door neighbor has constructed an uncovered walkway the side of their house probably for the very same reason in that it is difficult to navigate from the front to the back due to the grade. Therefore, it is still sort of an entry situation depending on how one uses their property. The Board discussed concerns regarding the size and use of the project. There being no one else to speak for or against the variance application, the Chair declared the public hearing closed. Variance Application APP2004-00825, Reginald Miller In continuation of the public hearing, Mr. Miller stated that he and his wife have chosen to defer their variance application until a future meeting. Mr. Miller explained the reason why he and his wife have elected to defer their application is because it was their impression that their application would not have been approved today based on the comments received from the neighbors and the Board. They prefer to wait until he refines his plans, keeping in mind the constructive comments that the Board has made today, which he really appreciates. In response to Mr. Miller, the Board members expressed concern regarding a detailed architectural drawing of the proposed roofline, another possible configuration for the roof that would appear to have less mass to it in terms of height, bulk, and appearance, considering other sunroom designs for more of an aesthetic value, and discussing the project with the Raffels to come up with a compromise. Mr. Raffel referred to the phone call Mr. Miller made to them and explained that they were out of the country for the last two weeks or so, therefore, they were unable to return his phone call. In response to Mr. Deitchman, Mr. Raffel stated that he and his wife would certainly discuss the project with the Millers. There being no one else to speak for or against the variance application, the Chair declared the public hearing closed. Variance Application APP2004-00827, Joseph Dulany The applicant is seeking a three-foot variance from the side yard setback requirement to construct a two-story addition at 819 Aster Boulevard. An Affidavit of Posting was submitted into the record as Exhibit 1. Mr. Dulany presented his request. Mr. Dulany explained the purposes for the addition. The main reason is that he has a close dependent that is handicapped and may eventually move in with him and his family. Therefore, they need a garage so that the family friend can get in and out of the house, with the house, without being exposed to weather. Mr. Dulany spoke to his next-door neighbors, whom recommended some changes to his proposed, yet they had no objections. Mr. Dulany discussed the design of his project. Mr. Dulany pointed out that his proposal would not be contrary to the public interest because there are many houses in his neighborhood that do have garages that do encroach into the eleven foot setback. He said that when the subdivision was originally built, garages were allowable encroachments, so there are quite a few of them. There are many that have received variances including a house on his street. In fact, the neighbors next door have a one-car garage. Mr. Dulany stated that the requested variance is not the result of any action taken by him. Mr. Sternstein commented that it seems that it is almost a result of a change in the Zoning Ordinance. Ms. Hall explained that it seems as though the builder was not thinking ahead. If the house had been better sited, with the thought in mind for a future carport or garage, a variance would not be necessary today. Mr. Dulany said he could not build the garage on the other side of his house because of the storm drain in front of the street. If he would put the garage in the rear, he would not be allowed to put a driveway in because according to City code, only asphalt and concrete are allowable for driveway surfaces. In response to the questions from the Board, Mr. Dulany explained that part of the chimney would be inside the proposed garage. In addition, the kitchen and dining room would be moved to the second floor of the proposed addition. He said all the rooms would be moved, because he is trying to plan where to install an elevator. Mr. Dulany stated that he needs a garage, whether he builds it in the proposed location or not, and this is the best location as far as trying not to impact both of the large trees in the rear nor his neighbors. If he had to build a conforming garage, it would probably go behind the house. He is trying to build in the side yard as opposed to the rear yard to accommodate his handicapped friend. Mr. Dulany also explained that the garage will not only serve to store the car, but will allow for direct entry into the dwelling by his handicapped friend. The elevator will then allow for the conveyance up to the first floor of the dwelling. To make space for the elevator as well as an expanded bathroom, the spaces within the existing dwelling are being rearranged. The second story of the addition is meant to house the replacement kitchen and the dining room, which helps the flow as well as specially giving him room to build the elevator. If he builds the garage in the rear, it would affect his view of the park as well as the value of his house. Mr. Dulany addressed the literal enforcement by stating that one cannot drive a car into a garage that is less than twelve feet wide. The following citizen testified: Steve Mulhoun, 817 Aster Boulevard, testified that he has two concerns about the proposal. One is the curb cut from the street would not be aligned with the door of the proposed garage. He would like to see the curb cut in line with the garage door to avoid any navigation problems going up the handicapped ramp, if it is installed. In addition, he is concerned about the safety of the children walking along the sidewalk. He noted he would also like to prevent the retaining wall that would become necessary from becoming a structural element within the easement and would become closer to their property line. Mr. Mulhoun commented on the roofline for his second story to permit more sunlight and he has agreed to do something with that. Mr. Dulany submitted a new rendition of the roofline into the record as Exhibit 2. Mr. Dulany stated that he has discussed this with Mr. Mulhoun. In response to Mr. Deitchman, Ms. Hall explained that the applicant would have to obtain a permit from the Department of Public Works if he would be realigning the curb cut. Mr. Dulany said he has spoken with Public Works about the curb cut and they would not be able to do anything for two years to give him an estimate on how much it would cost. Ms. Hall explained to the Board that every five years there is the resurfacing of the asphalt in the City. Before they do that, the City sends the concrete crews through to bring the driveway aprons and the curbs up to standard. It is apparent that this cycle is two years away. In response to Mr. Deitchman, Mr. Dulany stated that he was willing to accept the curb cut realignment as a condition. After further discussion of the curb cut and retaining wall, and there being no one else to speak for or against the variance application, the Chair declared the public hearing closed.
De Minimis Revision for Variance Application APP2003-00801, Jerry Hostetter
Mr. Hostetter presented his request that he and his wife are revising their plans for the roofline of a previously approved Variance Application that was before the Board July 12, 2003. The property is located 1304 Broadwood Drive. Ms. Hall explained that the applicants have contracted with another architect, and the addition (that did not require a variance) and porch have been redesigned and works better for them. Since one of the conditions of approval was that the porch be constructed in substantial accordance with the submitted plans, it was decided that the Board should look at the revised plans. There being no one else to speak for or against the variance application, the Chair declared the public hearing closed. Variance Application APP2003-00814, Stephen Beck The applicant is requesting a 23-foot front yard variance as well as a 7.5-foot right side yard variance to construct a front porch consistent with a previously removed front porch and a rear addition at 12 South Adams Street. An Affidavit of Posting was submitted into the record as Exhibit 1. Mr. Beck presented his request. Mr. Beck explained that he plans to renovate the existing building, which includes constructing a new front porch and expanding the rear of the building. He said it is a historic property and was reviewed by the Historic District Commission supported the proposal during a courtesy review on August 21, 2003. In response to the Board, Mr. Beck explained that the front porch would extend across the front of the building and wrap around the left side of the existing house. This will give the building access to the porch, which it has not had previously. In response to Mr. Hill, Mr. Chasten stated that a formal hearing by the Historic District Commission has been scheduled for June 17, 2004. Mr. Hill noted that a 23-foot variance on a 25-foot setback is extreme and it is because of the historic nature of this property that that comes into play. Mr. Chasten agreed. In response to the Board, Mr. Beck stated that he agrees with the staff recommendations and the uniqueness of the property is that it was built back in the 1860s and was built right on the property line on one side and built up to the front on the other side way before any setback requirements were enacted. Mr. Beck noted that there have been no objections from any of the neighbors as well as those neighbors most impacted by the proposal. Mr. Chasten distributed copies of a memorandum from the Historic Preservation staff, written on August 12, 2003, which gives the history of the dwelling. This document was submitted into the record as Exhibit 2. Mr. Beck discussed the plans for the expansion of the rear of the existing house. The improvements to the rear of the building will increase storage area as well as complement the other buildings on the block. He stated that the Historic District Commission will review the replacement shutters and siding as well as other make sure the new addition would be compatible in size, scale, color, material, and character to the original building. There being no one else to speak for or against the variance application, the Chair declared the public hearing closed.
Special Exception Application SPX2004-00340, Orteck International Mr. Sternstein recused himself from this application because his firm is counsel for this client and it would be inappropriate for him to hear the matter. Mr. Schwartzman agreed to be a voting member of the Board for this application. The applicant is requesting a special exception to establish and operate a business engaged in the retail sale and installation of vehicle tires, batteries, stereo installation, custom window tinting, and accessory sales, including other complementary service. The property is located at 706 Rockville Pike. An Affidavit of Posting was submitted into the record as Exhibit 1. Erica Leatham, Attorney with Holland Knight, presented the applicant’s request. Ms. Leatham stated that the applicant proposes to occupy the old Simmons building, which is currently vacant. The applicant plans to renovate and upgrade most, but not all of the existing building structures on the subject property in order to accommodate the planned business use. The applicant plans to raze one or two of the existing building structures located along the site’s northern side yard lot line and construct a new replacement building structure that would physically connect all of the building structures on the site. The community is heavily developed with retail; there are no residential uses nearby. Ms. Leatham stated that the Planning Commission recommended approval with one condition “That use of an outdoor intercom, loud speaker, and/or public address system is not permitted in the operation of the applicant’s proposed business/special exception use.” Ms. Leatham stated that the applicant agrees to all of the recommended conditions in the staff report including the condition recommended by the Planning Commission. In response to Mr. Hill, Mr. Chasten explained that one of the Planning Commissioners, noted the issue of the use of intercoms and the proximity of those residents living across the railroad tracks. It was pointed out to the Planning Commission that there are no residential properties within reasonable proximity to this site. Diane Wylinsky, Director of Business Development for Orteck International, described Orteck International as a tire manufacturing and distribution business. Orteck is actually one of the top ten distributors of tires to the continental U.S. Ms. Wylinsky described the location of the property and the direct frontage and access comes right off Rockville Pike. There are two existing tenants on the property, a computer business and a locksmith. They will be relocated to the Simmons building. Ms. Wylinsky described the business. She said Orteck focuses on specialty vehicles with regard to custom tires, tinting, wheel polishing, stereo installations, etc. She said that there would not be much traffic as a result of this business because people do not tend to browse in this type of store and many people do preliminary shopping over the phone to save themselves time and trouble. There will be 14 bays to do the specialized work. There will be about 10 employees and the store will be open six days a week from 8 am to 8 pm. In response to Mr. Hill, Ms. Wylinsky stated that the two retail businesses would be relocated to the front of the Simmons building for visibility. Mr. Hill inquired about the structure of the Simmons building and whether the applicant plans to retain some of the intrinsic value of the building in the proposal. Ms. Wylinsky replied that they plan to improve the façade and also do some safety changes inside of the building. They are not going to be demolishing the Simmons building. The Board discussed the original use of the Simmons building, the structure itself, and the use of the smaller buildings on the site, and the operation of the business with regard to traffic. Al Blumberg, Director of Planning for Site Solutions in Gaithersburg, presented a color rendering of the site plan and discussed the proximity of the nearest residential development to the site, stormwater management, underground transformers, location of the dumpster, location of the parking spaces on the site, repaving of the driveway, converting some of the buildings into 14 bays, landscaping plan for the site, location of the sign would be on the north side of the access drive, loading area, parking would be provided along the driveway coming in on both sides adjacent to Koons Ford and adjacent to the Simmons building. He noted the possibility of adding more parking spaces, if needed, to the middle of the open space on the site. The proposal is in conformance with the City’s Comprehensive-wide Master Plan, and the property is currently surrounded by automobile uses. Mr. Blumberg stated that the proposed special exception meets the standards for special exceptions in the Zoning Ordinance. Stephen Petersen, Traffic Consultant, presented the traffic analysis for this site. He said that the combined trip generation of the proposed uses is 27 trips in the morning peak hour and 46 in the evening peak hour after rounding up to the next whole number and without taking credit for trips that were generated by the site when it still in active use. Mr. Petersen stated that it is concluded that the trips projected to be generated by the special exception use fall well below the current threshold that would require a complete traffic study under the existing guidelines as set forth in the City’s Standard Traffic Methodology. The Board asked questions regarding whether these number of trips is consistent with the business plan for the site. Ms. Leatham explained that the Mr. Petersen’s analysis is probably a little high for what is actually going to occur on the site. The Board expressed concern about traffic generation from the site and the interaction with the traffic on the Pike and whether there would be any cause for test-drives. Mr. Hill stated that Conditions 4 and 5 should be removed because the applicant has provided the information. There being no one else to speak for or against the Special Exception application, the Chair declared the public hearing closed. DECISIONS Variance Application APP2004-00825, Reginald Miller Mr. Sternstein moved, seconded by Mr. Hill, that Variance Application APP2004-00825, Reginald Miller be deferred until the Board of Appeals’ July 10, 2004 meeting. The motion passed unanimously. Variance Application APP2004-00826, Saul Kravitz Mr. Sternstein moved, seconded by Mr. Hill, to approve Variance Application APP2004-00826, Saul Kravitz per staff recommendations and subject to the following reasons: 1) it is not contrary to the public interest in the very neighborhood from which the application comes, there have been similar variances in the past for carports and there were no objections registered from the community. The uniqueness of the property is that the change in elevation from the front to the rear of the property, and the need for providing a step downward from the rear of the structure, as proposed, would limit constructing a porch that would be longer in length, and warrants allowing a variance that would apply for a wider porch. This also dovetails with the practical difficulty that would be created by requiring the porch only four feet in width at an ingress and egress point as to where a six-foot would better accommodate access with children and elderly parents. Mr. Hill suggested one other condition that this application is being submitted as an open porch. Mr. Sternstein accepted the condition. The motion passed unanimously. Variance Application APP2004-00827, Joseph Dulany Mr. Sternstein moved, seconded by Mr. Hill, to approve Variance Application APP2004-00827, Joseph Dulany per staff recommendations and a condition stating that within three years of grant of this variance the applicant moves the existing curb cut in connection to the property to a position that aligns with the garage door on the proposed addition that is necessitating the variance. Mr. Sternstein added that part of the plans that includes a modified roofline and was submitted into the record as Exhibit 2, is to be included in the proposal as specified in the first condition of the variance. The motion passed unanimously. Mr. Hill stated that he voted aye with the comment that he does not support Condition 3 because he does not believe there is a practical need that the difficulty and expense of moving the driveway as a requirement of this particular construct, but he still voted in favor of the motion. De Minimis Revision for Variance Application APP2003-00801 Mr. Hill moved, seconded by Mr. Sternstein, to accept the change in plans and to modify the previously approved Variance Application APP2003-00801 about the porch roof that was represented by the applicant. Mr. Sternstein asked to amend the motion by stating that it is appropriate to ask the Board for its opinion on this modification, but it is not a significant change to what was presented to the Board in the original application and the change does not affect the findings of the original application. The amendment was accepted and the motion passed unanimously. Variance Application APP2003-00814, Stephen Beck Mr. Hill moved, seconded by Mr. Sternstein, to approve Variance Application APP2003-00814 per staff recommendations. While this is a significant 23-foot variance in a 25-foot setback, he looks at that as a circumstance of the historic nature of this property, and also the conspicuous position of this property in the City. The reconstruction that comes into that setback of the porch is a refurbishment of the historic appearance that he believes that the Historic District Commission will address. As a land issue for the Board, he finds the porch and the addition on the rear acceptable. The motion passed unanimously. Special Exception Application SPX2004-00340, Orteck International Mr. Hill moved, seconded by Mr. Schwartzman, to approve Special Exception Application SPX2004-00340, Orteck International as submitted by staff with modifications to the conditions in the staff report; drop Condition 4 about providing the location of the trash dumpster, which he believes has been done in representation in this hearing, also Condition 5 with regard to providing off-street space for loading and unloading of goods and materials. Add a condition 7 related to the recommendation by the Planning Commission that use of an outdoor intercom/loud speaker and/or public address system is not permitted in the operation of the applicant’s proposed business/special exception use. Mr. Schwartzman offered an amendment to the motion not to drop Condition 4 because part of the condition states that “along with the proposed screening enclosure”, which has not been shown to the Board. He suggested that the Board leave the proposed screening up to staff. Mr. Chasten stated that this would be rolled over to the use permit stage to ensure that that is going to be done. Mr. Deitchman stated that the staff be provided with the enclosure information for the dumpster. Mr. Hill amended that the Board would not entirely drop Condition 4, but to change the purpose of that condition to provide staff with the proposed screening enclosure of the dumpster. The motion passed unanimously. MINUTES Mr. Hill moved, seconded by Mr. Schwartzman to approve the minutes of Meeting No. 5-04 as amended. The motion passed unanimously. ADJOURN There being no further business to come before the Board, the Chair adjourned the meeting at 2:10 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. | 
