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City of Rockville Board of Appeals Mayor and Council Chambers The City of Rockville Board of Appeals convened in regular session in the Council Room, Rockville City Hall at 9:30 a.m., Saturday, April 10, 2010. | ||||||
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| Mr. Sternstein disclosed to the audience that he would be recusing himself from SPX2010-00381, Shelter Development, L.L.C. because an attorney in his law firm is representing the applicant. He turned the gavel over to Mr. Maravilla. PUBLIC HEARING Special Exception SPX2010-00381, Shelter Development, L.L.C. – for construction of a 90-unit assisted living facility in the R-90 Zone at 9200 Darnestown Road. Mr. Maravilla stated that there has been a request from the opposition of the application to continue the hearing to a later date. He asked who would speak for the opposition of this case. Richard Klein, President of Community and Environmental Defense Services, testified that he is assisting Glenora Hills residents with their concerns about the project. He said the residents retained Norman Knopf as their attorney. In response to Mr. Maravilla, Mr. Klein explained that Mr. Knopf had some conflicts with time and would be available for an April 24 meeting with the Board. Mr. Chasten explained that Mr. Knopf sent a letter to the Board and staff explaining his situation. Russell Richards, 2288 Glenmore Terrace, explained that, given the time and circumstances, Mr. Knopf would not be available today. Mr. Richards explained that the residents hired Mr. Klein to research all their concerns that would be contingent on the proposed development. In response to Mr. Maravilla, Mr. Richards stated that the residents are in the process to resolve all of their issues and concerns and they are coming close to an agreement with the applicant. This is why it would be very helpful to begin the process today so that the witnesses with the applicant may bring to the table the number of witnesses who would be available at a later date. Nancy Regelin, Attorney with Shulman, Rogers, representing the applicant, stated that they did file an opposition to the postponement, but after some amicable discussions with Mr. Knopf, who represents one or more of the citizens of Glenora Hills and who was just retained on Monday, found that he had other obligations and could not appear today. However, Mr. Knopf understood their objection in that it would be prejudicial to the applicant because they have all of their consultants available today to do the presentation and they have conflicts with one or more of them for May 8, which is the Board’s next meeting date. Ms. Regelin stated that they would like to look at optional dates to continue the case, other than May 8, which is at the discretion of the Board. Ms. Regelin also stated that what they proposed is that the applicant would commence the case, after which, they would provide Mr. Knopf an opportunity to cross-examine their witnesses. The Board and Ms. Regelin discussed optional dates on which the consultants could be present. Ms. Regelin stated that all consultants could be present on April 24 with the exception of the planner. The Board could begin the hearing today and carry over to the April 24 meeting or May 8 meeting. She noted that she was informed that there would only be two members of the Board available for the April 24 meeting. Mr. Gegan presented his comments regarding the application. Mr. Gegan pointed out that there is one or more structures on this property that are over 50 years old and he is not satisfied with the level of historic district analysis that has been done with regard to those structures. He noted that there is nothing in the record that indicates that the Historic District Commission (HDC) has reviewed these structures. If they did review these structures, he believes they should be re-evaluated. Mr. Gegan stated that he has read the Arc History analysis of the property and there has been a thorough comprehensive research done on the finance and land transactions regarding this property. The report concludes that there is no historical significance to this property. Mr. Gegan noted that the report stated that six people owned part of the property or owned an aggregate portion of the property and all of them had been prominent in Rockville, Montgomery County and the State of Maryland. In addition, roads have been named after these people in the City of Rockville. Mr. Gegan announced that before demolishing history, he would like the HDC to re-evaluate those structures before something is built on this property. He noted that the Mayor and Council and the HDC could, on their own volition, initiate proceedings to declare this a historic structure or a historic district. Mr. Gegan mentioned a number of other historical structures in Rockville and compared them to the subject property. He stated that, in his opinion, those historic properties pale in significance to 9200 Darnestown Road, simply because of the prominence of the individuals and their effect on the society in Rockville. Mr. Gegan stated that, if the HDC reviewed this property and recommended historic designation to the Mayor and Council, or the Mayor and Council, on their own volition, would designate the property historic, anything the Board does now to proceed, would muddy the water, terribly. In addition, if the Board were to grant a special exception and then the Mayor and Council designates this structure historic, four parties (the applicant, the opposition, the Mayor and Council, and the Board of Appeals) would end up in Court. Mr. Gegan stated that he would like to make a motion to move for immediate continuance of the Board of Appeal’s action on this case, if applicable, until after the HDC review and consideration, or if applicable, Mayor and Council action. Mr. Maravilla recommended hearing from the applicant’s response and then the Board could move into worksession, after which a motion could then be made. Ms. Regelin stated that the information could be entered into the record, but should not prevent the applicant from commencing with this case. Also, the record could remain open and take Mr. Gegan’s statement into consideration. Per the Zoning Ordinance, the HDC review would occur at the time of a Demolition Permit and could be addressed at the site plan approval stage. Ms. Regelin asked that this not be a pre-condition to the filing of a special exception, which would set the tone when it is only one element of information that would be taken into the record. She stated that there has already been an Arc History review of this site a year and a half ago regarding whether this structure had historic significance, and it was found that the structure did not meet 8 of the 9 criteria. The house is 40-50 years old and is a more recent vintage constructed by the party, who presently lives in the house. Mr. Gegan corrected Ms. Regelin and noted that the structure is actually 63 years old and his criticism of the Arc History Report is that it does meet about 4 or 5 of the criteria for historic designation. Mr. Gegan further explained the problem that would be created, if the Board were to grant a special exception and the Mayor and Council were to designate the structure historic. He further explained that this HDC review would push this application back approximately two months. Ms. Regelin replied that she does believe it is prejudicial to the applicant; it is unusual and makes him feel uncomfortable how this process is proceeding in that one of the Board members is conditioning the hearing on such a statement considering the Board member’s current position is on the subject structure. Mr. Gegan replied that anyone who has read the Arc History Report and knows anything about Rockville, would have their eyes wide open when they saw all the names associated with the subject structure. Ms. Regelin replied that it does not mean that those names relate to the fact whether a particular property and a particular house meets the criteria, and there was a review done of this property and she is not there to argue the Arc History Report for that could be raised by the citizens during the public hearing. She stressed that it does make her uncomfortable that they are having this discussion before the hearing. Ms. Regelin further discussed the time it would take for a HDC review to re-schedule another public hearing. The Board and the applicant discussed the question of prejudice in this situation and how it affects the applicant, opponents, and meeting schedules. Russell Richards, 2288 Glenmore Terrace, stated that they did look at the Arc History Report and whether they agree with it or not; it is worth looking into and they would support the motion to allow them additional time to address other concerns that may considered in regards to the property. Mr. Richards stated that a decision needs to be decided whether there is historic significance to the property. Ms. Regelin stated that her client would like to withdraw his objection to having the hearing commence immediately. After discussing the application in worksession, Mr. Mork moved, seconded by Mr. Gegan, to continue the public hearing on Special Exception SPX2010-00381, Shelter Development, LLC to the Board of Appeal’s May 8, 2010 meeting. The motion passed on a vote of 3-0. On a second motion, Mr. Gegan moved, seconded by Mr. Mork, in reference to Special Exception SPX2010-00381, Shelter Development, LLC to instruct staff to ask the Historic District Commission to consider historic evaluation of the property of the property at 9200 Darnestown Road by June 12, 2010. The motion passed on a vote of 2-1 with Mr. Mork voting nay. The gavel was handed back to Mr. Sternstein and Mr. Gegan excused himself from the remainder of the meeting. Special Exception SPX2002-00312, Sonic Automotive, Inc. – for a show cause hearing and determination as to whether a condition of approval has been violated. Jody Kline, Attorney with Miller, Miller & Canby, stated that he is representing the applicant and asked for courtesy on behalf of a witness, who was not able to attend the March 17, 2010 meeting to make a presentation. Mr. Kline stated that the witness’s name is Karen Voight, who is the President of Village Green Condominium Association. He noted that he has no objection to her speaking this morning. Karen Voight, President of Village Green Condominium Association, testified that Mr. Earl Kendrick, President of Woodmont Spring Condominium, Inc., who was present at the March 17, 2010 meeting, gave her a summary of the hearing. Ms. Voight stated that her view of what was happening on Talbott Street was not correct. Ms. Voight explained that the point about the screening was not whether someone could see Sonic Automotive from each of his or her properties; it was from the entire street. She noted that they wanted those trees there to separate Sonic Automotive from their view. She stated that there are 150 residents living on Talbott Street and all of them are affected, not just the residents living in Village Green. She said she found it very disheartening to see what has happened to those beautiful trees and now they are not beautiful; they have been trimmed beyond repair. Ms. Voight said she feels that they have caused a disastrous affect on the neighborhood. She inquired whether the Board was leaning toward not having the applicant replace those ruined trees. She pointed out another issue regarding Wayne Noll, City Forester, and referred to his knowledge and commitment to the City. Ms. Voight stated that Mr. Noll informed her that the trees that were so poorly trimmed would eventually die. She asked that the Board ask the applicant to replace these trees and put their street back to the condition it was before this occurred. In response to Mr. Kline, Mr. Sternstein explained that an enforcement action properly initiated by the City Forester, has eventually developed into a show cause hearing before the Board of Appeals. Mr. Sternstein further explained the enforcement issue and whether Condition 3 has been violated. He noted that one of the issues before the Board is whether the applicant has complied with the City’s Forest Conservation Plan requirements because that is a condition of the special exception. In response to questions from Mr. Sternstein, Elise Cary, Assistant City Forester, pointed out that there is no warranty on the applicant’s maintenance agreement with the City. There is a recorded Forest Conservation Plan for the Leland Cyprus trees and those were the trees the City feels were pruned in violation of the Forest Conservation Plan. This violation occurred while the maintenance agreement was still valid. Mr. Sternstein stated that there is a violation of the Forest Conservation Plan as well as the maintenance agreement. The question is – how could this be remedied. Mr. Sternstein pointed out that the quandary he has is that this unfortunate situation did not seem to be done intentionally. It is going to be costly to remedy the problem and there is a dispute in the record as to what needs to be done. Mr. Sternstein stated that he is leaning toward requiring the applicant to plant shrubbery in between the pruned trees to require the applicant to make it clear that they are agreeing that all time deadlines be in compliance with both the maintenance agreement and the Forest Conservation Plan. The Board and staff discussed the Condition 3 in the January 17, 2003 letter of approval, and what the applicant must do to show cause that that stipulation has not been violated, planting of shrubs in the Forest Conservation easement for they would do more damage to those trees, and the remedy for maintaining the Special Exception. The Assistant City Forester’s recommendation to the applicant was to replace all of the damaged trees. The Board felt that the applicant would replace trees as needed. Mr. Kline stated that he would agree with the Board’s decision to replace the trees as needed. Discussion ensued with Mr. Kline, the applicant, and the City Forester regarding replacement of the trees that were damaged. Mr. Mork moved, seconded by Mr. Maravilla, that Sonic Automotive, Inc. was in violation of the Conditions 1 and 3 of the original Special Exception SPX2002-00312. The motion passed on a vote of 3-0. On a second motion, Mr. Mork moved, seconded by Mr. Maravilla that in order for Sonic Automotive, Inc. to keep their use permit, they must replace the 10 Leland Cyprus trees indicated by the City Forester by the end of this growing season, namely, May 31, 2010, and the trees must meet the City’s height requirements. Furthermore, should any of the remaining holly trees fall below 80 percent live growth, as is the City standard metric for determining whether or not a tree is considered fully alive. In perpetuity, any holly tree that falls below the 80 percent must be replaced using the standard maintenance agreement. The motion passed on a vote of 3-0. Mr. Sternstein stated that he would have gone further regarding what he would allow the applicant to do. In response to Ms. Walters, Assistant City Attorney regarding the violation fine, Mr. Sternstein stated that the $1000 is not forced and is an issue between the City and the applicant at this point. Variance VAR2010-00010, Sidney and Karen Mollard – for a variance of three feet from the side yard setback requirement of 11 feet to construct a screened porch in the R-90 Zone at 610 Warfield Drive. An Affidavit of Posting was submitted into the record as Exhibit 1. Ms. Karen Mollard presented her request for a fourteen-foot wide by twenty-foot deep screen porch addition attached to the rear of the existing sunroom and the main house. Ms. Mollard explained that the screened porch retains most of the setback required in the zone and there would only be small portions of the addition visible to the public. The addition is mostly placed behind, and not adjacent to the neighboring house. Ms. Mollard submitted into the record a letter from Mr. Jacobs, her next-door neighbor, who does not object to the proposal and would be most affected by the screened porch, as Exhibit 2. Therefore, the variance would not be contrary to the public interest. Ms. Mollard stated that they did consider other locations for the porch, but by locating the porch at the rear of the house would maximize the use of the backyard and maintain the natural circulation of the interior rooms of the house and preserve some beautiful, mature trees and other existing vegetation. This would also preserve the existing deck structure as it is aesthetically acceptable and a soundly built, well-maintained structure, which also allows further utilization of the backyard and poses no curtailment of natural sunlight filtering into the common areas of the home. Ms. Mollard explained that not granting the variance would result in practical difficulty because the width of the porch would allow her husband, who had a stroke, to walk around on the porch, safely, as special handrails would be installed for his use without concern over the element or bugs. He would be able to enjoy the foliage and landscaping in an interactive manner, which, up to now, has been impossible. Ms. Mollard stated that the proposal complies with the Zoning Ordinance in all respects, except for the setbacks. Ms. Mollard stated that she requested a three-foot side yard setback variance, which amounts to about 27 percent of the minimum eleven feet required in the zone. In this case, she and her husband live in a single story home located next to a single story portion of a two-story home. The bulk of the proposed encroachment is also not located immediately adjacent to the house on the neighboring property. In this particular location, due to the scale of the homes and the porch proposed, is an eight-foot setback for a twenty-foot span in order to allow for a somewhat open structure like the proposed screened porch, which would not be inconsistent with the purposes of the Zoning Ordinance. In response to Mr. Sternstein regarding the easement beyond the existing wall extended, Ms. Mollard explained that the doorways coming from the sunroom are very wide and they swing out and so the extension gives a bit more room when entertaining a large gathering and the need to spread out. Ms. Mollard noted that they have a very large family and they need a large space to visit. There being no one else to speak for or against the variance application, the Chair declared the public hearing closed. Special Exception SPX2010-00382, Eugene Melanson – a request to formally establish a one-bedroom accessory apartment on the basement level of the dwelling located at 825 Duke Street, in the R-90 (Single Unit Detached, Restricted Residential) Zone. This public hearing was continued from the March 27, 2010 meeting. An Affidavit of Posting was submitted into the record as Exhibit 1. Mr. Melanson presented his request. He stated that he owns and lives in the home and has one vehicle. The accessory apartment does have a separate entrance at the rear of his home and it is not visible from the front. Mr. Melanson stated that the accessory apartment would have the same address as the main dwelling. He said he conducted two public meetings and sent an invitation letter to residents within the required 750 feet of his home. The attendance at the first public meeting was approximately 25-30 people. The attendance at the second public meeting was four people. He said he described his plans at both meetings and listened to the concerns. Mr. Melanson said that the biggest concern was that the property value of all the residents in the community would decrease if he rented his basement. He checked with a real estate agent at Long & Foster and it was her professional opinion that it was the type of tenant that was more of a factor than having a rental unit. He assured the people at both meetings that he would be living in his home 100 percent of the time and he plans on doing a background check and a credit check and closely monitor the activity of the tenant(s). As soon as he noticed any illegal activity, he would take the appropriate action and he assured the group, as a retired police officer, he would not stand for any illegal activity in his home, or in the community. Mr. Melanson stated that another concern was the traffic. He explained that he has plenty of space for parking for several vehicles and he believed that one or two more vehicles would not have a major impact on the community. Another concern is that the tenants would not care for the community or care about the community as well as homeowners; therefore, he assured the group at both meetings that he would encourage his tenants to become part of the community and care for the community. In summary, he understands that there are those in the community who are opposed to his proposal and did not attend his meetings. Mr. Melanson stated that those people who attended his public meetings were opposed at first until he presented his proposal. Mr. Sternstein noted that staff recommends approval of the waiver requested from the APFO requirements because it is only one unit and would not adversely affect the schools in the community. Mr. Chasten explained the standards to the applicant. There being no one else to speak for or against the special exception application, the Chair declared the public hearing closed. Special Exception SPX2009-00377, Christ Episcopal Church & School – a request to modify certain conditions of approval as imposed by the Board of Appeals in its grant of Special Exception SPX2004-00347 and approval to install a new outdoor play area. An Affidavit of Posting was submitted into the record as Exhibit 1. Ms. Soo Le-Cho, Attorney with Miller, Miller, and Canby, testified that she is representing the applicant. Ms. Le-Cho stated that this special exception was approved in 2004 for a church school expansion by way of occupying the existing office building located at 22 West Jefferson Street. She stated that there were a number of conditions related to the original application that had some trigger dates that have since come and gone. They are now requesting to modify those conditions. The language of those conditions have been distributed to the Board this morning. Ms. Le-Cho gave a background explanation on those conditions. Condition 2 regarding the conversion of the West Jefferson driveway to a one-way drive by September 2008 in anticipation of the School’s expansion efforts; Condition 3 regarding an inlet repair and the upgrade of the driveway apron at 22 West Jefferson Street must be modified because in the last two years there has been a significant drop in enrollment in the School, which is below the original enrollment in 2004. Ms. Le-Cho stated that the current enrollment is 166 from 239 in 2004. Ms. Le-Cho addressed Condition 4 regarding traffic mitigation payment, which has gone unpaid. Ms. Le-Cho explained that the office tenants still remain at 22 West Jefferson Street and the concern about the mixing of traffic still remains. Therefore, due to financial difficulties, the school is requesting modification of those conditions as well as an additional play area . The play area is located on the south side of the parking lot adjacent to the stormwater facility. Ms. Le-Cho presented photographs of the existing play area. She explained that the School’s plan to revamp its enrollment is to create a new play area and resurfacing the basketball court. Ms. Le-Cho also presented drawings of the new play equipment. She also noted that the former residence located at 119½ South Washington Street and serves pre-school aged children is in need of a sign to be placed on the property facing South Washington Street. She presented a preliminary sketch and dimensions of the proposed sign. The Board and staff discussed the proposed sign and felt that the proposal should come back to the Board as an amendment to allow more time to inform the neighbors about the sign. Ms. Le-Cho presented the revised language for Conditions 3 and 4. There is one additional question about Condition 5 regarding the occupancy permits for the floor space that the School now occupies within the 22 West Jefferson Street building. The School would like to close out the former occupancy permit and finalize the original occupancy permit already on record. Ms. Le-Cho also addressed Condition 4 in terms of the traffic mitigation. She explained that the School is not able to pay the money now. Ms. Carol Shabe, Head of School, explained that the School has been hard hit due to the economical situation and it is very difficult for smaller schools to move forward, but with the Board’s understanding and support, it will help them to rebuild the school, economically. Ms. Le-Cho noted that they did have an area meeting and no one attended. There being no one else to speak for or against the special exception application, the Chair declared the public hearing closed. DECISION Variance VAR2010-00010, Sidney and Karen Mollard Mr. Maravilla moved, seconded by Mr. Mork to approve Variance VAR2010-00010, Sidney and Karen Mollard per staff recommendations. The motion passed on a vote of 3-0. Special Exception SPX2010-00382, Eugene Melanson Mr. Mork moved, seconded by Mr. Maravilla to grant the waiver full compliance with the Adequate Public Facilities Ordinance (APFO) provisions because the Board finds that there would be minimal adverse impact resulting from the waiver because there would be, at most, two school age children introduced into community. The motion passed on a vote of 3-0. On a second motion, Mr. Mork moved, seconded by Mr. Maravilla to approve Special Exception SPX2010-00382, Eugene Melanson per staff recommendations. The motion passed on a vote of 3-0. Special Exception SPX2009-00377, Christ Episcopal Church & School Mr. Mork moved, seconded by Mr. Maravilla to approve Special Exception SPX2009-00377, Christ Episcopal Church & School per staff recommendations with the revision of Conditions 3, 4, and 5 in the staff report that replaced Conditions 6, 7 and 11 in the original staff report. Mr. Mork pointed out that Condition 5 is to be amended to allow the applicant to obtain a new occupancy permit or to finalize an outstanding occupancy permit. The motion passed on a vote of 3-0. NEW BUSINESS The Board discussed procedures for new members to the Board. The Board was introduced to a potential new member to the Board. OLD BUSINESS The Board and staff discussed the Victory Court matter. MINUTES Mr. Mork moved, seconded by Mr. Maravilla, to approve the minutes of Meeting No 1-2010 as submitted. The motion passed on a vote of 3-0. ADJOURN There being no further business to come before the Board, the Chair adjourned the meeting at 1:48 p.m. | ||||||