HomeMy Public PortalAboutZBAP 2009 06-01
Town of Fraser Zoning Board of Adjustment
Meeting Agenda
Town Hall, 153 Fraser Ave
Monday, June 1st 2009
6:30 p.m.
1. Roll Call
2. Approval of January 25th, 2008 minutes
3. Public Hearings and Action Items
a. Front yard setback and side yard setback variance request
submitted by Andy Miller.
The encroachment into the front yard is approximately 6 feet and the
encroachment into the side yard is approximately 1.5 feet.
The subject property is more legally described as follows:
Lot 13-14, Block 4, Town of Eastom AKA Town of Fraser.
b. Front yard setback and side yard setback variance request
submitted by Tim and Karen Givens.
The encroachments into the front yard are approximately 1.88’ (1’ 10 ½”)
to a maximum of 7.29’ (7 ft 3 ½”). The encroachments into the side yard
are approximately .11’ (1 3/8”) to a maximum of .73’ (8 ¾”).
The subject property is more legally described as follows: Lot 10, Block N,
Victoria Village.
4. Adjournment
_______________________ Posted May 26, 2009
Lu Berger, Town Clerk
FRASER ZONING BOARD OF ADJUSTMENT
MINUTES
DATE: Wednesday, January 25, 2008
PLACE: Town Hall Board Room
PRESENT
Board: Chairperson Debbie Knutson and Members: Karen Frye,
Jim Holahan, and Steve Sumrall
Staff: Town Planner Catherine Trotter
Others: Rosemary Trotter
Chair Knutson called the meeting to order at 8:45 a.m.
Action Item
a. Approval of minutes from January 16, 2008.
The Board wanted the minutes to reflect that Doug Laraby had stated that he is
a resident of Cozens Meadow and does not object to this variance request. In
addition, letters (not of approval) were received from 2 utility providers (not
several).
Mr. Sumrall moved, and Mr. Holahan seconded the motion to approve the amended minutes
from January 16th, 2008. Motion carried: 4-0.
Planner Trotter asked that each member of the ZBA take home the CIRSA Video/CD entitled
“In the Scope of your Authority: Preventing Public Official Liability” and watch it. The Board
agreed to this.
Chair Knutson asked for items not on the agenda. There were none.
Mr. Sumrall moved, and Mr. Holahan seconded the motion to adjourn. Motion
carried: 4-0, Meeting adjourned at 8:55 a.m.
________________________________________
Catherine Trotter, Town Planner
Briefing for ZBA June 1st, 2009
Andy Miller Variance Request:
Andy Miller is requesting a variance from the front yard setback and side yard setback
requirements on his property located at 267 Mill Avenue. Please see the applicant’s
memo in the packet. Exhibit F, the land use application is not included in the packet.
The property is located in the Business Zone and as such an all residential structure in
the Business Zone must meet the following setbacks: 20’ in the front, 7’ in the side, and
10” in the rear. The Town of Fraser adopted zoning regulations in 1974 after the
structure was constructed. See documentation in packet.
The Fraser Town Code specifies that the Board of Adjustment shall furnish a copy of the
application to the Board of Trustees for an opinion, which opinion shall be returned to the
Board of Adjustment before the date set for the hearing. The following action took place
at the Town Board meeting on May 20th, 2009:
“…………………. seconded the motion that pursuant to the variance provisions
of the zoning ordinance, that we forward the following opinion regarding the
variance request for 267 Mill Avenue: that the variance request be approved by
the Zoning Board of Adjustment. Motion carried: 7-0.
Givens Variance Request:
Tim and Karen Givens (the applicant) are requesting a variance from the front yard
setback and the side yard setback requirement on their property located at 606 and 608
Quail Drive. Please see the applicant’s memo in the packet.
The property is located in the R2 Zone and must meet the following setbacks: 20’ in the
front, 7’ in the side, and 10” in the rear.
The Fraser Town Code specifies that the Board of Adjustment shall furnish a copy of the
application to the Board of Trustees for an opinion, which opinion shall be returned to the
Board of Adjustment before the date set for the hearing. The following action took place
at the Town Board meeting on May 20th, 2009:
“………………….. seconded the motion that pursuant to the variance provisions
of the zoning ordinance, that we forward the following opinion regarding the
variance request for 606 & 608 Quail Drive; that the variance request be
approved by the Zoning Board of Adjustment. Motion carried: 7-0.
Please see Article 12 of the Fraser Town Code for details on the Board of
Adjustment. Please contact me with comments and/or questions.
Town of Fraser
PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518
www.frasercolorado.com
Dear Neighbor of 267 Mill Ave, Fraser Colorado,
This letter is to advise you that Andrew Miller has requested a variance in the front and side yard
setback for the existing home located at 267 Mill Ave. and that the Town of Fraser Board of
Adjustment has scheduled a public hearing to consider this request for June 1 at 6:30 at the
Fraser Town Hall located at 153 Fraser Ave. in the Board Room.
Enclosed for your review is a copy of the proposal as presented to the Town of Fraser, beginning
with the narrative description of the proposal. Following the description you will find these
exhibits: A. A 1998 survey, showing the correct side yard setback, B. The current April 2009
survey. C. Signed letter from Leroy Morrow, giving the year of the front addition to home. D.
Site plan for proposed north addition to home. E. Elevation sketch (east) with proposed addition.
F. Fraser Land Use Application Form, variance request application. G. Grand County Board of
Commissioners Resolution 1971-1-10, Jan. 18, 1971, hiring Grand County's first building
inspector, establishing the county's first building review process. Additional application
materials are on file at the Town Hall offices. The Town of Fraser may be contacted at 970-726-
5491 for further information. I may be contacted at 970-726-4099.
Please note you may comment at the public hearing or by forwarding written comments to the
Town of Fraser Planning Department, Box 370, Fraser, CO 80442. Written comments must be
received by the Town prior to the public hearing.
Sincerely,
Andrew Miller
267 Mill Ave, Box 145
Fraser, CO 80442
Narrative attachment, Brief Description of Development:
The south, front, wall of my home at 267 Mill Ave. in Fraser was set at 14 feet from the
front property line when it was constructed by Leroy Morrow in 1967. The side yard (west side)
of my home is set at 5.7 feet from the west lot line, this wall setback was established when the
original home was constructed in 1909. Fraser requires a 20 foot front yard setback, and a seven
foot side yard setback according to Ordinance 16-4-250. At the time of construction, the town did
not have any building regulations. In addition, the town (and Grand County in general) did not
require building permits for any projects until 1971. Grand County did not have a building
department in 1967. A signed letter from Leroy Morrow is attached testifying as to when he
constructed the addition. A copy of the Grand County Board of Commissioners Resolution is
attached showing building regulations and a building department were established in 1971.
The side yard incursion is a bit more complicated. The center portion of the house, where
the side yard setback was established, dates to 1909 - its builder is deceased. Surveys done by
Jim Ward in 1998 show a seven foot setback to this lot line. Warren Ward performed a detailed
survey in April, 2009, determining this setback was actually 5.7 feet. Warren Ward informed me
there are generally problems with the surveys in the old town of Eastom plats. He is confident the
current survey is accurate, and has set monuments. A copy of the current and 1998 surveys are
attached.
According to the Fraser Town Code, Article 12, Section 16-12-20 Grant of Variances the
following standards must be met in order for a variance to be granted:
1) The existing home does not encroach on any public road or travel way. It does not
compromise the welfare of the public. Notices were sent to neighbors as per town code, and I did
hand carry my plans and proposals to neighbors to discuss this project. All reacted positively, all
are also - of course - being notified by letter as required by the town.
2) This variance will not allow any uses which are not allowed in the Business zone.
3) If the setbacks were to be observed, two walls of the home would have to be demolished and a
large section of the living room and parts of all three bedrooms would have to be removed. The
homes only shower would have to be removed. It would be more economical to demolish the
house, which is not a course I wish to pursue as the existing house is in good condition.
4) As explained above in the first paragraph, encroachments into the setbacks date to 1909 and
1967 - well before town zoning regulations were approved.
5) The existing single story home will not prevent proper solar access nor will it injure the value
of neighboring properties.
6) The existing use is not out of harmony with the intent and purpose of the town code.
Note, some confusion may be present because my home is on a corner lot, and the front
entrance of my home faces on Doc Suzie. Town ordinance 16-1-40, definitions states "Lot line,
front means the property line dividing a lot from a street. On a corner lot, only one (1) street line
shall be considered a front line, and the shorter street frontage will be considered the front line."
Note on my plat map, the short lot line is on Mill Ave., which is also my street address (267 Mill
Ave.).
I am seeking a variance in order to qualify to begin the application process to add a
second unit to my home. I will seek approval to subdivide and sell the two residences as separate
units. The footprint of the original house will not change (the north stall of the existing two stall
garage will be incorporated into the new unit, it's footprint will increase in size), no further
incursion into the front, side or rear yard set backs are or will be requested. The second unit will
be added to the back, north, side of the house. This new unit will not encroach into any town
required setback. A west elevation of this proposed building is also attached, as is a proposed site
plan. This is not an application for this proposed project, but is rather only a request for a
variance in the current placement of the house. The future project drawings are given as
information only, it will be given in full form during the subdivision application process which
will only occur if the variance is granted.
Exhibits attached are these:
A Survey done when house was purchased, dated July 27, 1998 showing side yard setback is 7
feet.
B. Survey done in April, 2009, showing side yard setback at 5.7 feet and front yard setback at 14
feet.
C. Signed letter from Leroy Morrow showing date of addition (toward Mill Ave., front yard) as
1967.
D. Proposed site plan.
E. East elevation of existing home with addition.
F. Copy of Fraser Land use Application Form, for variance.
G. Grand County Board of Commissioners Resolution 1971-1-10, Jan. 18, 1971, hiring Grand
County's first building inspector, establishing the county's first building review process.
Thank you for considering this variance application. Please contact me if you have any questions.
Andrew Miller 267 Mill Ave., Box 145, Fraser, CO 80442
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Apr. 20, 2009
I owned the home at 267 Mill Ave. in Fraser from 1957 through 1974. In 1967 I added a room to
the front (south) side of the house, bringing that wall of the home about 12 feet closer to Mill
Ave. Because no building permits or town approval was required for building projects in 1967,
no permit was obtained.
Signed
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Proceedings of the Board of County Commissioners .......................day-
I
continuer -
Ie3l1
-- ....- ................Term, 19.-. ............................ ......... -.19
Lincoln's 3i'thday- Friday Febraary 12, lg71
.'ashins`.on' a Girth,. ,ay- tihnday, s ebruar- 15,
Memorial day- Nnnday, ;gay 31,
Independence d. -- Sunday, Su I7 L,
Golorado day, Mondzy:'; , �lUr-ust 2 ,
Labor day, Monday, Septerber 6,
Columbus day, Ptor_day, Oct 11,
Veteran's r.:ay, Monday, Oct, 25,
Thanksgiving day, Th— sday, Nov, 25,
Christmas day, Baturday, Dec, 25, -one half day prior to Christmas ray.
Nev Years ray, Saturday. .Tan, 1, - one half day prior to 7•'e.-. Yews day, and if a Holiday £aZls on Strn
a Sunday, the Monday thereafter shall be observed.
RLSOLUTION NO. 1971-1- 7.
Upon :ration duly made, seconded and unanimously carried, it was:
RESCUTED, that the �Iiedle Park Times , Krctrmlin�,Celerado be approved as the Official County
Ne�rspcper for the year 1971.
RF -SOLUTION NO. 1971-1-8.
❑non motion duly made, seconded and unanimously carried, it was: Anti -freeze, 1.23 in barrelsi.
KOLVED , that the Stannard Oil Co. being the lotaest birder on Regular Gasoline ,14.67OFer gel. &/
Sack Malone, Sinclair Station, beir._. the lo,, -est bidder on Diesel No.l - 14.51 ¢ per Pal. 19o.2.
Diesel,01-1, 13.51 ¢ per Fal.
FySCLUTION NC. 1971-1- 9.
Upon motion duly made, seconded and unanimously carried , it was:
PDSOL77D , that the Official Depositaries of Grand Cannty be The Banc of Kremmling, and the
2,sddle Park Bank of Granby, Colorado .
Since there v=as no further business to core before the Board the meeting was adjourned.
7
County Clerk & Pecorder
Approved,Chairman.
SPECIAL MESTING
Sanuary 18, 1971
The Hoard of County Commissioners mf Grand County, Coloredo, met this %bnday, January 18,1971
in a Special meeting at 2:00 o'clock P.M. at the Court House in Hot Sulphur Springs, with the
follotiing members present: Janes A. Murphy, Chairman, Dark B. Curry ani Glenn Sherigf;' Commissioners, Il
Laura Cochran, County Clerk and Recorder.
The Purpose of the meeting was to r.ev_ecr all applications received for the position of
Building Inspector to work with the Grand County Regional Planning CoLmission,
RESOLUTION NC.1°71-1 -10
Upon !notion duly made, seconded and unanimously carried , it was:
FESOLI=, that Frank L. Dornan, Llideaumy Park, Colorado , be appointed to the position of
Building Inspector,with Cffice in Coutty Court House.
RFS%LUTION NO. 1971-1-11
Upon motion duly made, seconded: and unanirously carried. it was:
RDSpL -,r, that the A.oulance mileage fee be increased 56, per mile as of January 18, 1971.
There being no further business to come before the Board the meeting •gas adjourned.
A'_"TEST:' < ✓l:-ca_L4 - Aoorobed,
County Clerk & Recorder Chairman, /
Proczedings of tiie Board of Coanty Commissioners- G6 day Feor} ary
1161
..............Term, 1.- 7 1 -- ----------------------------1y
OVT!�[sT PnTC.. �rnrx�:A..40 LQIIxno yr¢SY c9_-i1�I169 -
f
296`''8
Howard C. Whaley
suprlies for assessor
32,8 5
2989
Granby laundry & Cleaners
's
laundry
S.CC
20rj0
PeteMobil Service
inspection sticker
1,30
-991
Continehtal Ci' Co.
ggascline
19-30
-92
G & H Equipment
supplies
6-2_20
20113
Pacheco & San's Texaco
gasoline
4.50
29 4
U. S. 'a - J. ng
suppl=es
1.C3
29G5
Duane Da; ley
expenses
3.55 3.55
2996
Harold A. D.iley
expenses
15,91
2997
McPeck Motor Coach Co_
supclies
45,95
29%
Pykkens Standard Service
ambulance storage
45.00
2999
The Tr-.velers Insurance Co,
premiums
5.60
3000
Sky -Hi mews
office supplies
30, GO
3001
Sky -Hi Neljs
office supplies & ads.& Printing
526.o4
3002
Sky -Hi News
supplies & publishing
465.62
3003
3M Eusiness Products Sales, Inc,
supplies
82.60
3004
.Ion K Mulford
expenses
58.48
3CC5
Son K Mulford
Professional services
86,50
3006
Zerox Corporation
Machine installation
16.00
300'7
Carl F. Fischer, County Treasurer
Postage
34.56
3008
Carl F. Tischer, County Treasurer
Postage
6.00
3009
Carl F. Fischer, County Treasurer
Postage
68.40
3010
Carl F. Fischer, County Treasurer
Postage
152.00
3011
Carl F. Fischer, County Treasurer
Postage
12,00
3012
Girl F. Fischer, County Treasurer
expenses ( Robert W. Brown)
1C.00
3013
Carl F. Fischer, County Treasurer
expenses ( Leon L. Clift)
60.00
3014
Carl F. Fischer, County Treasurer
Mountain Bell Telephone
506.04
3015
Colonail Life & Accident Ins. Co.
Premiums
33 -SC
3)16
Banker':; Life g. Casualty Co.
Premiums
32,95
3017
north F. Shrimnton
expenses
67.32
3018
Mtn, Parks Electric, Inc.
service
110.90
3017
H. R_ Morrison
expenses
".6.35
3020
International Conference of Bldg. Off,
membership
5C.00
3021American
Linen Supply Co,
laundry
2,98
3022
J. S. Battle Uniform Cc.
shirts
401.40
3023
Middle Park Hospital
service (Elmer Devore)
17.50
3024
Grand Co. San. Land sill & Trash Rem.
dump (granby)
150.00
3025
R. M. Teegarden, DVM
Travel Expenses
84.75
3026
County Extension Office
Office Expenses
63.01
3027
Ernest G_ Ceriani, M.D.
Office Pent
82.50
3028
Funk -ler Sales
Labor & parts
39.57
3029
Standard Oil Co,
gasoline
186.64
3030
Jameson Chevrolet Co,
Lacor & parts
22_80
3037
Carl F. Fischer, County Treasurer
Federal With holding
1374.54
3032
Carl F. Fischer, County Treasurer
O.A,S.I.
1373.18
3033
Carl F. Fischer, County Treasurer
Colo. With holding
261.07
50;4
Gar: F. Fische^, County Treasurer
Retirement
359.32
9,091.05
The bids for suppling coal for the 'Tabernash Shop were opened and examined. There being
only one bid, McAdow from Kremmling at $16.50 per ton, it was dec'_ded by a motion made,
seconded and unanimously approved to have the County Road Crew haul the needed coal. The
MCAdow bid was not accepted.
At the meeting of the Board of Commissioners of Gr'.nd County held February 26, 19,7 at the
Courthouse in Hat Sulphur Springs the fallowing Resolutions were moved, seconded and
unanimcusl�, adopted:
RESOLUTION NO. 1971-2-6
RESOLVED that whereas a certification ha. bean received from the
Grand County Regional Planning Commission relating to the adoption
of a Building Code covering all zoned areas of the unincorporated area of
Grand County, now therefore the Counter Clerk is diredted to publish
Notice of a Hearing to be hell Monday, April 5, 1971 at the hour of
10-30 o'clock a.m. upon the adoption of the Uniform Building Code, 1970
=di.tioa, published by the International Conference of building Officials
in the Sky Hi News for four consecutive weeks, as required by Colorado
Revised Statutes Section 36-15-2.
RESOLUTION NO. 1971-2-7
RESOLVED to approve the appointment by Laura Cochran, County Clerk,
of Yvonne Knox as a Deputy County Clerk for the purpose of takeing
minutes of the Commissioners meetings.
There being no further business to come before the Board. --the meet --ng was adjourned.
ATTEST-
County Clerk & Recorder Chairman -of the Board
147
'roceedinas of the Board of County Commissioners.---- ------- --------- day ............... - - Term, 19_x ............
--__ I y_-----.
1779
C. H. 'I r_ Feit
1 77EO
+laid
1"L1
Car'_ Fischer,
Count;,, Treasure_
1;
_.
Carl scLe;
Caunty Treas.,
�1^
Car'_ F. Fischer,
Count". Treasurer
1?�4 Carl F. _ _scher, Count;,i Tr=_asurer
^eters; l=rith^o>hding 1�a,?- ;.0
C.=,.S.I• 1,442.10
Btnte 41it'tthald=ng 2^c,.q�
Retirement Zcr,ez
The fallowing Resolutior r;: --s moved, seconded and unanimously adopted at the
meeting of the Board of Commissioners of Grund County held March 31, 1971 at tae
Ccurt:ouse in !got Sulphur Springs.
Resol'ation No.
P7SCLVED to approve an increase of 35C.0C per month salary
for Hc. -yard 44haley, in the Assessor's G`fice.
There being no further business to come tefore rhe Board, the meeting w_,3 adjourned.
Signed � ZZ %`�
James A. Murphy, Chairman
Adm. Asst, as Deputy County Clerk
=UL;;R MEETING
The Beard of Count;,; Commi,ssicrers of Gr,nd County met in retular session/�llle Courthouse
in Hot Sulrhur Strings on April 5, 1971. Members present were James A. Mur,,hy, Chairman;
Glenn Sheriff, Commissioner; Mark 2. :,urry, Commissioner; Jon Y. Mulford, Count:= Attorne;;•'
and Yvonne Knox, Administrative l.ssistnat. �
The 1'ollow411g Re501Llt;0rS tare moved, seconded and unanimously ador.ted•
Resolution No. 19•j1-4-1
R SOLVED to continue the hearing on Joe ':fray's applicat4 for
Liquor license until the ne�-t _e ulcer meeting, P1.ay 3,
1;x']1 at 10:GC AN.
Resolution No. 1971-4-2
WiT=1.E?.S Notice has previously Leen published of a lie. -.ring to he held at the
ho;.ar of 10:i`0 C'clech AM on ,Icrd,y, r.pril 5, 19']1 to consider tY:e pror.,osed
zoning ma -is for the F_==rshall, Granb�ane -.ser .:reps of the unincorroraiec'. area
of Grand County, ;rd to consider the :adoption of the •band County Zoning
-esolution with respect to sr:id are_,a, and %here -E said Hear;rg has now
been held,
NCI -1 1'HIRE'FOR-2 BE _T RLSOL'JF;D that the Soard o£ C'ommiseionerr of Grand
C.unty do hereby adoat and make effective },of this daze the Zoning
District Maus for the rIr:hall, Orarby and Fraser are'La o; the inincorrcrated
territory of Grand C unto, and do further make the Grand County Zenirg
Resolution ( resolution No. 1970-7-1) effective 'with respect to said areas.
Resolution No. 1171-4-j
6BEREiia the Hoard of Commissioners of Crand Ccur-t; :id advertise 'uy oubl-c
notice that a Rearing should be held an Monday, AFril 5, 1?71 at tae hour
of 10:30 O'clock AM to consider the -.doption of the Uniform 3uilding- Code,
1°70 Edition, publisl.ed by the Intern:etion.al Conference of Building Officials,
:herea.s said Hearing has been !ieli as advertised,
MC'W T"'UP.PORE BE IT F,iCLVED b,i the `;pard of Commiosioner3 of Gr -lid Count-,
t,:at there is hereby ado,%ted and made effective far a_1 are_s heretofore
or hereafter zoned b•; t;Le 3card of Commissioners of grand County the
unix"arm 3uilding Code, 1';70 saitior, Published n -f the International Con-
f?_.ence of Building Gfficiala.
Reolution No. 1971-4-h
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PO Box 409 ● 79050 US Highway ● Winter Park Station, Suite 7C ● Winter Park, CO 80482
Phone: (970) 726.8333 ● Fax (970) 726.3023 ● Web: www.highcountryattorneys.com
Law Office of
Michel & McQuain, LLC
David P. Michel* Of Counsel:
dmichel@highcountryattorneys.com Robert R. McQuain**
*Admitted in Colorado, Connecticut & New Hampshire **Admitted in Colorado, Missouri & Kansas
April 21, 2009
Via Hand Delivery
Deb Knutson, Chairperson
Fraser Zoning Board of Adjustment
153 Fraser Ave.
Fraser, CO 80442
Re: Application for Variance Request for the Givens’ Property
(the “Application” or “Variance Request”).
Dear Chairperson Knutson,
INTRODUCTION
This firm represents Tim and Karen Givens (collectively the “Applicants”). Please accept this
letter as a request for a variance pursuant to Article 12 of § 16 of the Town of Fraser Municipal
Code (the “Code”) from the front and side setback requirements of the R-2 Zone as defined in §§
16-3-120(c)(1) & (2) for the Applicants’ property located in the Town of Fraser, County of
Grand, State of Colorado, more particularly described as: Lot 10, Block N, Victoria Village,
Recorded at Reception # 142175, a/k/a 606 Quail Drive (the “Property”). The front setback for
the Property is 20’ and the side setback for the Property is 7’.
REASONS FOR VARIANCE REQUEST
The Applicants are attempting to condominiumize the duplex located on the Property. During
the course of preparing the application for a minor subdivision of the Property, it became evident
that certain improvements to the Property were located within the front and side setbacks of the
Property, which include:
1. the deck on the northwest corner of the building by a distance of approximately 1.5” to
8.5” into the side (northern) setback and 7.29’ into the front (west) setback as depicted in
the Setback Exhibit attached hereto as Exhibit 1;
2. the chimney in the northwest corner of the building by a distance of approximately 1’ 10”
from the front (western) setback as depicted in Exhibit 1; and
3. the storage compartments on the north side of the building by a distance of approximately
1.5” to 3” from the side (northern) setback as depicted in Exhibit 1.
(hereinafter collectively referred to as the “Encroachments”).
PO Box 409 ● 79050 US Highway ● Winter Park Station, Suite 7C ● Winter Park, CO 80482
Phone: (970) 726.8333 ● Fax (970) 726.3023 ● Web: www.highcountryattorneys.com
Page 2 of 4
Givens’ Variance Request
May 6, 2009
The Applicants are not requesting any change in use to the Property nor will the Applicants make
any alteration or improvements to the Property based on this application.
HISTORY OF ENCROACHMENTS
The current improvements to the Property were constructed in 1979 by C.B. Jensen, who was at
that time the Mayor of Fraser. It is unclear why Mr. Jensen did not comply with the setback
requirements of the R-2 zone when he constructed the improvements on the Property. The
setback requirements for the R-2 zone have been in place since 1974. The definition of
“setback” in § 16-1-40 of the Code, which states, “Setback means the distance required by this
Chapter [16] between the “face” of a building and the lot line opposite that building face,
measured perpendicularly to the building…”,1 also has not changed. The only reason that could
account for Mr. Jensen’s disregard to the setback requirements for the R-2 zone would be if the
term face was interpreted differently at that time then the Town of Fraser’s current interpretation.
The Town of Fraser (the “Town”) currently interprets the term “face" to include any
improvement attached to the building or habitable space, which includes, according to Town
staff, decks, chimneys and storage compartments. If the term “face” was interpreted differently
in 1979, to only include habitable space, then this could explain Mr. Jensen’s disregard of the R-
2 setback requirements because the current Encroachments are not part of the habitable space,
located on the Property.
The Applicants purchased the Property in 2003. At the time, they did not realize that the
Encroachments existed. As part of their due diligence in their purchase of the Property, the
Applicants obtained an Improvement Location Certificate Survey for the Property, which
discloses ownership of and Encumbrances on the Property, but not zoning violations. The
Applicants have not made any alterations to the Property causing additional Encroachments to
the setbacks during their ownership of the Property. The applicants upon discovering the
Encroachments self reported there existence to the Town. Accordingly, the Applicants
purchased the Property unaware of the Encumbrances and have done nothing during their
ownership of the Property to exacerbate the Encumbrances.
JUSTIFICATION FOR GRANTING VARIANCE
Pursuant to § 16-2-20 of the Code, the Fraser Zoning Board of Adjustment (“BOA”), has the
power to grant variances from the provisions of Chapter 16 of the Code once it has considered
the following six (6) provisions, which are set forth below in bolded text with applicant’s
responses following each provision in italics.
(1) That satisfactory proof has been presented to the Board of Adjustment showing that
the present or proposed situation of a requested building, structure or use is reasonably
necessary for the convenience or welfare of the public.
1 Emphasis added.
PO Box 409 ● 79050 US Highway ● Winter Park Station, Suite 7C ● Winter Park, CO 80482
Phone: (970) 726.8333 ● Fax (970) 726.3023 ● Web: www.highcountryattorneys.com
Page 3 of 4
Givens’ Variance Request
May 6, 2009
Both the present and proposed situations are reasonably necessary for the convenience and
welfare of the public. The present situation is such that there is no change to the building on the
Property as originally constructed in 1979. It would certainly be convenient to the public to
grant this variance to allow the status quo to remain in effect.
The proposed situation would allow the applicant to condominiumize the duplex located on the
parcel. Turning the duplex, which currently must be under single ownership, into two separate
units that can be sold to two different owners will improve the convenience and welfare of he
public. This will create more affordable opportunities for home ownership in the Town because
a prospective purchaser could purchase1 of the Units rather than both. It will also help cure a
hardship to the Applicants and allow for the subdivision of the Property. Furthermore, the
current zoning violations are a cloud on title, which could make the Property impossible to sell
in the future if the current zoning violations are not corrected through this variance request.
Accordingly, a denial of this variance request would be detrimental to the public convenience
and welfare.
(2) That the variance which is requested would not authorize any use other than uses
enumerated as a use by right of the district.
This request is for a variance from dimensional restrictions in the R-2 zone and would not
authorize any use other than the current use of the Property, which is in conformance with the
uses allowed by the R-2 Zone.
(3) That an unnecessary hardship to the owner would be shown to occur if the provisions of
this Chapter were literally followed.
If the provisions of this Chapter were literally followed it would work a hardship on the Owner
requiring them to tear down portions of the improvements on the Property that have been there
for approximately thirty (30) years without complaint from neighbors. They did not realize the
Encroachments existed at the time they purchased the Property, but when they did, they self-
reported the Encroachments to the Town. They are now attempting to resolve the
Encroachments by taking the appropriate steps to present this variance request to the BOA.
Granting the request would preserve the status quo on the Property. Denying the request would
force the homeowners to either (a) be in violation of the Code and unable to ever sell or
condominiumize the Property or (b) tear down substantial improvements to the Property. Either
option would undoubtedly be a hardship to the Applicants.
(4) That the circumstances found to constitute a hardship either were not created by the
owner, or were in existence at the time of the passage of the initial ordinance codified
herein, and cannot be reasonably corrected.
The Encroachments constituting the hardship were not created by the Applicants/ Owners.
(5) That the variance would not injure the value, use of or prevent the proper access of
lighted air to the adjacent properties.
PO Box 409 ● 79050 US Highway ● Winter Park Station, Suite 7C ● Winter Park, CO 80482
Phone: (970) 726.8333 ● Fax (970) 726.3023 ● Web: www.highcountryattorneys.com
Page 4 of 4
Givens’ Variance Request
May 6, 2009
As previously stated, this variance would preserve the status quo and would not alter the current
value, use of or access of lighted air of the adjacent properties. Furthermore, the Applicants
neighbor to the north, who will be most affected by this variance has written a letter of support
for this variance request, which is attached hereto as Exhibit 2. Actually, denying the variance
would require the Applicants to remove improvements to their Property, which could diminish
the value of their Property and consequently the value of adjacent properties.
(6) That the variance would not be out of harmony with the intent and purpose of Chapter
16 of the Code.
As previously stated, the Encroachments have been present for approximately thirty (30) years
without complaint. The Encroachments are by a matter of inches with regard to the storage
compartment, less than 2’ for the chimney, and the deck, which is encroaching on the side and
front setbacks is approximately 2’ high. Accordingly, this variance request would not disrupt the
harmony, intent and purpose of Chapter 16 of the Code.
CONCLUSION
The Encroachments on the Property have been there for approximately thirty (30) years without
complaint from neighbors. Granting this variance request would (1) maintain the status quo on
the Property; (2) allow the Applicants to subdivide the duplex existing on the Property; and (3)
clear up a cloud on title. The Applicants did not cause the Encroachments. They did, however,
upon discovery of the Encroachments, report them to the Town and initiate this application for a
variance to the BOA. Accordingly, the BOA should grant this variance request.
Very truly yours,
David P. Michel
(5) To bring in or deposit any fill or other materials on designated open space, except upon the
express written consent of the Town Manager;
(6) To deposit, throw or leave any litter, except in a receptacle or container provided for such
purpose. If no receptacles are available, litter shall be carried away from the area to be properly
disposed of elsewhere. For purposes of this Subsection, litter is defined to include all rubbish,
waste material, refuse, garbage, trash, debris or other foreign substance, solid or liquid, of every
form, size, kind and description;
(7) To fail to observe or respect written permits issued by the Town Manager;
(8) To violate any rule or regulation promulgated pursuant to this Article. (Ord. 291 Part 1,
2004)
Sec. 16-11-60. Violation and penalty.
Every person convicted of a violation of any provision of this Article shall be punished as set forth
in Section 1-4-10 of this Code. (Ord. 291 Part 1, 2004; Ord. 330 §1, 2007)
ARTICLE 12
Board of Adjustment
Sec. 16-12-10. Jurisdiction.
The Board of Adjustment is hereby granted jurisdiction over the granting of variances pursuant to
the provisions of Sections 31-23-301 and 31-23-307, C.R.S. (Prior code 13-10-4)
Sec. 16-12-20. Grant of variances.
The Board of Adjustment shall have the power to grant variances from the provisions of this
Chapter, but only after consideration of the following provisions:
(1) That satisfactory proof has been presented to the Board of Adjustment showing that the
present or proposed situation of a requested building, structure or use is reasonably necessary for
the convenience or welfare of the public.
(2) That the variance which is requested would not authorize any use other than uses
enumerated as a use by right of the district.
(3) That an unnecessary hardship to the owner would be shown to occur if the provisions of
this Chapter were literally followed.
(4) That the circumstances found to constitute a hardship either were not created by the owner,
or were in existence at the time of the passage of the initial ordinance codified herein, and cannot
be reasonably corrected.
(5) That the variance would not injure the value, use of or prevent the proper access of lighted
air to the adjacent properties.
(6) That the variance would not be out of harmony with the intent and purpose of this Chapter.
(Prior code 13-10-4)
Sec. 16-12-30. Procedure.
(a) The Board of Adjustment shall act in strict accordance with all of the applicable laws of the
State, County and Town.
(b) The procedure shall be as follows:
(1) All appeals to the Board of Adjustment shall be in writing.
(2) Every appeal shall indicate what provisions of this Chapter are involved and what relief is
sought by the applicant.
(3) The applicant shall set forth the grounds upon which an appeal is being sought.
(4) The Chairman of the Board of Adjustment shall, within seven (7) days after the filing of
an appeal, call a meeting of the Board of Adjustment for the purpose of reviewing the appeal.
(5) The Chairman of the Board of Adjustment shall furnish a copy of the application to the
Board of Trustees for an opinion, which opinion shall be returned to the Board of Adjustment
before the date set for the hearing on the appeal.
(6) The Board of Adjustment shall hold a public hearing on all applications and appeals with
the following conditions required:
a. A notice of said hearing shall be published once in a newspaper of general circulation
within that part of the County where the property is located at least fourteen (14) days prior to
the hearing date.
b. A written notice of said hearing shall be mailed by certified mail, return receipt
requested, at least fourteen (14) days prior to the hearing date to the owners of the property
within one hundred (100) feet of the property in question.
c. Preparation of and payment of all notices shall be the responsibility of the applicant.
(7) Before any variance is granted, the Board of Adjustment shall include a written finding in
its minutes as part of the record in each case, stating specifically the exceptional conditions, the
practical difficulties or unnecessary hardships involved.
(8) Unless otherwise stated in the minutes of the Board of Adjustment, all variance permits
shall be issued within six (6) months from the time such variance is granted by the Board of
Adjustment, after which time, if the variance permit has not been obtained, it shall become null
and void. (Prior code 13-10-5)
See. 16-12-40. Appeals from the Board of Adjustment.
Every decision of the Board of Adjustment shall be subject to review by certiorari by the District
Court, and as provided by law. Such appeal shall be filed not later than thirty (30) days from the final
action taken by the Board of Adjustment. Such appeal may be taken by any person aggrieved or by
an officer, department, board or bureau of the Town. (Prior code 13-10-6)
Sec. 16-12-50. Fees.
All appeals to the Board of Adjustment shall be accompanied by payment of a fee as set forth in
Appendix A to this Code for each separate decision or ruling from which a variance request is being
made. Said fee shall not be refunded, notwithstanding that the applicant has withdrawn such appeal
or that such appeal is denied by the Board of Adjustment. (Prior code 13-10-7; Ord. 330 §1, 2007)
ARTICLE 13
Amendments
See. 16-13-10. General procedure.
Amendments to this Chapter shall be in accordance with the laws of the State which require the
following action before adoption of any such amendments:
(1) Study and recommendation regarding each proposed amendment by the Board of Trustees.
(2) Completion of a public hearing before the Board of Trustees after at least thirty (30) days'
notice of the time and place of such hearing has been given by at least one (1) publication in a
newspaper of general circulation within that part of the County where the proposed amendment is
located. (Prior code 13 -1 I -1)
Sec. 16-13-20. Special procedure.
After receiving a report and recommendations on any proposed amendment to this Chapter, as
required in Section 16-13-10 above, the Board of Trustees shall hold a public hearing on the proposed
amendment with the following special conditions required:
(1) That notice of said hearing to be published in a newspaper of general circulation within the
County shall be the responsibility of the applicant.
(2) For proposed amendments to the Zoning District Map, the applicant shall mail a written
notice of said hearing by certified mail, return receipt requested, at least fourteen (14) days prior to
the hearing date to owners of property within two hundred (200) feet of the area in question.
(3) Within thirty (30) days of the public hearing on the requested rezoning, the Board of
Trustees shall approve or disapprove the rezoning request, stating its reasons for such action. If
the Board of Trustees fails to act within thirty (30) days, the requested rezoning shall be assumed
to have been granted. (Prior code 13-11-2)