Background:
The record for the action is attached as part of this packet.
This is the first appeal to the Council of a request to exceed the MPFA,
and the first opportunity for the Council, as the legislative body that enacted
the MPFA, to review a specific conditional use permit application. The Historic
and Planning Commissions have been reviewing the requests and have been making
decisions based upon the specific merits of the proposals, as well as considering
the conditions existing in the surrounding neighborhood.
The key issues raised by the appellants in their formal appeal are as follows
(paraphrased), with a staff response:
1. The Conditional Use Permit process is loosely written
and arbitrary in allowing applications to exceed the MPFA by up to 25%.
The CUP process appears flawed, unfairly administered, and undermines
the intent of the size limit ordinance.
The CUP is essentially a variance and should be subject to variance
criteria.
In the adoption process for the MPFA ordinance, it was proposed by the Historic
Commission and approved by the City Council to have an "escape valve" to
allow for relatively small exceptions to the MPFA as a conditional use.
Essentially, if the conditions were appropriate, a house exceeding the MPFA
could still be approved and deemed appropriate for the neighborhood.
Both the Historic Commission and Planning Commission have been reviewing
the few applications submitted since this ordinance was passed, and each
CUP request has had unique conditions which have been found to warrant approval.
However, it is a discretionary decision, and subject to interpretation. It
is not necessarily loosely written or arbitrary, but rather handled on a
case by case basis. In the early implementation of this ordinance, Staff
has been cautious with applicants, and not necessarily readily encouraging
any applications to exceed the limits. However, we cannot prohibit applications,
but if an application is filed, we ensure that it best complies with the
intent of the CUP process. Given the review process, we have found that with
an appropriate design and neighborhood consideration, CUP's have been granted
by the Planning Commission to exceed the maximum limit
The "escape valve" in the ordinance was specifically designed as a Conditional
Use rather than a Variance due to the much more stringent standards in approving
a variance. With a variance, an applicant has to essentially prove that there
are "unique and unusual circumstances that apply to this site which do not
typically apply elsewhere." This is a very difficult test. Rather, the
Conditional Use process was implemented, where criteria are utilized that
ensure that the conditions in the area are appropriate for such a use. It
is a more discretionary process, and one that can more easily meet the wide
variety of demands associated with a maximum house size ordinance. Each
application will have a different set of conditions under which the request
will be reviewed. In past requests, there have issues of design, of plans
made prior to adoption of the ordinance that involved specific family issues,
and of existing structures and distances between buildings. Each request,
while different, has helped shaped the approach taken.
2. Traffic Issues along Hoxie Alley and the intersection
of Church and Scenic.
This lot was created by a minor land partition approved by the City in December,
2002. At that time, the lot design was approved for access off of the
alley in accord with City policies. Given that a home could be constructed
on this property which met the MPFA as only a building permit without further
notice, the issue of traffic on the alley and Church is not relevant to the
MPFA request. Essentially, this issue was addressed and approved as part
of the lot creation in 2002.
3. Damage to tree roots next door at 147 Church
Street.
Other than ensuring compliance with standard setback requirements, the City
cannot impose additional requirements on the applicant to protect a tree
which is not on the applicant's property. We would encourage the property
owners to work together to ensure that the construction activities are done
in a manner which best protects the tree. |
