Board of Zoning Appeals - Regular Meeting

Good evening everyone. I'd like to call to order the meeting of the Beaver Creek Board of Zoning Appeals on this November the 12th, 2025 at 6 PM. Could I have a roll call, please? Miss Barhorse, here. Mr. Rider, here. Mr. Roach, present. Miss Vest. Mr. Esman, here. Can I get a motion to approve the agenda as presented? Is there a second? Second. There being a motion, a second, all in favor say I. I. Oppos? Nay. The motion carries. I also get a motion to approve the minutes of the July 9th, 2025 board of zoning appeals meeting for the city of Beaver Creek.

Motion to approve the July 9th meeting of the Beaver Creek Board of Zoning Appeals. Is there a second? Second. There being a motion and second on the floor. I'll call the question. All in favor of approving the minutes of the July 9th meeting, say I. I. Those opposed, nay. The motion carries. Moving on to new business. We have two public hearings tonight. Uh so we will get started with case number V25-3, Ashley in Oswald, Dela Cruz to 2571 Merwood Court. Madam Secretary,

this is case number V2-3 on an application filed by Ashley and Oswaldo Daily Cruz 2571 Merwood Court, Beaver Creek, Ohio 45431, requesting a variance from chapter 158.104A of the city of Beaver Creek zoning code to construct an accessory structure within the front yard. The property is located on the northwest side of Merwood Court, three lots north of the intersection of Rustin Drive and Merwood Court, further described as book one, page 4, partial 118 on the Green County Property Tax atlas. Thank you. The staff have a presentation for us, please.

Thank you, Mr. Chair. Um, DZ members, uh, today the case we have for you today is case V25-3. Um, basically 2571 Merwood Court. Uh, this case actually is u you're kind of rehearing a case that had been to BCA previously. Uh, back in November of uh, 2023, the applicant applied for a variance uh, to allow a shed in their um, front yard. And uh, at that time um, BCA approved the variance request given the the uniqueness of their lot. Um and um but variance requests are only good for a year and so their variance had expired and um and they actually ran in some of some things they originally were asking for I think a 600 and some square foot accessory structure and uh some of the building requirements that they were looking at stuff caused them not to build it. So now they're coming back almost two years later requesting basically a variance for a 200 foot shed. So, it's a third of what less than a third of what it originally was proposed to be. Um, so basically, here's our our little drive by video. This is very short because they live on a culde-sac. So, it's just basically kind of a pan across the front of their property. Um basically um at this at this property location um they are on um it's kind of a kit like shaped lot and the area that's highlighted in in kind of a pink there um is the actual area that they're allowed to put an accessory structure for this lot. Um the the uniqueness about this lot um and here's where they're proposing. The uniqueness about this lot is basically the terrain. their whole property is basically a hillside. And so the really the only real flat area that they're allowed to put um the only real flat area that they

can easily put a shed is where the old house was. There is a house that was here uh prior to the tornado of 2019. and the house was destroyed and when the applicant um purchased this property, uh they rebuilt they moved the house to the back of the lot instead of rebuilding on where the ex original house was. And so where that original house was was kind of really the only uh kind of flat area on the parcel. And uh so um and they really couldn't put a shed anywhere on this parcel outside of uh needing a variance u because the house is so far back in the lot and given the the the topography there. Um so this is basically in this picture here um you can kind of see if I can get this pointed to work back here in the back you see this little gravel pad. That's basically where they're asking to locate the uh the shed. Um there's a little bit closer up version of that. Uh so basically looking at the um looking at our criteria um basically whether the property re could re yield a reasonable return. um you know staff felt like you know they they could um uh a lack of a variance would would not prohibit them from getting a reasonable return on the property. Um so we we didn't think they met that criteria. The second criteria was whether or not the variance was substantial and and staff believed it is substantial given the fact of where the where the shed was going to be located uh out in front of the property. But the whole purpose of a variance is you know to those in those pract where there's a practical difficulty to grant a variance. So while it is kind of significant it's kind of you know staff felt it was necessary given the location of the you know the terrain of the property um whether or not the essential

character of the neighborhood or properties would suffer detr detrimental detrimentally as a result of the variance. Uh we do feel like they they do meet this. Um the the shed will be located behind the other houses uh significantly behind the other houses uh in that in that culde-sac. So it it even though it is in front of their house, it's significantly behind the the neighboring houses. Um and so we we feel like that one was satisfied. uh whether or not the um the variance would affect the government delivery of government services. Obviously, we feel it meets that that the location of the shed uh would not negatively impact the delivery of uh governmental services. Uh criterion number five, whether the property owner purchased property with knowledge of the zoning restrictions at the time they purchased it. Um um you know we that it was the applicant's choice you know in our opinion it was the applicant's choice to relocate their house to the back. They had opportunity in that whole process to um to uh you know find out what our zoning restrictions were and all that kind of stuff and and uh the future of um purchasing or you know if they wanted to build structures on the property. So, we didn't feel they met that criteria for that reason. Um, just because they they did certainly have opportunity to to research that when they located their their new house. Criterion number six, whether property owner's predicament can be feasibly uh corrected, you know, by some other method. And we do feel like they met that because given the the terrain of that parcel, there really is not a good a good place um really a good other place to put that. And then lastly um whether the spirit and intent of the code um behind would be um observed and

substantial justice be done by granting the variance. And again, staff feels like uh you know, there would be substantial justice being granted in the granting of this variance request given given the the layout of their property and the location that they're requesting the shed to be located. So based upon the the criteria, staff is recommending that BCA grant the var once again grant the variance request. Yeah, the

Yeah, it will be visible from the neighboring house because it you know, you can you will be able to see it from the roadway, but it will be behind all the other houses. I mean, it's in a culde-sac, so you're going to kind of see what's behind anybody's house um in that in that situation. But yes, it will be visible from the neighboring houses.

Any other questions or comments? Hearing none, can I get a motion from someone? Uh, Mr. Chairman, on the basis that the requirements of 158.172H5A have been fully satisfied, a move for the adoption of the variance requested. Second. There's a motion and a second on the floor. Any further discussion? If not, can you call the role? Mr. Rider? Yes. Mr. Roach? Yes. Miss Vest? Yes. Miss Barhorst? Yes. Mr. Esman?

Yes. Thank you very much. Moving along, we have another public hearing today. Soon as I can find my paper on it's public hearing V24-4. Madam Secretary, can you update us on this request, please? This is case summer v2-4 on an application filed by Haley and Andrew Mogenberg 1680 North Latty Court, Beaver Creek, Ohio 45432, requesting a variance from chapter 158.105A of the city of Beaver Creek zoning code to allow a 6 foot high fence to remain in the required front yard along Hannes Road on a double frontage lot in an R1A district. The property is located on the west side of Hannes Road, four lots north of the intersection of Hannes Road and Edinburg Drive, further described as book five, page 4, parcel 176 on the Green County Property Tax Atlas.

Thank you very much. We have a staff report, please.

So, this variance request is for a um fence that's to be that's located currently located um in the front yard. Um it is a a double frontage lot. Uh the the house is located on North Latty and so the house fronts um North Latty Court and it also fronts to the rear um Hannes Road. So because because it has basically it fronts two different roads, it's considered a double frontage lot. It fronts in the front and also fronts to the rear of the house. Um and our zoning code requires that um houses um basically properties cannot have a fence taller than 48 inches in a required front yard. So that required front yard in an R1A like an ROA R1A zoning district is the first 40 feet behind the front property line. So you know on in this case we have a front property line here. So that house was built approx was probably built at that 40 foot front yard setback. You can't um that that front yard required front yard. You're not allowed to build structures in that and you can have not have fences over 48 in in that area. But because this is a double frontage lot, there's also the the front property line to the rear. Uh and you also have that required front yard in the rear. Um, I'll show another picture of that. And I'm probably getting ahead of myself, but here's the property, uh, the driveway of the property. There's the fence that's been built along the along that rear property line. Um, so when looking at this, um, basically these are the the houses that basically have multiple frontages, uh, along that stretch there of Hannes Road. The ones in green are the ones that have permits. The ones in cream colored uh basically

have uh um they basically have no no fence. And then there's an orang-ish colored one toward the south that had a permit, but it's non-conforming. And there's two two red parcels that are have fences that don't have permits. Uh the one on the one um oops the one on the south which is this one right here. Basically they have a six-foot privacy fence that extends into the required front yard. The fence has been there for a number of years and the property owner basically was notified a few you know a few years ago that in the event that they have they replace their fence it'll have to be brought into conformance. The fence has been there for an extended period of time. The other fence is up here at the top. I think it's actually like a 48 inch uh chain link or something. Um but also the same thing. I mean um it's been there we don't know how many years. It's been there for an extended period of time. Um so again it's um I don't know that the fence is not necessarily non-compliant of the fact that it was constructed without a permit years ago. So if again if they ever replace their fence they'll have to get a permit for that. So, um, and then the applicant's parcel property is this blue one right here. So, um, so this is another look at of their house. Uh, the fence to the along Hannes Road, the rear side of their house along Hannes Road. Um, this is the applicants um, drawing their site plan as you can see. Um, and this and their site plan, the fence is basically in in red going around. So, it's, you know, they on this south side, the fence is about 118 ft long from the house to the rear property line or to that front property line along Hannes Road. Um, and what I did was I I actually took that and kind of to help the board see kind of what the situation

is. The blue line is basically where they've constructed their fence. The red hash is the required front yard on that side and the green hash um is an area um let me back up a second. A couple years ago, BCA heard a case on South Latty that was almost identical to this one. Um Norm, yeah, I think I was the only one on the board. You you might have been. We heard a a case that was almost identical to this. In that case, um the board denied the variance request uh for that fence and um and we've been dealing with the city's been trying to work to get these taller non-conforming fences into compliance. So, as they're, you know, as people are are um replacing them, we're having them move them back and and different things like that. Um but staff also understood and and we had some conversations I think with BZA at the time even we understood you know the the challenge to you know having you know nothing within that you know basically nothing over you know four feet or at the time is actually 42 in in that required front yard. So, we made a zoning code change and we raised our height from 42 in to 48 in in the required front yard. And we also are allowing on double frontage lots the allowance of the fence to encroach 20 feet into that required front yard setback. So in this case, basically the applicant in, you know, with the zoning code change, before the zoning code change, they would have had to have their privacy fence here on the on this side of that green line. With our zoning code change, the applicant can actually build their fence here on on this other, you know, that's the 20T. So they can be in that green hashed area anywhere in that they can move up and encroach 20 feet into that front yard setback with

their fence. In the case of the applicant here, uh you know, it puts the fence if they built if they move relocated the fence to where it would be legally uh allowed. They would be behind their their small shed here, but they'd also looks like will be in front of this this row of trees that they have planted to the rear. Um but we we made that zoning code change. Uh planning commission uh you know and staff we we looked at that made that zoning code change to allow some flexibility uh to you know allow you know fences taller than 42 in to kind of encroach into that that front yard setback. um but yet still provide kind of an open space um so that we don't you know we're not creating kind of a a walled corridor down our major thoroughares and things like that. So it allows allows some openness but yet you know not allowing them all the way up to to the front uh property line. Now, it to just so um the the board knows, we do have a situation. One of one one place that people like to point to are the fences that went along Fin Castle and when they did the the Kemp Road um expansion of the roadway up there. I don't know if you guys are familiar with those, but there were some fences that were six foot that were put back um that are non-conforming. And the reason that was done was because those would have had been brought into compliance over time as they're being replaced, but because the city did a road project, we are the ones that actually took the fences out. And so therefore, they were put back in the same spot. Um, and so those those fences are there. Um, but again, once those fences are replaced, you know, they're going to be required to be brought in compliance just like the other ones. So the city's working towards you know bringing these you know where there are some non-conforming fences into

compliance. Um so um so anyway so looking at our um our criteria basically uh whether the property would re yield a reasonable return. Uh staff um don't doesn't feel like they meet that criteria because um you know they they would still get beneficial use of the property would still be able to yield a reasonable return um if they were denied the variance request. Uh they can build let me back up. they can build um the area in blue um you know outside of this green from the from the green line to the front property line they can have a 48 inch fence in that area. They just can't have anything over 40 uh just can't have anything over 48 in. So if they wanted to strictly have a a privacy fence they could put it on that green line right there. But any if they wanted a fence beyond that it would have to be limited to 48 inches from that point forward. Uh so you know the second criterion whether or not the variance is substantial staff feels that it is sub substantial because they're basically requesting 100% variance. They want a variance that that allows them to encroach 100% into the required front yard. And um uh again, we made a zoning code change in 2023 um to allow some flexibility and and encroaching into some of that required front yard. Um so we did allow some flexibility, but we we still think that you know 100% encroachment would be definitely be substantial. Criterion number three, whether the character of the neighborhood would be substantially altered. Um we don't feel that they they meet this. Um there there are fences like I said the one of the first graphics I showed you were where the other properties along that line. Pretty much everyone has either no fence

or a compliant fence. Um you know and and um to allow a six-foot fence into that area even though there you know there are some compliant fences in that area as far as being 48 in to allow a six-foot fence would be out of character with some of that. Aside from the one property to the south that's going to have to bring theirs into compliance. Um, you know, it is it is out of, you know, character with those other fences. There are other people that has six foot fences that are, you know, actually the one is actually before it was built before we made the zoning code change. So, that actually is at that 40 foot. It's outside of that total required front yard. Um, so we don't feel that they met met that um criterion. um whether or not the variance would affect adversely affect delivery of government services. Obviously, we feel like um they met that criteria. We don't think that having the fence there would would necessarily negatively impact the delivery of governmental services. Um criteria number five, whether the property owner purchased the property with knowledge of the zoning restrictions. Um, obviously as staff, we don't we don't know if they knew of this zoning restriction when they purchased the property, but certainly had they um or their contractor applied for a permit prior to the construction of their fence, you know, we could have educated them on, you know, what the requirements of the zoning code are. And, you know, they they could have made those decisions prior to the construction of the fence instead of coming after the fact and and kind of asking for forgiveness for building in in an area that they shouldn't have. Um the other thing is, you know, our zoning code is publicly available online. So anybody at any time could go online and look and see what our v our zoning requirements are. Um so we we don't feel like they met that criterion. Uh number six, whether the property owners um predicament if there's are there other remedies for satisfying that. Um we

don't we don't believe that there's a practical difficulty um that would prevent the applicant from constructing a compliant fence. Um you know they they have the ability to build a compliant fence if they want. They're just their plans for their fence just contradicts what the zoning code requires. And uh so that we don't you know we we feel there's plenty of there's other means to satisfy the requirements of the zoning code outside of having their fence u encroach 100% into the required front yard. And then lastly um uh whether the spirit intent behind the code requirement would be observed or substantial justice done by granting the variance. Uh staff does not believe they met this. Um also um again you know we have that in place uh for a reason. it's that have openness and other things. And um you know again in 2023 we made some zoning code changes to allow some flexibility there but there's plenty of other people who are meeting those zoning requirements uh for setbacks in the required front yard for fences. And um so you know to grant the variance without a practical difficulty would basically you know instead of doing substantial justice would be giving special privilege uh to someone that you know without really having a true justification for for building that building that there.

Any questions for Matt? You want to have the applicant speak first? Sure. As you approach, if you could, there's a little note up there on the upper leftand corner. If you could read that, please, and attest to that. Thank you. Um, I, Hilly Muggenberg, affirm that the testimony that I'm about to give before the Board of Zoning Appeals of the City of Beaver Creek is the whole truth to the best of my knowledge. Thank you. Thank you. Welcome.

Thanks. First off, I'd like to thank the Beaver Creek Board of Zoning Appeals, city staff, and residents for your time this evening as you consider our variance request to keep our six-foot privacy fence at its current placement. My husband AJ and I um are Beaver Creek High School sweethearts who have lived in Beaver Creek for nearly 30 years. We are the third generation of our family to plant roots here in the city. When we purchased our home um back in 2018, we weren't looking for our typical starter home. We were looking for our forever home, a place to raise our family in the city that we have loved our whole lives. We recently got a six-foot privacy fence installed on our property line back in August. Our old chainlink fence was rusted and the gate was broken, presenting a hazard because it no longer contained our de daughter safely in our backyard which is on the busy thoroughare of Hannes Road. We hired Troy Copley from Copley Construction to complete the work for us. Troy has installed fences for friends and family and we have even hired him previously to do other projects at our house. It's stated in our contract that he would pull the required permits and we had no reason to doubt that because we trusted him. Unfortunately though, through a neighbor's complaint, we discovered that our fence was installed without a permit. And through that complaint, we were educated that our house is considered a double frontage lot and had special zoning rules specific to that property. The rule being that our fence had to be 4t tall or less or be moved back 20 ft off the property line. We were blindsided and shocked. We had no idea we couldn't replace the old fence with a privacy fence and had no idea that Troy had broken our contract. We also knew it wasn't realistic for us to move the fence 20 feet back. Um, sorry, I lost my place. Um, we have a lot of mature trees in that 20 ft um, line there that would have to be severely damaged or um, removed in order to move it. And we also have a shed that would be in the way as well. And even if

we could realistically move it 20 feet forward, we'd be losing 17% of our backyard that we would no longer be able to enjoy on a daily basis. There are two main reasons that we had originally decided to install a six-foot privacy fence. First and foremost, it was for our growing family safety. Hannes Road is on a busy thoroughfare of um where cars travel 24/7 and are often speeding. We wanted to protect our three-year-old daughter with a tall fence so we didn't have to worry about her climbing out of the yard and prevent trespassing on our property. We know that the city plans to eventually widen Hannes Road and add sidewalks and that is something we are genuinely looking forward to. We love the idea of being able to take sidewalks to reach Dayton Xena with ease and have seen several car accidents occur at the entrance of our Enberg subdivision from cars being impatient and swerving around vehicles that are turning. But with the widening of that road, that means our property will have additional foot traffic through the easement and feel a privacy fence is necessary to protect our belongings and our family. The second reason we chose a six-foot privacy fence for our home is we want to install an ingground pool in the upcoming spring. My husband and I both grew up going to local pools like Idol Hour Swim Club and canoeing down the river at the Narrows. We both have a passion for water and swimming and want to share that love with our own family. Unfortunately though, my husband AJ is imunompromised due to a kidney transplant and he can no longer swim in fresh bodies of water or attend public pools for safety concerns. A pool in our backyard would give us the flexibility to control the pool chemicals to be compliant with my husband's safety and ensure our daughter has those same precious memories that we had growing up with our parents. And in order to build that pool, a minimum of 5 foot fence is required. The purpose of zoning resolutions, as we have come to understand them, is to ensure safety, happiness, and a secure sense of community for all residents of

the city of Beaver Creek. However, there are always unique situations that deserve the consideration of exceptions for the all to apply. We feel that our property located on a busy 35 mile hour thoroughfare of Hannes Road is one of those exceptions. Our goal is simple. To create a small sanctuary away away from the road where we can enjoy life, host gatherings for our friends, family, and neighbors, and raise our family, all without having to worry about the dangers of Hannes Road. As lifetime residents, we are dedicated to enhancing the family-friendly and safe atmosphere that drew us to com to remain in this community forever. We believe that our fence not only provides safety and comfort, but it also adds aesthetic value to our home and the surrounding properties. Several neighbors actually wrote letters in support of our six-foot privacy fence saying that it matches other properties in the Edinburg subdivision who have similar six-foot fences. We also provided examples to the board of other double frontage properties on Kemp Road who have the same style sixoot privacy fence as ours. So, we know it's aesthetically pleasing in other areas of the city. With all of that said, I respectfully ask that you reprove our variance so that we can continue building the perfect home in this incredible community that AJ and I have considered to be our hometown. Thank you.

Thank you. Thanks, Matt. Can you uh put the map up again, please? Actually, So, if I'm correct, the six foot fence could be built upon the green line. Oh, I'm sorry. You're right. Anyone else like to speak? Hearing none, I'll close the public hearing.

Chairman, we did receive eight letters that I wanted to put into the record. Um, the BCA members did receive a copy of each and those letters were in support of this case. Thank you very much. Okay. Sorry. So, madam, just I'd like to confirm. Sure. On the I guess that would be the east end of the green line. Yes. They could construct a six-foot privacy fence. Yes. So, it would be behind it would be behind this little shed here, but yet still kind of in front of these, you know, on the outside of these trees, this line of trees right here. We kind of that drawing so that you guys could

right out. And that was a result of the board of zoning appeals asking the planning board to look at the zoning code for lots with two front yards. Correct. Yeah, because we we we certainly recognized in in dealing with some of the other places like B Castle where they're backing up the pimp road and some other places. I mean, obviously this isn't this isn't the only place in town where we have double frontage lots and so obviously staff and and it certainly was spurred by discussion with BZA after that denial of the the variance request in 2023 or maybe

if memory serves to me we had three or four cases like that over the years.

Yeah, that was the only we we have some corner lot ones but there's only been in the last 15 years there's only been three double frontage cases. Um but um and the most recent one being I think it was 2021, the the one on South Latty. Um but um that was denied. But but yes, I mean that this this changes the zoning code was was partially a result of of you know recognizing the the conflict of or the you know trying to provide some flexibility for people that have you know double frontage lots. I mean staff certainly we recognize the the challenge if you can't you know fence in anything over 48 you know at the time it was 42 inches um you know within that that 40t of the road that behind you so that's where you know working with BCA planning commission council you know we increased that we allowed an encroachment of 20 feet and raised actually raised the height of the fence to 48 in which is pretty much a standard size fence anymore

board members have any questions, comments? You get two times. I thought he said six feet. So, was it 48 in for that back?

So, so you can have up up to in this green hashed area, you could have a sixoot fence anywhere within this. So, anywhere from the yard all the way up to this line, this east green line right here, you can have a sixoot fence. So the applicant has, you know, their their fence on the south side was 118 feet long. So they're they they're still can have, you know, from this down almost 100 ft of of yard that that's going to be fenced in. Um, so you know, there there's obviously plenty of space for a swimming pool and and and other recreational things that, you know, as far as their backyard and and and having that fence in. moving the fence in 20 feet is is certainly not going to prevent them from from having a swimming pool or or have a large area to, you know, for their kids to play in, things like that, because they're they're going to be, you know, they're, like I said, that that I think the top line, this top fence was like 12 20 some feet and the bottom was like 118 from what their uh what their contracted showed. I think it was Yeah, there it is. So that's that's currently what they the red line was currently what they had constructed their contractor had constructed and we certainly you know uh you know feel for for the applicant and the fact that their contractor did not follow through with their obligation to obtain a obtain a permit because this obviously could have been uh you know alleviated as far as at least the construction of the fence. We could have had that discussion prior to constructing the fence instead of after. But that's that's you know from our perspective you know that's something they'll need to take up with their contractor um you know as far as the their the contractor's failure to obtain a permit in violation of their contract. Anything else?

I've got a few questions for everybody. Um so first help me understand I look at uh the criteria under number three whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance and staff's conclusion is staff believes that approving the variance request allowing the fence to remain on the front property line would work against the city's pursuit of being the non-conforming fences of bringing I think it's supposed to be the non-conforming fence is into compliance and continuing to alter the character of the neighborhood. I don't think that's answering the question. So, explain to me with respect to this application in this neighborhood, how is anybody affected by having a sixoot fence in this location? Well, basically if if they're permitted to have, you know, if that fence is if that six foot fence is encroaching, you know, if if other people with six foot fences, you know, if if they're to be, you know, if with the encroachment 20t off that front property line, if this if this property is allowed to singly encroach that 100% into that required front yard, then, you know, it it obviously is affecting the looks of the road when you go down the road because you have this six foot fence that's encroaching significantly farther into the road than than any other fence that would be six feet. Um,

go back to the picture. Which one? The that one. So, there are fences. There are fences that along that There are fences distance-wise in the same location. There are fences distance-wise in the same location. That's correct. Okay. And the fence that was there was in the same location. Is that correct? Yeah. Okay. Let me let me ask this to staff, though. U do we know the height of the fence that was replaced? It was a It was an older chain link fence, so I'm assuming it was probably around 42 in. Okay. We'll confirm with them in a minute.

Okay. But I I I I'm just finding the argument very circular here. Okay. I understand what the goal of the city is. Sure. And I'm not arguing that it's not the goal to be achieved. Sure. But I I still am trying to understand how staff believes that if that fence were 2 feet shorter from the distance between the shed to the road that this neighborhood would be changed somehow. Okay. And I've got a stack of input from adjacent property owners that disagree with you. Okay. So, what do you say to them?

How's it affecting the neighborhood that we're not getting? That I'm not getting. Sure. That's the question. It's the fence if it were two feet shorter would still be in the same spot. Correct. Where it was previously.

Correct. All right. Well, I guess we'll we'll leave that and move on. Um when we have properties that have front yard and front edge I guess uh both on the front exposure of the residents where they would ingress and egress at their front entry but also the backyard. Where is the backyard or is there one?

Right. So basically, yeah, basically on these types of properties, they have basically two front yards um and they have um basically the front yard is from the street to the house. So basically have two front yards and two sideyards essentially. Okay. So So the the answer is there is no backyard. There is no backyard

as defined by zone. Okay. Um, what could you tell me about properties that would be equivalent to this in other neighborhoods that would have a busy thoroughfare on the back and also be accessed on the front so that we have the same front yard problem on both sides? I see it on Hannes Road, but where else would I see it?

Yeah, Kemp is probably the only is probably the the major other location where we um is probably the most notable Um there there's not very many, but Kemp would be the the primary one that would come to mind because the the houses front Fin Castle, but they but they also front and to the rear of of the house um Haynes Road. Okay. Um which is the one the applicant was making reference to. Okay. And and if I understood uh even what brought us here, there was a complaint that was brought to the department. Correct. Correct. And without getting into specifics about how it came to be reported, was there anything other than the location and or the height that was an issue? Was it the quality? Was it something else?

No. The fact that the No, it was just the the location and the height and the fact that it wasn't it was constructed without a permit. Okay. Were the items that were in violation?

Okay. And did we find did staff find that the applicants um assertion that uh they had hired a contractor who was to be responsible for all of that did that did staff conclude that that was legitimate and some misunderstanding as between those two parties or did we think that that's not true? No, we we have no reason to to question the fact that, you know, that the the pro that the contractor was responsible for obtaining the permit. I mean, we have we have no reason to doubt that that wasn't the case. Um, ultimately our code, you know, the property owner is ultimately responsible for compliance of the property, you know, and so it was basically their respons responsibility to make sure their contractor followed through with what they agreed to do in their contract.

Okay. So, at at the end of the day, I think this is what I'm left with. Staff would think that fence would be just fine if we had a permit and it was 40 feet back from where it is. Yeah. Or 20T even. Okay. And the same height at 20T. 20. Okay. Matt, am I correct in saying that it would also be okay if that were four feet? There's two options. One is to move it and the other is to lower the section that goes. Yeah. either that last 20 ft they can either lower it to 4 feet or if they want to maintain that six foot height move it back to 20 ft from that the front property line adjacent to Hannes Road.

Okay. Um and and I won't ask you to speak for them. I'll talk to them in a second. But I'm I'm sure that they have already discussed with you the what they feel are the practical difficulties of doing either of those things. Right. Uh just as expressed in their in their justification. Uh when staff concludes it wouldn't be hard to come into compliance. will just move the fence back. What as the homeowner, how would you expect that to be addressed?

That would be something obviously they would need to take up with their contractor since their contractor, you know, was kind of in violation of their if they if in the contract it was specified that the contractor was responsible for obtaining permits and stuff. If the contractor failed to obtain those permits, then I would I would go back to the contractor and it would be the contractor's responsibility. I mean, ultimately it's their responsibility to make sure their offenses in compliance. I I got that and and and I appreciate what you're saying. Uh but I'm actually looking for a different angle. It's staff's conclusion that this would be easy to remedy. Oh, yeah. I'm sorry. Yes. So So as the homeowner, what would you expect the homeowner to accomplish? We just take it down from where it is, put some new posts, and move everything back. It's all reused. Yes. Yes.

And staff thinks that that's something that can be easily done. It it certainly is is possible. I mean, it it certainly can be done. Just to be clear, the practical difficulties test, it's whether not after they've already violated it. Is it easy for them to go back? Yeah. I'm not confusing the standard. I'm just making sure I understood what the the staff's conclusion was based on. Sure. Sure. Our conclusion that it can be reasonably accomplished.

Okay. All right. And um I'll ask you while I've still got you here, but I I need to ask these folks. When they make the claim, we can't really do that because we're going to disturb the trees somehow, right? Um if if we are constructing a pool there somewhere, are we going to be having a problem with the trees anyway?

Yeah, that Yeah, that certainly would be a good question for the applicant. I don't I don't necessarily see how the in in my opinion and staff's opinion, I don't necessarily see how the trees would be too negatively impacted because it you know it looks like based upon that um this drawing here the the fence could be where the fence could be located um would be behind that the the smaller shed but but still in front of the trees. So I I think it would have you know minimal if any impact on the trees. Okay. And then again, there's plenty of opportunity to for a pool in that in that rear yard. Okay. But the impact of the trees to the pool, I'm not I can't answer. Okay. All right. Thank you.

The applicant. I do. All right. So, let's start first with the trees. Let's swear in first. I apologize. Yes. You were. So, uh, I, Andrew Mogenberg, affirm that the testimony that I'm about to give before the board of the zoning appeals and the city of Beaver Creek is the whole truth and, uh, the best of my knowledge. Thank you. So, Mr. Moenberg, explain to me if the fence were moved back 20 feet, you seem to be past the canopy of the trees, what what is it that uh, you think would be damaging or harmful?

Well, so there there's nine trees back there total. Um, eight of those are pine trees. So, they they go down all the way to the the ground, the the trunks or the branches on the lower side. So, by the shed, there are certainly, you know, two or three um pine trees right there at that that green line that would definitely have to be uh trimmed, you know, probably to the trunk, honestly, because it's right up against that shed. It's hard to see from this picture. Um, there is about middle of the yard there is a non-pine tree that is it's about 20 it's like 20 and a half feet off of that fence. And I and my concern is that I'm going to have to cut that entire tree down in order to comply with that 20 ft back. Um because again we want to put a pool in. So we we can't just put the the fence down to 48 inches. We we have to move it back, you know, or Yeah. Um, if I'm correct, it appears to me that this area is the canopy of the trees that you're talking about. Right.

Uh, the the top side. That that'd be the north side, I think. Right. Right where the shed is. There's three there's three pine trees right there that are butted up right against that shed. Okay. So, to the left of this green line, uh, at the top of that the screen. Yep. Yeah. Yeah. Yeah. And they're they're to the left of the green line because I'm just not seeing they're to the they're to the the they're on the green line. Okay. And how old would you estimate those trees to be if you know? So I you know this is an aerial view and you can go back as uh 2003 I think is what I saw. And those trees have been there at least that long. Okay. Along with the shed and the everything else that's there.

All right. Well I I'm sure I'm not sharing new information with you and you've heard the the SAS presentation this evening. They say, um, hey, it's it's not about gifting these out to nice people. Yep. Uh, who've lived here a long time. It's establishing some continuity so people are getting the same answers to the same questions. Yep. And we don't want arbitrarily high fences in the wrong spots. And we want the rules to be enforced uniformly for everybody. And in fact, we've even had this in other locations that are equivalent. Uh, we get all the time, by the way, people who bring us pictures of, well, that yard has it and this one doesn't and why are you telling us no?

And we find out that maybe it's just a non-conforming use where something was already there before the zoning code was even adopted. Yep. Right. So, I never know when people bring me those things if that's the case or not. Yes. But, but the point being that we've had other applicants who've gone through this process, they've been denied the same relief and you think you're entitled to it.

So, how do you address that concern to staff? I again I I the trees to me I think are the the biggest thing at play here. I mean we could just put the fence down to the 48 inches, but I mean again we we'd like to have a pool and I I feel like we should be allowed to have one if we want one, but I from my understanding there's a requirement that it has to be at least 5t high. So that 48 in that doesn't cut it. So you know we talked about that 1630 um uh household and they actually have two fences in their property. They have one around just their pool and they have a 42 in uh that bridges the gap between the two six foot fences on their the corner and next to them and you know could we move it back 20 ft? Absolutely. But the problem with that is going to be those trees and one of those trees will have to come down in order to comply with this uh 20 foot setback.

And I'm going to ask you only if you know um as you're as you have alluded to there's going to be some road widening in that area. From my understanding, do do you know how much um of of this area is going to be affected? Has anybody shared that with you? No, but that that measurement is 32 feet. Okay. All right. I think that's all I have. Thank you. Okay. No problem. You have anything? Second chance. Any further discussion among the board hearing? None. I will accept the motion on this case.

I will do a um I'm going to go ahead and move to uh deny the variance um based on not meeting the criteria in uh chapter 158.172H5A of the city of Beaver Creek zoning code. Is there a second? There's a motion with a second. Is there any further discussion hearing? None. Madam Secretary, would we call the role? Mr. Roach? No. Miss Vest. Miss Barhorse. The other way around.

The motion is to deny the variance. They are saying to grant the variance. That's why this is always confusing when a motion is made in the negative. I'm sorry. So yeah, a voting for a yes when it's to deny is Yeah. Sorry. Voting yes to deny. Mr. Rder. Yes. Mr. Esman. Yes. That being the case, is there any further business before the board of zoning appeals? If not, I'll accept a motion to adjurnn. Mute and a second. We are adjourned.