BOA 6-20-18

CITY OF DOVER BOARD OF ADJUSTMENT MINUTES June 20, 2018 A Regular Meeting of the City of Dover Board of Adjustment was held on Wednesday, June 20, 2018 at 9:00 A.M. with Chairman Sheth presiding. Members present were Chairman Sheth, Mr. Keller, Mr. Hufnal, Colonel Ericson and Mr. Senato. Staff members present were Mrs. Purnell, Mr. Diaz, Mr. Swierczek, Mr. Hugg, Mr. Coburn, Mr. Osika and Deputy City Solicitor Mr. Pepper. APPROVAL OF AGENDA Mr. Hufnal moved to approve agenda as submitted. The motion was seconded by Mr. Senato and unanimously carried 5-0. APPROVAL OF THE REGULAR BOARD OF ADJUSTMENT MEETING MINUTES OF APRIL 18, 2018 Mr. Keller moved to approve the meeting minutes of April 18, 2018. There were no corrections. The motion was seconded by Mr. Hufnal and unanimously carried 5-0. OPENING REMARKS CONCERNING APPLICATIONS Mr. Dave Hugg, Planning Director stated that the meeting today will be conducted in accordance with the motion of the Agenda. There is one (1) application on the agenda under New Business. The Application file will be read, and the floor will be opened for questions of the applicant by the Board and for public testimony. If the Board needs to consult the City Solicitor, they will recess to discuss legal matters. If the applicant must leave, they can contact the Planning Office at 736- 7196 to learn of the Board’s decision. A formal notice of the decision will be mailed to the applicants. Approved variances expire after one year if the approved project has not commenced. All public notice for the new applications on this agenda was completed in accordance with Code requirements. The meeting agenda was posted in accordance with Freedom of Information Act requirements. NEW BUSINESS Applicant #V-18-03. 500 West Loockerman Street. Robert Duncan has requested a variance from the requirements of the Zoning Ordinance, Article 3 §10.1 pertaining to permitted uses in the IO (Institutional and Office Zone). Specifically, the applicant seeks to continue the use of a part of the basement as an apartment for an in-residence caretaker. The site is located on the western end of Loockerman Street, west of Jerusalem Way, and north of North Street. It is 2.18 acres +/- in size and zoned IO (Institutional and Office Zone) and subject to the H (Historic District Zone). Tax Parcel: ED-05- 076.12-04-11.00-000. The owner of record is Robert Duncan.

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 Exhibits for the Record: Staff Report, zoning exhibit, and statement and plans submitted by the applicant. Legal Notice was published in the Delaware State News on June 10, 2018. The public was notified in accordance with regulations. Mr. Diaz gave a summary presentation of the Variance Application Request. Colonel Ericson questioned the procedure for maintaining documents. Mr. Diaz replied that the procedure for maintaining the documents have changed over time (the standards for what is kept in the records). At this point, whenever there is a Building Permit application once the Permit is issued and paid for, then Staff will first scan the entire Permit application including what the applicant submitted and our own documentation for it that will go into the electronic records. The paper copy of the Permit is then discarded because we do not have room for all the Permits in the office. It used to be that the documentation that staff produced in addition to the application was less extensive than it is now. For every Permit, Staff will write a description of what exactly is being permitted. There is a summary in addition to the construction document that the applicant submits. For more recent applications, it is our go-to for finding out what exactly was forbidden in an application. The older Building Permits do not have that information. Colonel Ericson stated that it is very critical for documents that they should be maintained. When he worked at DMV (Division of Motor Vehicles) every document received was scanned into the computer for future access. Colonel Ericson questioned what information was on the Permit document concerning the zoning area as to what can and cannot be done in this zoning area (related to whether something is allowed or not). Mr. Diaz replied that currently when they approve a Permit, the office will write in the summary documentation whether the use is permitted under the zoning in addition to whether it meets supplementary regulations, trash, parking, etc. Colonel Ericson questioned would the Permit specifically indicate that you could not put apartments or caretaker units. Mr. Diaz replied no. The documentation would not list everything you could not do. It would only state what is proposed and that it can be done. Colonel Ericson questioned whether the owner and attorney received copies of the documents. Mr. Diaz replied at the time that the original Permit was approved, yes, they would have been given a copy of the approved Permit which at the time did not include any Staff comments beyond the approval. Colonel Ericson noted and asked that when you normally issue a Permit (when the building had the railroad office) would it have been considered an office. Mr. Diaz replied yes, it was considered an office with breakroom type functions. If you look at Exhibit B in the packet, it is a map of the unit that was given to the City by the applicant. He could not state specifically that this is what was approved with the Permit because the office no longer has that documentation or what the unit currently looks like now. Colonel Ericson stated as he referred to Exhibit B that it states office suite. He questioned that it 2

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 would not be allowed to go to a full-time residence if it is designated as an office. Mr. Diaz replied that is correct. Mr. Diaz stated that there was one item of correspondence which is a letter from the GSA (General Services Administration) representing the FBI as one tenant of the building. They are opposed to the granting of the variance. They did not provide much detail in the letter as to the reason why they oppose other than (the statement): “As a leasing agency we do not place tenants in buildings where a residential unit would impact the tenant agency. In this case, the residence would negatively impact the tenant, FBI.” Mr. Hufnal asked if this was the only negative correspondence received. Mr. Diaz replied yes, this is the only correspondence received positive or negative. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Representative: Mrs. Linda Duncan, Owner Mrs. Duncan was sworn in by Mr. Pepper. Mrs. Duncan testified that they were very surprised. They have had so many inspections over the 14 years. Raymond Williams has been there quite a few years. This kind of took us by surprise. First, the Board saw the Jackson Architects drawing and nothing has been changed for Raymond to live there. Raymond asked if he could live there and they were delighted. Not very many people would want to live in a place that does not have any windows and is in an office building. Again, they were very delighted when he said he would because there are many times with the number of offices in the building and the number of people coming in and out of the building (although they are locked at 5pm) how many people have keys. With the Outlook being on the 5th floor and the number of events there, many things could go wrong when you have that. Very often, because Raymond lives there, he has been able to call us to let them know that a door has been left opened, parking lot lights have been left on or the parking lot lights are not on. He is there to take care of everything and they cannot mention enough how grateful they are for Raymond. Although at times he may have a little temper issue and so forth, but to have someone, that is his life. Raymond has been very upset. He knew about coming to the City before they did regarding this issue. Raymond was so upset thinking about having to leave. Mrs. Duncan stated that she would like to answer any questions that the Board may have. What she is saying is what harm is there to have Raymond live there? It is like 24/7. Raymond does not drive. There is no car in the parking lot; he walks everywhere. Chairman Sheth stated that there are a lot of inspections. By the good grace of the City, it was disclosed that it was being used as an apartment. The Board is not looking at whether Raymond is a good or bad guy. They are following the Ordinance and the City requirements; this is how they make their decision. Colonel Ericson asked Mrs. Duncan if she was Mr. Robert Duncan’s wife. Mrs. Duncan replied 3

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 yes. Colonel Ericson asked Mrs. Duncan if she was aware that Mr. Duncan had been before the Board in the past. Mrs. Duncan replied that she was aware that he has been before a lot of Boards. She was not aware if he had been before the Board of Adjustment for this apartment. Colonel Ericson replied negative, it was completely unrelated to this project, except it talks about precedent and that is his concern. The first time, many years ago Mr. Duncan came before the Board and asked for an extension of 2-feet on his garage; it was granted. A couple of years later his next-door neighborhood came to the Board and requested 20-foot increase on his garage. The Board was inclined to say no because it went into the offset area. The applicant stated to the Board that they had given the same variance to his neighbor Mr. Duncan and he was requesting the same. The Board went out to do the measurements, and as he recalls it was 20-feet. It showed that no matter what the Board approved, it was not what Mr. Duncan was going to do. Colonel Ericson stated that he is very skeptical that if this variance was granted what Mr. Duncan might come up with. If a precedent is set, Mr. Duncan might take some of the empty offices in the building for regular apartments. The Board does not want to see this expanded. Mrs. Duncan stated that she could not state that this has ever come up that the empty offices would be turned into apartments. Colonel Ericson commented that office space was changed into a living quarter for someone without permission. Mrs. Duncan stated that it was living quarters previously. It was totally an apartment previously and there were people there 24/7. Colonel Ericson stated that according to the Exhibit B it was approved for an office suite. To his understanding the Norfolk Southern Railroad Company was using the office suite as an office that included two (2) beds. Mrs. Duncan stated that the office suite also included a kitchen and bathroom. Colonel Ericson questioned whether the applicant had the Building Permit or Certificate of Occupancy. Mrs. Duncan replied no, she only had the plans from Jackson Architects. They have not been in the office since they moved from their home. They do not have a lot of paperwork. Colonel Ericson mentioned that it seems as if Mr. Duncan disregards the rules from time to time. On the paperwork that was submitted, it shows office suite. Now, you are telling the Board it is an apartment. He did not see any indication where that would be an apartment. Mrs. Duncan stated that it would not be an apartment for Colonel Ericson or her, but it serves for Raymond. It is what it is. Colonel Ericson replied only because you did not follow the rules. Is that correct? Mrs. Duncan replied okay. Colonel Ericson stated that there are other buildings in that IO Zone that if the Board should rule in Mrs. Duncan’s favor, then others would want the same (caretakers, living quarters, etc.). The 4

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 City has met and came up with a plan that has never been violated, at least that he was aware of, where you can put apartments in an IO Zone facility. If the Board changes that and state that you can, then others will want the same privilege. Chairman Sheth stated that the application for that space has always been office. The question is a fee was never paid as an apartment. If Mr. Duncan had applied for a permit as an apartment, he would have been informed at that time that it could not be an apartment. This is the reason this has been going on for the last 14 years. Colonel Ericson stated that the Board tends to follow what the City Code states. The Planning Commission, City Council, and Mayor all agree, so the Board try to keep to the decision unless there is definitely a reason to change it. They do run across this occasionally. Colonel Ericson went through each item: He mentioned that the first thing to grant a Use Variance: The Board shall determine that the following criteria exist and document them in their findings of fact: (a) That there are physical conditions applying to the land or building for which the variance is sought, which conditions are peculiar to such land or building, and have not resulted from any act of the applicant or any predecessor in title. It seems to him that this is something Mr. Duncan did without permission. This is a self- inflicting wound. Mrs. Duncan stated that she did not know what Colonel Ericson wanted her to say to that. Obviously, they were wrong for not applying for Raymond to live there, but nothing has been changed. Nothing has been changed at all inside that office. She does not see any harm it has done. Ultimately, it is up to the Board what they decide. She just thinks that it is great especially in that section of town that they have someone watching the building. Before we had anyone there in the interim between Norfolk Southern Railroad Company leaving and Raymond living there, they had homeless people using the restroom. When people would come in the morning to use the restroom it smelled; there would be homeless people still in the restroom. There are often people still in the building staggering around because the doors are open for events sometimes until midnight or 1 a.m. in the morning. It is just rare to have someone that wants to live there. Again, it is the Board’s decision as they have not made any changes. It is not any more beautiful. There’s not a blade of grass; there are no windows. Representative: Mrs. Erin Barrett, Daughter of the Owner Mrs. Barrett was sworn in by Mr. Pepper. Mrs. Barrett testified that Raymond who now lives in the building started working for State to State Janitorial Supply. He worked for them prior to the Duncan Center opening. She and Raymond were the first to work in the Duncan Center prior to Social Security taking their lease. Raymond has worked there for 14 years. The dynamic around that area has dramatically changed within the last 14 years. Norfolk Southern Railroad Company came to them in 2005 and they wanted a type of crash pad. They were working on the railroad from the old railroad station and they needed a crash pad for the guys who worked at night. They asked for a shower. Mr. Duncan 5

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 applied for a permit and received a Certificate of Occupancy afterwards. As Mr. Duncan normally does, he put in the smallest hot water heater you could imagine. You can take about a 30 second shower in this office suite/crash pad that Norfolk Southern Railroad Company used. He also put in a small kitchenette that was requested in the suite. It was built; she listened to Mr. Diaz mention whether what was turned in was the actual drawing that was submitted by Mr. Duncan. She whole heartily agrees with what was mentioned earlier regarding what Mr. Duncan has done in the past. But this was built specifically as the drawing states, it was submitted and dated 2005 from Jackson Architect. Norfolk Southern Railroad Company requested a small office suite, two (2) sofas, back bedroom that stored cots, shower, and small utility sink. Due to the lack of business they ended their lease at the end and the Duncan Center had this vacant space that just sat there. When the need came, the most obvious use was an apartment because absolutely nothing was changed, not even the paint on the walls. When you mention reasonable use of the land and it cannot be used for something else, she agrees that the Duncan Center can be used as office space, but that specific land has no other use except for a crash pad type of use. To her with Raymond being there is the most obvious change. She understands that it is not zoned properly and that is the reason they are present today to request that variance so that they can have the office suite apartment in the building. She understands that it has never been granted before, but she assures you that it is needed now. There are homeless people that sleep in the stairwells and there is one that sleeps in the State Building that is west of the Duncan Center every night. She is married to a City of Dover police officer and there was a domestic because she could not remove someone who put a tent on the Duncan Center property right outside of the locked exit door. There was a tent inside a tent. When you peeped inside there were book shelves inside the tent. It took her a full week to remove the tent from the property. We just thought with people walking in and out of the building, that they had to walk by and see the tent. Again, she understands that it has never been done before, but they are strongly asking that the Board would make this exception because it does keep the illusion of being safer in the building by keeping people out after hours. Colonel Ericson stated he did not want to get into Raymond work schedule. Expecting one person to be available seven days, twenty-four hours a day for security; he is not going to cut it and he cannot possibly cut it. Mrs. Duncan replied that Raymond is not the only person. Raymond works from 6 a.m. until noon. There is another person that comes in til 5 p.m. and locks up. Raymond is not constantly walking the building. He is living there so he is aware that lights are left on. He does not have a lot other than horseshoes. He does not have a lot to do; this is his mission in life. Chairman Sheth stated that the Board strictly makes the meaning interpretation of the Ordinance. The Board does not disagree with what you are saying and whether it is good or bad. The problem is, the Board cannot be subjective to what is being said. Each Board members tries to make an interpretation. If it was done at the same time that it was stated, it probably would have been granted at that time, but the Board does not know that. The question is, how do you apply for the variance to convert to apartments and then the Board tries to make an interpretation of what they can and cannot do. The requirement is great, and everything is good, but the problem is when the Board is not sure they refer to the City Solicitor for his opinion. On top of that, the FBI Agents have written a letter and it cannot be ignored. The Board will not ignore it because 6

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 they are strictly making interpretation. There is a Code Enforcement Officer and Fire Marshal present today who also follow ordinances every day. There are so many offices and houses that have basements whether it is downtown or anywhere. This is really the big issue, not what you are saying. The question is whether the Duncan Center can have an apartment or not within the limitation of the Code and ordinances. The Board may request that the City change the ordinances, so we will not have to go through this. This is up to the City Council. Mrs. Duncan stated that she just glanced at the letter, she was not sure it said FBI, she thought it just said GSA. She asked if it stated FBI? Colonel Ericson replied yes. Next Criterion: “(b) That the aforesaid circumstances or conditions are such that the strict application of the provisions of this ordinance would deprive the applicant of all reasonable use of such land or building and the granting of the variance is necessary for the reasonable use of the land or building, and that the variance as granted by the board is the minimum variance that will accomplish this purpose.” Colonel Ericson asked the applicant what their position on that was. Mrs. Barrett replied that it will be vacant. The building is not currently at full capacity. When you mention specific land, she is thinking that space. The space that is being rented currently as an apartment. Colonel Ericson replied that the Board is looking at the whole building. The whole building has a lot of tenants. The Board is not just looking at one room. The room could be used as storage and security room. There are other uses for the space. Mrs. Duncan replied they have plenty of space right now. She is not sure if the Board is aware of the rental situation in Dover at the current time, but it is not good. They have too much space and they do not need any more storage, they have plenty of empty rooms. Chairman Sheth stated that there used to be a lunch and/or conference meeting room in the basement for a committee. Next Criterion: “(c) That the granting of the variance under such conditions as the board may deem necessary or desirable to apply thereto will be in harmony with the general purpose and intent of this ordinance, will not represent a radical departure therefrom, will not be injurious to the neighborhood, will not change the character thereof and will not be otherwise detrimental to the public welfare.” Colonel Ericson stated that it would be because they have never had living quarters in this IO Zone area. This would be a new one and would set a precedent that they probably could not live with in the future. Mrs. Duncan replied that she is getting pretty old and she realizes that life evolves, and change has to happen. She sees a lot of changes that need to happen in this town. Maybe there will be more apartments coming up in that area and maybe more buildings will need to be turned into living places. She is not an expert, but she just states that life evolves and changes. You cannot just keep rigid rules and sometimes you just have to be a little more flexible. Chairman Sheth and Colonel Ericson agreed. Colonel Ericson also replied that there are changes all the time, but the way they do changes are through regulations and ordinances, so they will reflect what the community wants at that time. That is the proper way to do it. A variance is not the way to go. Chairman Sheth replied that the Mrs. Duncan’s argument is absolutely true, but it would need to be presented before the front of the City Council meeting, not in front of the Board of Adjustment. The Board of Adjustment follows guidelines by the City Solicitor and the recommendations from the Planning Director, as well as the Board’s own 7

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 interpretation. Chairman Sheth mentioned again that the Board does not disagree with what is being said, but the Board of Adjustment is not the Board to change it. Mr. Senato mentioned that looking at the plan when the Norfolk Southern Railroad Company moved out and Mr. Raymond moved in he did not see an apartment or any bedding. The Certificate of Occupancy is not available or cannot be found. The City also states that there was a Certificate of Occupancy issued, but the Board does not have a copy due to time passed he presumed. There is also a letter he received this morning and he did not know whether or not the GSA who opposed this variance has any other comments to make at this meeting because they are not present. He would suggest or in his mind feel they should have a verbal conversation at this meeting as to whether they are for or against this variance other than just the letter. He is sure they have other comments. He would suggest perhaps they appear before the Board of Adjustment at another meeting. Also, when you talk about vacancies and homelessness, the City has a bad problem. In less than a year homelessness increased from 100 to nearly 350. Every building public, private and including the library has homeless persons floating around. He even has homeless persons camping across the river from where he lives in the winter. If there is security needed by any corporate entity, then that would need to be done through the hiring of security in his mind. You are in violation; the variance that is being requested is to turn this space into an apartment. He feels in his mind, if in fact this variance is granted then a precedent will be set in this City. One of which we would be opening a Pandora’s Box. Because if he was a businessman and owned property in that area or another and had the same problems then he would say wait a minute, I want to put an apartment in my building. The point that Colonel Ericson made and his remarks he concurs with, except that there was a violation. As far as using this as an apartment, he does not see anything shown that lets him know someone is living there other than the fact that it is an office work area space. In conclusion, he would strongly suggest that if there is any opposition by the GSA service that they be given a chance under oath at a meeting to present their point of view. Mr. Keller stated that his understanding with the Certificate of Occupancy is that upon the original completion of construction of that office building there would have been a Certificate of Occupancy issued. Mr. Keller asked if this was correct. Mr. Diaz and Mr. Hugg replied yes. Mr. Keller stated that at the time all the proposed uses would have been in accordance with the IO Zone and the appropriate zoning at that time to his understanding. With the Exhibit B, the office suite would certainly have been an allowable IO Zone property usage. It is not uncommon for business locations or office buildings to have a crew station if you will, gathering room, conference room typically referred to as such. Exhibit B still simply represents just that a suitable office suite conference room. It looks like a large table, a 12x12 office area with an associated bathroom that is not uncommon. To him this does not represent the suitable living quarters for human beings to occupy such as an apartment complex. Mr. Keller stated that a shortcoming of seeking an allowance for this tenant is this Board from his recollection has never approved an application for an occupancy to an individual as opposed to a broad suite approval for an apartment unit. While Mr. Raymond Williams may be the tenant 8

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 today, he may not be the tenant tomorrow. There would not be any kind of assurance what tenant or tenants would occupy it subsequently if allowed usage as an apartment. This span of time represents 13 years by the information provided. In some of the correspondence and the City’s Report, there is a reference to Norfolk Southern Railroad Company occupying that office suite for many years. He asked what was the term of their occupancy as an office suite? Mrs. Duncan replied she did not know. They are still in the building, but they no longer have their substation here. They have a small office that they use just for administration. In the past, when it was very active and was doing great business they had more need. Again, they now have a small office that was vacant. She guesses Mr. Duncan did not think about it when he allowed Raymond to live there. They have really been happy that Raymond has lived there. She knows that it is subjective, and the Board is not taking it into consideration, but it is okay. It would be a hardship not having someone in the building. It would be a hardship to have that space vacant when they have other vacant spaces that seem to be vacant for a long time. Mr. Keller questioned whether they had a formal lease with Norfolk Southern Railroad Company. Mrs. Duncan replied yes. Mr. Keller questioned whether they had any lease arrangement or rental agreement with Mr. Raymond Williams. Mrs. Duncan replied no. Mr. Keller asked if Mr. Raymond was technically an employee of the Duncan Center. Mrs. Duncan replied that he is a maintenance contractor for the Duncan Center. Mr. Keller asked if Mr. Raymond worked approximately 6 hours a day. Mrs. Duncan replied she would say so. He works officially 6 hours, but he is there most of the time. He is not on duty, although if something happens he calls them. Mr. Keller asked for clarity. It was clear that the applicant made no application to the City for a tenant or apartment usage; is that correct? Mrs. Duncan replied that is correct. Mrs. Duncan stated that it just came up that Raymond was having great difficulty in the building in which he was living. People were breaking in and he was very unhappy. He asked if he could live there and Mr. Duncan said yes. Nothing has been signed, there are no leases or anything like that. Colonel Ericson asked about the hardship that was mentioned by Mrs. Duncan because he did not understand what the hardship is and if the hardship by Mr. Williams could be overcome by living somewhere else with a cell phone or hiring three (3) security guards on shifts to cover the building. There are other ways to do it. Mrs. Duncan replied she is sure. Chairman Sheth asked for clarity if he understood that the City took it in good faith with your application for offices. They (the owners) gets all the benefits until someone complains. If no one had complained to the City, he asked if this would still be going on, is that right? Mrs. Duncan replied right. Colonel Ericson asked Chairman Sheth what was the complaint about or the issue? Mr. Diaz 9

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 replied that he believed that the original complaint was actually from the GSA that they believed there was a residence in the building. Mrs. Duncan reiterated a residence in the building. She finds this very surprising because they did not hear about this. They certainly respect the GSA. Without the GSA there would almost be no building there. Obviously, they do not want to upset the GSA, but they did not know this. Mr. Senato questioned if there were City Inspectors in the room. Chairman Sheth replied that a Code Enforcement Inspector was present. Mr. Senato questioned whether the inspector who inspected the building asked to see the Certificate of Occupancy and if the original Certificate of Occupancy was researched and could not be found. Chairman Sheth replied that he thinks Mr. Senato is mistaking this. No one can occupy the building without a Certificate of Occupancy. There is a license fee for each tenant. The question is not about the Certificate of Occupancy. Mr. Senato stated maybe not but just for the record. Chairman Sheth replied the applicant always had a Certificate of Occupancy. Mr. Hugg replied that the building upon completion or tenant fit out would have received a Certificate of Occupancy based on an original set of plans and being consistent with the zoning. The zoning is IO and the zone does not permit a residential component. Everyone agrees that the record plan clearly shows this as an office space; that is the trigger question. The Code Enforcement Officer and Fire Marshal who were involved are present today and can give their testimony if needed. As previously stated by Mr. Diaz, the initial action was a complaint from a tenant regarding a residential use of the building. That would have triggered an inspection that would determine whether or not that was in fact taking place. From that becomes the question, it is being used for a residential purpose and that is a use violation. There are only two (2) ways to address the issue. One is with a Use Variance which the Board of Adjustment rarely ever considers and it very unusual. The Board deals with space variance, setbacks, etc. all the time, but Use Variances are very unusual although the Board has the authority to deal with them. Or it is to have the actual underlined Zoning Ordinance changed to permit certain kinds of residential uses in an IO zoning district. Absent one of those two things the residential use itself today is not allowed by the Zoning Ordinance. Chairman Sheth asked if Mr. Williams paid rent? Mrs. Duncan replied yes, Mr. Williams pays rent that includes heat, air conditioning, and Internet. Chairman Sheth stated that City Codes suggest any rental property needs a license. The license fee is annually. Chairman Sheth mentioned that inspections occur on rental properties. Mrs. Duncan stated that is something that was previously mentioned. Others might want to do the same thing, she honestly did not see that being a bad idea. She really thinks Downtown needs to be changed perhaps with some residential units, it would be better than having empty buildings. Chairman Sheth agreed but stated that the decision is determined by City Council. He strongly 10

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 recommends it and it will justify that we need something like that. Right now, the Board hands are tied up. Mrs. Duncan said okay. Mr. Hugg mentioned for the record, a number of the commercial zoning districts in this immediate area and Downtown generally do allow for mixed use including residential. The residential could obviously be a noninvolved tenant, caretaker, custodian or whatever who is occupying a residential space. The issue before you is that in this particular structure as zoned, as built, and as approved a residential use is not permitted. This issue could have come up had the Duncan’s applied for a Rental License to rent it as an apartment. We would be essentially in the same situation today because the first thing the Code Enforcement Officer would have looked at is what does the zoning allow and if it allows the use of a residential rental license. The answer would have been no. We would have been in the same situation as we are today. Mrs. Barrett wanted to comment on the hardship. Raymond obviously would have a hardship. Mr. Duncan would also have a hardship because he would be losing that rent and they have plenty of rental spaces with no tenants; so, they would ultimately be losing a tenant. There are other tenants in the building that have not complained that would also feel a hardship by not having Raymond there. There would be a hardship felt. She did not think it would be a hardship felt if the variance was granted only because she could not see it setting a precedent for other already zoned businesses because this was already built. It is not like they made any changes to make it residential. As people would ask for the variance it would then be building. Chairman Sheth asked Mr. Pepper if he could comment. Mr. Pepper asked which part the Chairman wanted him to comment on. Mr. Pepper stated that every decision the Board establishes is a precedent. Chairman Sheth stated that and this is what we follow. Mrs. Duncan asked if they applied through some other way that he can stay there. In other words not ask for a variance but apply to have a multi-use facility. Mr. Hugg replied no, what we are saying is the only way this matter can be resolved that would allow Raymond to stay there would be if this Board issued a use variance and state that it is a unique circumstance not otherwise contemplated in the IO Zoning District that would allow you to do it. Or the City Council with the recommendation of the Planning Commission could consider an ordinance as a text amendment to the Ordinance that will allow residential uses in the IO District. It was done a number of years ago in the C-1 and C-2 Commercial Zones mostly to encourage residences over top of stores; that is more of a Mixed Use. Mrs. Duncan stated that either one of those would be fine with her. Chairman Sheth suggested after the meeting Mrs. Duncan could speak with Mr. Hugg and he will be glad to help you. The Board cannot discuss contrary to any of the issues on this meeting. Mrs. Duncan replied okay. Colonel Ericson asked how long the process would take if she went before with an argument to City Council to change it. Mr. Hugg replied that the matter would need to go before the Planning Commission and to City Council as a first and second reading of a text amendment. You would be looking at a minimum of 60-90 days assuming that the Planning Commission recommends it 11

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 and the City Council approves it on the second reading. This does not count any staff time or legal time in writing or clarifying definitions. It is not something that would happen in the next few weeks or months. It is a longer-term process. Colonel Ericson questioned if in fact the Board voted against the variance could the Board put a provision in the motion that Raymond could stay in the building until (90-days) the issue is resolved through City Council. Mr. Hugg replied no, but he would refer the question to Mr. Pepper. Mr. Hugg replied also that in his mind you would be creating zoning text outside the Board’s authority. Mr. Pepper replied that he agreed with Mr. Hugg because it would be inappropriate. Chairman Sheth commented that if anything goes wrong and they have already been advised by the FBI Agents that they are against; if something goes wrong what would be the City position. Colonel Ericson replied that he wanted it to be on the record. Mrs. Duncan questioned the way the letter reads from the GSA. She stated that it sounds like they are talking about a residential housing unit. She would not call it a residential housing unit and she wonders if they were aware of what kind of unit they were talking about. She cannot see how this is affecting the area. Chairman Sheth replied if he was in her position he would ask his attorney regarding the lease agreement with GSA. There could be something in the nondisclosure that could jeopardize your lease agreement. He wanted to make her aware of it. 10:04 (09) Mr. Keller noted that Mrs. Duncan has somewhat of a portfolio of available rental units within the Duncan Center. Mrs. Duncan replied that she did not have it with her, but they do have a portfolio. Mr. Keller questioned whether they ever represented office suite 001 as an available office suite or as a rental. Mrs. Duncan replied no. Mr. Keller asked why not? Mrs. Duncan replied because Raymond is living there. Mr. Keller asked that at the conclusion of Norfolk Southern Railroad Company tenancies was it at that time advertised? Mrs. Duncan replied no. It is very specific space and she does not know how many crash pads are needed in this town. She doubts that there is much need for a place like that. Mr. Keller stated that it represents itself as a 12x12 office with a meeting room and an available restroom facility. Mrs. Duncan replied that it is in the basement with no windows. Not very many people who are going to pay any kind of rent would want to be in a basement with no windows. It is not going to be very rentable. Chairman Sheth asked Mr. Hugg if he or the Board had any question for the Code Enforcement Officer or Fire Marshal who is present. If we do not have any questions for them, they can be excused. Colonel Ericson asked who they were. Mr. Hugg replied Ron Coburn is the Code Enforcement Officer and Jason Osika is the Chief Fire Marshal for the City of Dover. Ron would have been 12

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 the one that would have initially addressed the complaint as a code violation and would have consulted with the Fire Marshal in terms of whether that particular space met requirements for occupancy as a residential use. Colonel Ericson asked if any of their testimony includes something that the Board had not considered or talked about to this point. Mr. Senato stated that he had a question for the Fire Marshal. Representative: Mr. Jason Osika, City of Dover Fire Marshal Mr. Osika was sworn in by Mr. Pepper. Mr. Senato asked a question regarding the basement area and the safety of the individual who lives there whether he pays rent or not. He is under the impression that there are no windows in the area. In the event of a fire, smoke, or flooding what is the egress or regress for this lower basement area and the safety concerns regarding the fire department. Mr. Osika replied that what he could remember there are three (3) exits which are stairwells out of the basement area. The building is also sprinkled and has a fire alarm as well. When you go from a safety aspect, it is a pretty safe building. Mr. Senato stated that he was more concerned with the one area down in the basement. He wanted to know if the individual had quick exit access for his own safety in case of a fire, smoke, or flooding. Mr. Osika replied yes. There are three (3) different exits. Mr. Keller questioned whether this office building in and of itself had tenants that occupy the premises 24- hours a day. Mr. Osika replied he was not sure. Mr. Keller questioned absent office occupants with this residential apartment tenant would you supposed it poses a greater risk to the safety and security of that building on a 24-hour basis. Mr. Osika replied that the only thing he would be able to comment on is the Life Safety aspect. He would not be able to speak on the security aspect. Chairman Sheth opened the public hearing. Chairman Sheth closed the public hearing after seeing no one wishing to speak. Chairman Sheth questioned if there was any additional correspondence for the record. There was no other correspondence. Mr. Keller pointed out from his understanding from a legal aspect that the Board is in fact allowed to have the written letter represent itself as an approved appearance. Mr. Pepper replied yes, the Board has traditionally accepted correspondence that supports an application or opposes an application. The Board should give it such weight as it deems appropriate. Mr. Hufnal commented that Mrs. Duncan gave an excellent testimony and even though he 13

CITY OF DOVER BOARD OF ADJUSTMENT JUNE 20, 2018 sympathizes with her wishes and desires of that area the Board’s hands are tied by the Ordinance as to what they can do. He appreciates all of her efforts and he wishes that she will continue to pursue other aspects of this so that they can hopefully end up with what they desire. Under the current circumstances, the Board is sort of limited as to what they can approve. Chairman Sheth stated that he agreed with Mr. Hufnal and suggested that Mr. Hugg recommend to the Mayor regarding this kind of situation to change the Ordinance the proper way so that the future problem can be solved. Otherwise, we will have the problem everyday with the Board and variances and we will have the same results. Mr. Hufnal replied that he also agreed with Chairman Sheth because the Board could be faced with other circumstances in the future unless we look at the Ordinance and change something in that aspect of it we could have future cases similar to this. Chairman Sheth stated that perhaps they could figure out that something could not go on for so many years and then they find out that there are always exceptions. Mr. Hugg replied that he did not have a clean and clear answer to the question, but he is sure that there are activities that go on undetected for an extended period of time for the simple reason that nothing has triggered them coming forward. In this case, it is a perfect example of where the applicant did not come to the City asking for a rental license to get an apartment in the building so that did not trigger that question being asked. Had there not been a complaint from a tenant there would not have been an investigation that would have been required. Essentially, other than routine business licenses and annual inspections of that nature, he does not know that even in a fire inspection if this matter would have necessarily been raised. There are probably multiple situations where this does occur with all respect to the applicant innocently. He does not believe that there was any intention on the part of the applicant to hide the fact or if it occurred to them that this was an issue. We find these situations in a number of the provisions in the Zoning Ordinances of the City Code that things sometimes are not fully developed or thought about because it did not come to our attention to start with. He reminded the Board that their decision today is limited to this application for a Use Variance for this purpose in this building. If the Board wants to recommend that we do something beyond that then we need to be careful of how it is phrased. Colonel Ericson asked for clarification if the GSA letter was part of the official record. Mr. Pepper replied yes. Colonel Ericson moved to disapprove variance application V-18-03 based upon the information given in a letter from GSA that was given to them by Mr. Diaz and the requirements for a Use Variance has not been met in his mind and furthermore there is another solution to this problem. The motion was seconded by Mr. Senato. The motion unanimously carried 5-0. Meeting adjourned at 10:16 A.M. Sincerely, Maretta Savage-Purnell Secretary 14