BOA 3-20-19

CITY OF DOVER BOARD OF ADJUSTMENT MINUTES March 20, 2019 A Regular Meeting of the City of Dover Board of Adjustment was held on Wednesday, March 20, 2019 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 Mr. Diaz, Mr. Swierczek, Mr. Hugg, City Solicitor Mr. Rodriguez, and Mrs. Savage-Purnell. APPROVAL OF AGENDA Mr. Keller moved to approve the agenda as submitted. The motion was seconded by Mr. Hufnal and unanimously carried 5-0. APPROVAL OF THE REGULAR BOARD OF ADJUSTMENT MEETING MINUTES OF JANUARY 23, 2019 Colonel Ericson moved to approve the meeting minutes of January 23, 2019 with the necessary corrections. The motion was seconded by Mr. Senato 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 Agenda. There are three (3) applications on the agenda under New Business. Each 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. COMMUNICATIONS & REPORTS The next Board of Adjustment regular meeting is scheduled for April 17, 2019 at 9:00am in the City Council Chambers. NEW BUSINESS Applicant #V-19-01 545 North DuPont Highway. Carla Menard and Ken Sisk have requested a variance from the requirements of the Zoning Ordinance, Article 5 §4.7 pertaining to permitted signs. Specifically, the applicants seek to permit one (1) additional wall sign over the maximum two (2) wall signs allowed for a building with a single street frontage. The property is located on the east side of North DuPont Highway north of Townsend Boulevard. It is 0.86 acres +/- in size and is currently occupied by a Panera Bread Restaurant. Subject property is zoned C-4 (Highway Commercial

CITY OF DOVER BOARD OF ADJUSTMENT MARCH 20, 2019 Zone) and subject to the SWPOZ (Source Water Protection Overlay Zone). Tax Parcel: ED-05- 068.09-01-34.01-000. The owner of record is Dover DE Retail, LLC C/O Lemek Slower Lower LLC. A substantially similar variance was reviewed by the Board of Adjustment on November 15, 2017 and received partial approval. A requested revision to the partially approved variance was subsequently reviewed by the Board on December 20, 2017 and was denied. Both the approval and the denial have expired without the approved sign being installed. 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 March 10, 2019. The public was notified in accordance with regulations. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Mr. Diaz gave a summary presentation of the Variance Application Request (wall signage at Panera Bread). A substantially similar variance was reviewed by the Board of Adjustment on November 15, 2017 and received partial approval. A requested revision to the partially approved variance was subsequently reviewed by the Board on December 20, 2017 and was denied. Both the approval and the denial have expired without the approved sign being installed. Colonel Ericson asked what the difference of the sign was from the 2017 to now. Mr. Diaz replied that the difference is the 94 square foot sign is no longer part of the application. Colonel Ericson asked if the 35.67 square foot sign was the same sign and it states Panera Bread. Mr. Diaz replied yes, it is the same sign and it states Panera Bread. It does not state drive-thru which was the 47.27 square foot version. Mr. Hufnal questioned if the 94.74 square foot sign was a mural that was on the back of the building that was denied. Mr. Diaz replied yes. Mr. Hufnal questioned if the 35.67 square foot sign was just the Panera Bread sign on the front before they made the adjustment to add the “drive-thru”. Mr. Diaz replied yes, that is right. Mr. Hufnal questioned if they had already issued a Sign Permit #17-2206 for the 35.67 square foot sign. Mr. Diaz replied yes, that is also right. Mr. Keller questioned if the approvals and denials of 2017 have expired and it may be a technical point, but the decisions do not expire. Mr. Rodriguez replied that is correct. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Representative: Mrs. Kim Diehl, Kent Sign Company Ms. Diehl was sworn in by Mr. Rodriguez. 2

CITY OF DOVER BOARD OF ADJUSTMENT MARCH 20, 2019 Ms. Diehl testified that as explained by Mr. Diaz the sign variance was issued for “Panera Bread”. There was some confusion because they wanted “Panera Bread drive-thru”. They came back. She was not involved in any of these proceedings but gathered it from reading the paperwork that it was denied. She does not think that they understood that they could then still install “Panera Bread”. They came to her a few months ago and said they wanted to put up “Panera Bread drive- thru” on the north facing end of the building. She mentioned to them that it was denied once before, and she thought they should just ask for “Panera Bread”. It is obvious that it is a drive-thru lane on that side that can be seen; so, they agreed to just go ahead and ask for “Panera Bread” once again. We cannot put up a monument sign which is allowed at that location. Per Code, we are allowed two (2) building signs and one ground sign. The ground sign cannot be placed because of the placement of the building. Therefore, they would like to install a third sign on the building. There is an access road that comes right next to us, but it is not an actual named road. If it was a named road, they would be allowed four (4) building signs as is the Longhorn Steakhouse which is on the other end of the property. Because Longhorn Steakhouse front another road, they are allowed the four (4) signs which did not require them to request a variance. So, Longhorn Steakhouse has four (4) building signs and one (1) ground sign. We are keeping with the character of that area. Colonel Ericson questioned that normally a large company like yours can get a signage up right away, but this was delayed over a year and had to resubmit. He asked Ms. Diehl if she was aware of the reason for the delay. Ms. Diehl replied she was not involved in the first install. They did not install any of the Panera Bread signage. She is not 100% sure why the sign did not get installed except she was told there was some confusion as the “Panera Bread” was approved and “Panera Bread drive-thru” was denied. She does not think that the other people that were involved in all this understood that they could then go back and install the “Panera Bread”. Again, she is not 100% sure as she is just getting involved about 2 months ago with any of this. She is not sure who the original sign company was who installed all that. 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. Hugg asked for clarification as he reviewed the Exhibits that there are existing signs on Panera Bread facing Route 13 and facing south and the north wall does not have any signage on it. Ms. Diehl replied that is correct. Chairman Ericson moved to approve variance application V-19-01 based upon the testimony given and the analysis by the Staff. Furthermore, we approved this a year ago and this was just a matter of delaying beyond the expiration time. The motion was seconded by Mr. Keller. The motion unanimously carried 5-0. Applicant #V-19-02 1160 South DuPont Highway and 59 Roosevelt Avenue. Richard W. Arndt and Patricia S. Arndt have 3

CITY OF DOVER BOARD OF ADJUSTMENT MARCH 20, 2019 requested variances from the requirements of the Zoning Ordinance, Article 4 §4.15 pertaining to the bulk standards of the C-4 (Highway Commercial Zone). Specifically, the applicants seek to decrease the minimum required lot depth of 1160 South DuPont Highway from 150 feet to 144 feet, and the minimum required lot width from 150 feet to 135 feet. For 59 Roosevelt Avenue, the applicants are requesting a decrease of the minimum required lot depth from 150 feet to 90 feet, a decrease of the minimum required lot width from 150 feet to 50 feet, and an increase in maximum lot coverage from 75% to 87%. The variances are being requested so that approximately 3,150 SF of land may be transferred from 59 Roosevelt Avenue to 1160 North DuPont Highway, and the Roosevelt Avenue property then sold. Subject properties are zoned C-4 (Highway Commercial Zone). Tax Parcels: ED-05-077.17-05-75.00-000 and ED-05-077.17-05-74.00-000. The owners of record for both properties are Richard W. Arndt and Patricia S. Arndt. Mr. Swierczek gave a summary presentation of the Variance Application Request for lot dimensions and lot coverage. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Chairman Sheth mentioned that his businesses have used H&H Electric but does not see that as a conflict of interest. Mr. Rodriguez replied that was okay. Representative: Mr. Adam Perza, Attorney, May & Perza, P.A., and Mr. Richard W. Arndt, Owner H&A Electric Company. Mr. Perza stated that it was a very good summary given by Mr. Swierczek and they agree with everything that was indicated by Mr. Swierczek for the City. We hope that the Board of Adjustment would adopt the application based on the comments made by the City Planning Office. The applicant is trying to consolidate its use of the property. As the application indicated, a new building was built on the neighboring property which was the 1160 North DuPont Highway several years ago. In submitting the survey plot/the Site Plan to the City, the dimensions of the new lot once you move the property are nonconforming with the City Code as well as the current dimensions. We are already in nonconformance and we are just asking to change the nonconformance to continue the nonconformance in the same way it has been used for the past 50 years. The applicant has operated a business on this property probably since the late 60’s or early 70’s. There is no change in operation intended. The same business is conforming with the C-4 use of the Code. There will be no impact on the neighboring communities. To our knowledge, there have been no comments made by neighbors about the change. The change is not observable to anyone else in the world unless you can look at a Zoning Map. By removing the outbuildings that are existing on the 59 Roosevelt property, you will allow the present owners the option of basically selling the property to a third party down the road who will then want to use the entire property for their own use without having to worry about other buildings or liabilities on that property. It cleans up the issues and the corner of the property location and makes it easier. The only reason for this is because the resulting plan that was submitted for the new boundary line does not conform for the Code. The current lines do not conform to the Code either. These properties have been here for a hundred years and the code 4

CITY OF DOVER BOARD OF ADJUSTMENT MARCH 20, 2019 was not adopted until many years after all that. At that time the character of neighborhood layout was residential and now it is all commercial. Right across the street is the car dealership and the McDonald’s. There really is not an impact one way or the other to what would be the preapplication, preapproval and post approval. Again, we agree with the application and the comments of the City. Mr. Hufnal asked if the area has an approved access by DelDOT. Mr. Perza replied that when the City approved the renovation of the building on the corner at the 1160 North DuPont Highway that access had to be approved 4-5 years ago. Overtime DelDOT has taken time more and more of this land because it keeps rounding out that curb and eating into it. The existing parking and driveway allocations have been approved by DelDOT and the City. Mr. Hufnal mentioned his concern if you sell off 59 Roosevelt Avenue and that clearly has a good access off Roosevelt Avenue and with DelDOT if they did any expansion to that road would they constrict that entrance because that is a good access. Mr. Perza replied that there is no way of knowing what DelDOT will do. He would envision that DelDOT would have to make accommodation to the current property owner to continue using that property. The applicant would have significant problems with that also if they could not get clients and themselves to their own office. Could this happen, yes, but anything is possible with DelDOT. There is no known expansion at this time. Mr. Keller had a question with the plan as prepared and somewhat in conjunction with the question raised by Mr. Hufnal. He asked if in the paved parking area if one of them was a handicap space. However, a large portion of the paved parking area extends into the existing right-of-way of US 13 south bound and the radial entrance to the property is more southerly and/or westerly. He wanted to know if the plan showed the existing paved parking area or whether it is a sketch of a future expanded parking area for 1160 North DuPont Highway. Mr. Perza replied that the parking areas that are identified on the Site Plan are existing and they preexisted the modifications of the curb made by DelDOT. When DelDOT basically encroached and rounded out the curb and switched it, they switched it into an area that was previously laid out in conformance which is no longer into conformance. The parking areas that you currently see do cross the line (DelDOT property line), but DelDOT was aware of that when it was done to allow the applicant to continue to use the premises. Mr. Richard W. Arndt was sworn in by Mr. Rodriguez. Mr. Arndt testified that there was another entranceway into the 1160 North DuPont Highway property off the right-hand turn lane. DelDOT wanted them to close it up and it turn gave them the right to have the parking area extend behind the right-of-way. That was their trade off because they did not want the entranceway in there at all. Mr. Perza mentioned that he did not think that DelDOT would ever ask for nor would it be beneficial to increase the arc circle. DelDOT does not want another entrance onto Route 13 from this so they are not going to run around the driveway to reconnect to Route 13. Mr. Senato mentioned that it was closed off and this is when they approved the procedure and 5

CITY OF DOVER BOARD OF ADJUSTMENT MARCH 20, 2019 turned it back over to the City of Dover. Mr. Keller asked if this was by virtue of some written agreement. Mr. Arndt replied that the only thing that is written about it is “we approve it as submitted.” Mr. Keller asked if it was the entrance or the parking area that is within the existing right-of- way. Mr. Arndt replied the parking area as submitted on the plot plan. Mr. Perza asked if it was 2014-2015. Mr. Arndt replied it went back to 2006. Chairman Sheth asked if the same building (59 Roosevelt Avenue) was still being rented. Mr. Arndt replied yes. Mr. Keller mentioned that his primary reason for raising the question is because DelDOT or Federal Highway Administration would have required a formal air space agreement approved by the FHA and DelDOT for any utilization by a private entity then the existing right-of-way. He asked if there was any such agreement or if this was a proposed parking area. Mr. Perza replied in researching the boundary line for this application for the Board of Adjustment they did not go back into the property history to pull any types of agreements that had been made with DelDOT, FHA or Federal government at all. He could not state whether any federal agreement was reached or not. He could state that the previous Site Plans that illustrate the existing parking and movement arrangements of record were approved. He did not know if they reference any type of FAA agreement. Mr. Keller suggested to it might be a good idea to do so for liability purpose and private utilization of the existing right-of-way. For example, auto dealerships line up their cars for sale along the edge of the roadway within the right-of-way. He knows that this is a prohibited practice by virtue of DOT’s program, but it might be something that may or may not have an impact on today’s hearing but worthwhile in asking. Mr. Swierczek mentioned he believed that the premises at 1160 North DuPont Highway was built in 2012. Mr. Arndt replied 2014. Mr. Swierczek mentioned it would have been part of an Administrative Review process and DelDOT would have been involved. In order for an Administrative application to be approved, DelDOT would have had to approve it as well. This current variance application would not be proposing any sort of new entrances or parking lot layouts. The Site Plan is presented as it is intended to remain minus the lot line adjustment. Mr. Perza mentioned that the only change is the back-corner lot line adjustment. Mr. Keller asked as the plan illustrates would any vehicular access for 59 Roosevelt Avenue change if this application was to be approved. Mr. Perza replied that all vehicular access to 59 Roosevelt Avenue would be from the existing entrance at 59 Roosevelt Avenue. There is no change in paving, parking, driveway location or access ways to get into it. It is exactly the way it is without change. The only change is the back-property line to move the outbuildings over to the 6

CITY OF DOVER BOARD OF ADJUSTMENT MARCH 20, 2019 neighboring property. Mr. Keller asked if he would plan to have the associated cross easements. Mr. Perza replied yes, there was an easement drafted and submitted to the City. The City will most likely review the easement as part of the Minor lot Line Adjustment process. If this application is approved, they will continue with the application process through the City of Dover Planning Department. Mr. Keller asked for clarification of Mr. Swierczek’s previous statement with regards to the new application today because otherwise he was wondering why that simply could not be transferred and it would remain in the nonconforming status. Mr. Swierczek replied that is why the applicant is here today. Normally, it would be an Administrative process outside of the Board of Adjustment, but it’s because of the proposed change it would simply be a change from one nonconforming layout to another nonconforming layout. It is the existing nonconforming that brings it to the Board of Adjustment first because they do not have the physical capacity to bring the properties into conformity, that is the reason they are before the Board of Adjustment today. Mr. Keller stated that he understood that, but he thought otherwise that property could be transferred. But with it being a nonconforming property that such a transfer could not increase the degree of nonconformity as opposed to being venturing into a matter of them having to bring it into compliance for an otherwise straight sale. Mr. Swierczek mentioned that generally speaking in terms of if there were setbacks that were going to be increased in its nonconformity then that would be the issue. The problem is that as both properties are not in conformity there is no ability to move the property line without in some capacity increasing the nonconformity. Mr. Keller stated that he understood. 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. Hufnal mentioned that the Planner did an excellent job in summarizing the application. It is a difficult case; and with the complexity of it, Mr. Swierczek did a great job. Mr. Hufnal moved to approve variance application V-19-02 based upon the testimony given and the evidence presented by Staff. The motion was seconded by Mr. Keller. The motion unanimously carried 5-0. Applicant #V-19-03 106 Willis Road. Howard Joseph has requested two variances from the requirements of the Zoning Ordinance, Article 4 § 4.3 pertaining to the bulk standards of the RG-2 (General Residence) Zone. Specifically, the applicant seeks to subdivide the property into two duplex lots each with a lot area of 3,750 SF, which is less than the minimum 5,000 SF required under the zoning. The applicant also seeks to permit a 5-foot side yard on each lot, which is less than the 7

CITY OF DOVER BOARD OF ADJUSTMENT MARCH 20, 2019 minimum 10-foot wide side yard required under the zoning. The 0.17-acre vacant property is located on the west side of Willis Road, north of Division Street. Subject property is zoned RG-2 (General Residence Zone). Tax Parcel: ED-05-068.19-01-23.00-000. The owner of record is 1944 Builder LLC. Mr. Diaz gave a summary presentation of the Variance Application Request related lot area and setbacks. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Mr. Keller asked what was the approximate time for the processing of the applicant’s request. Mr. Diaz replied it depends on when the applicant submits the application and afterwards how soon they can revise the plans to show the conditions of the approval that the Planning Commission gives. Then of course, they would need to get a Building Permit for the structure itself. Between the application deadline for the Planning Commission and the Planning Commission meeting is typically 1 ½ months. How long after that from the Planning Commission the conditional approval to the final approval of the project varies and could be anywhere from 3-6 months. Sooner if the plans can be revised quickly. Mr. Keller mentioned as a notice or warning for the applicant, if this variance request was approved today would those actions be considered a trigger so that the approval would not expire a year from now if physical construction had not started. Mr. Diaz replied that the next steps have to be taken within a year and that would mean submission to the Planning Commission. It would not mean that the physical construction of the dwelling has to happen within a year. Representative: Mr. Howard Joseph, Owner. Mr. Howard Joseph was sworn in by Mr. Rodriguez. Mr. Joseph testified that the variance requested is to allow a decrease in the minimum lot size from 5,000 SF to 3,750 SF and to allow a decrease in the minimum side yard setback from 10 feet to 5 feet to put a duplex on the property. Mr. Keller mentioned that one year comes and goes fairly quickly when you are anticipating planning, applications, construction, etc. He only made that point so that we would not be a year from now coming back stating that “I really did not get started yet”. There are certain steps that have to be taken to allow you to retain that application if it was approved. 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. 8

CITY OF DOVER BOARD OF ADJUSTMENT MARCH 20, 2019 Mr. Keller moved to approve application V-19-03 as presented noting the City’s thorough review in the recommendations for approval and noting that the proposal would be in keeping with the nature and allowable uses of the existing Zoning Code. It is one of the very few remaining undeveloped lots in the neighborhood and it would lend for continuity of the type of structure within that neighborhood. There is no likelihood that it would detrimental to any neighboring properties or owners in his estimation. The motion was seconded by Mr. Hufnal. The motion unanimously carried 5-0. The meeting was adjourned by Mr. Hufnal and seconded by Mr. Colonel Ericson at 10:05 A.M. Sincerely, Maretta Savage-Purnell Secretary 9