BOA 9-18-19 minutes

CITY OF DOVER BOARD OF ADJUSTMENT MINUTES September 18, 2019 A Regular Meeting of the City of Dover Board of Adjustment was held on Wednesday, September 18, 2019 at 9:00 A.M. with Chairman Sheth presiding. Members present were Chairman Sheth, Mr. Keller and Colonel Ericson. Mr. Senato and Mr. Hufnal were absent. Staff members present were Mr. Swierczek, Mr. Hugg, Mrs. Harvey, 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 Colonel Ericson and unanimously carried 3-0. Mr. Senato and Mr. Hufnal were absent. APPROVAL OF THE REGULAR BOARD OF ADJUSTMENT MEETING MINUTES OF AUGUST 21, 2019 Mr. Keller moved to approve the meeting minutes of August 21, 2019 with the necessary corrections. The motion was seconded by Colonel Ericson and unanimously carried 3-0. Mr. Senato and Mr. Hufnal were absent. OPENING REMARKS CONCERNING APPLICATIONS Mr. Dave Hugg, Planning Director stated that the meeting today will be conducted in accordance with the Agenda. There are two (2) 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 application 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 October 16, 2019 at 9:00am in the City Council Chambers. OLD BUSINESS Applicant #V-19-07 805 and 815 Forest Street, and 726 West Division Street. Victor Giangrant has requested a variance from the requirements of the Zoning Ordinance, Article 4 §4.15 pertaining to the maximum lot coverage in the C-3 (Service Commercial) Zone, and Article 3§27.67 pertaining to the lot coverage, front, side and rear yard setbacks/landscaping requirements for the Corridor Overlay Zone (COZ-1). They are requesting the above variances to be able to utilize the entirety

CITY OF DOVER BOARD OF ADJUSTMENT SEPTEMBER 18, 2019 of the two lots addressed as 815 Forest Street and 726 West Division Street for their expanded car wash facilities, namely thirteen (13) new parking spaces with vacuum stations. Subject properties are zoned C-3 (Service Commercial Zone) and are subject to the COZ-1 (Corridor Overlay Zone). Tax Parcels: ED-05-076.08-01-40.00-000, ED-05-076.08-01-38.00-000, ED-05- 076.08-01-39.00-000. The owners of record are Clean Cars Inc. and Melinda F. Giangrant. This Application is continued from the August 21, 2019 Meeting of the Board of Adjustment. The Public Hearing remains open. • At the Request of the Applicant, Application V-19-07 will remain postponed as they are evaluating their proposed project for potential revisions. Mr. Hugg mentioned that Application V-19-07 under Old Business at the request of the applicant will not be heard today. They have asked to have some additional time to reassess the layout and take into account the comments from both the Board and Staff. The application is postponed at the request of the applicant. Mr. Keller moved to postponed application V-19-07. The motion was seconded by Colonel Ericson. The motion unanimously carried 3-0. NEW BUSINESS Applicant #V-19-08 731 and 801 West Division Street. Central Delaware Housing Collaborative has requested variances from the requirements of the Zoning Ordinance, Article 3 §27.66 pertaining to the maximum number of stories and height in the COZ-1 (Corridor Overlay Zone); Article 3§27.63 (c)(ii) pertaining to the required 12-foot wide landscape buffer required in between building and the parking lot and drive areas; Article 3 §27.67 pertaining to open space and landscaping requirements in the COZ-1; and from Article 6 §5.3 pertaining to supplementary parking regulations for multiple dwellings. They are requesting these variances because they plan to construct a multiple-dwelling unit structure (apartments) to contain twelve (12) units that will be three (3) stories and thirty-nine (39) feet in height along with associated site improvements. The subject properties are zoned IO (Institutional and Office Zone) and subject to the requirements of the COZ-1 (Corridor Overlay Zone). Tax Parcels: ED-05-76.08-01-34.00-000 and ED-05- 076.08-32.00-000. The owner of record is AID in Dover, Inc. and equitable owner is Central Delaware Housing Collaborative. This site was recently the subject of a Rezoning Application to permit the rezoning of both properties from C-2A (Limited Central Commercial Zone) to IO (Institutional and Office Zone) while remaining subject to the requirements of the COZ-1 (Corridor Overlay Zone). This application received Planning Commission recommendation for approval in May 20, 2019 and the rezoning was subsequently approved by the City of Dover City Council at their June 10, 2019 Meeting. 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 September 8, 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. 2

CITY OF DOVER BOARD OF ADJUSTMENT SEPTEMBER 18, 2019 Mr. Swierczek gave a summary presentation of the Variance Application Request for a variance from the requirements of the Zoning Ordinance, Article 3 §27.66 pertaining to the maximum number of stories and height in the COZ-1 (Corridor Overlay Zone); Article 3 § 27.63 (c)(ii) pertaining to the required 12-foot wide landscape buffer required in between building and the parking lot and drive areas; Article 3 §27.67 pertaining to open space and landscaping requirements in the COZ-1; and from Article 6 §5.3 pertaining to supplementary parking regulations for multiple dwellings. They are requesting these variances because they plan to construct a multiple-dwelling unit structure (apartments) to contain twelve (12) units that will be three (3) stories and thirty-nine (39) feet in height along with associated site improvements. The summary included references to the Staff Report on the Application. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Representative: Mr. Herbert Konowitz, Treasurer, Central Delaware Housing Collaborative and Mr. Brian Turner, Design Consultant, Mountain Consulting Inc. Mr. Herbert Konowitz and Mr. Brian Turner were sworn in by City Solicitor Mr. Rodriguez. Mr. Turner testified that with the building height on the submitted plans the goal is to provide twelve (12) units and the only way to do that is to provide a three (3) story building on the property. With the shared property line between 731 and 801 West Division Street, providing a buffer along that property line would not be feasible with the drive aisle and the parking situation that is shown along that shared property line; therefore, we have requested a waiver. With the layout and the goal of providing the twelve (12) units, we are trying to make the requirements for the IO Zone, as best we could as well as making everything to fit and along with still meeting the Fire Marshals requirements for the fire lanes and the separation between the buildings and the fire lanes. Colonel Ericson mentioned that he counted twelve (12) different variances. He asked if the applicant were to combine the two lots, which was stated that they were not, could they design the facility that would serve the purpose without getting all the variances. Mr. Turner replied that potentially the center variance would have gone away to not have to provide the buffer along the shared property line between 731 and 801 West Division Street. Due to the Collaborative’s, financial obligations and the deal with the owners of 801 West Division Street, we just could not combine the two (2) properties. Colonel Ericson asked what was exactly going into the emergency shelter verses the apartment building. Mr. Konowitz replied that he would give some background information on the situation. There is a tremendous need in Dover for housing for women. It has not been addressed and we attend to address it. He is the Vice-Chair of the Dover Interfaith Mission for Housing. The Board of Directors of Dover Interfaith Mission for Housing decided that they did not want to go any further as far as helping out with the problem in Dover. They wanted to concentrate on Dover Interfaith Mission for Housing. They spun off another company which is the 501c3 and it has a separate Board of Directors. The project at 731 West Division Street is a building which 3

CITY OF DOVER BOARD OF ADJUSTMENT SEPTEMBER 18, 2019 they thought they would be using for transitional housing. Unfortunately, over a period of time the building has been ransacked, which is amazing to him because the Police Department never picked it up. Copper, toilets, sinks, carpets, and anything that had value was removed from the building. They came to the decision of demolishing the building due to the break-ins and building a more modern facility that will have twelve rooms and rent will be charged. The rooms (apartments) will be offered to twenty women who are financially able to pay rent. Without the facility it will be difficult to make the whole thing work. We are proud to step up to the front and they feel confident that they can make it work. Presently, Dover Interfaith Mission for Housing is home to 126 men and they have been in business for 12 years. It is strictly a volunteer organization except for the overnight supervisors. This new building will be running the same way. Mr. Keller asked if Mr. Konowitz was a principal in AID in Dover Inc. Mr. Konowitz replied no. Mr. Keller asked if he was in the Collaborative? Mr. Konowitz replied yes, he is the Treasurer. He added that he did not know a lot about the organization AID in Dover Inc., but it was started many years ago and due to finances and other issues they had to close their doors and walk away from the property. We had to invest money to fix the frozen pipes and we have been fortunate to get together with the Delaware State Housing Authority and taking over a loan which basically never needs to be paid back as long as it is ran as a shelter. Chairman Sheth asked who was financing is it Delaware State Housing Authority? Mr. Konowitz replied that there is a $220,000 loan to AID in Dover and we are taking that over. The idea is if we keep running it as a shelter it will never need to be paid back. We just received a grant from the Longwood Foundation in the amount of $150,000. Mr. Hugg mentioned for clarification that is part of the reason the two properties could not be combined because the terms of the loan would be violated. The loan is specific to the project at 801 West Division Street. This is the reason the two properties must remain separate. To get to the engineering consultant’s point, that forces then a variance that relates to the center driveway or aisle which would have otherwise been part of their normal parking. The real variance is for the 3-story building and 39-foot height, the width of the sidewalk in front of the fire lanes and the layout of the site. Colonel Ericson asked why they needed 12 units. Mr. Konowitz replied that financially it is not feasible if they do not get the 12-units. If we end up with 2 floors instead of 3 floors it is not viable. Colonel Ericson asked the applicant if he was stating that he could not build the property if he was restricted to 2-story. Mr. Konowitz replied that is correct. Mr. Keller asked about the number of parking spaces laid out on the Plan on the northwest corner behind 801 West Division Street for which there has been a variance request of the required 5- feet of open space down to 0-feet. As a parking space he is thinking with that close proximity to that property line if you would park your vehicle there and open the door and slam it into the fence on the next neighboring property with a 9-inch clearance. Mr. Turner replied that the parking configuration is shown as it is now behind the house. That existing parking extends over 4

CITY OF DOVER BOARD OF ADJUSTMENT SEPTEMBER 18, 2019 the property line which they are pulling back. It is not an ideal situation to have the pavement go that close to the northern property line. The configuration shown on the 801 West Division Street parcel is behind the house has not been changed much. A lot of the changes and improvements are happening on 731 West Division Street. It is not ideal, but there is not a fence currently on that side of the parcel. Hopefully, we are improving it by pulling the parking back and having all the parking on their property. Mr. Keller stated that he was not sure if he followed Mr. Turner exactly on those comments. It shows a 10-foot side yard at the rear of 801 West Division Street. Unless it is simply a practical matter if someone parks their car in there, he asked Mr. Turner if that was what he was saying. Mr. Turner replied that the 10-foot side yard is for building and not paving or vehicles. There was a brief conversation regarding the 10-foot side yard. Mr. Keller asked Mr. Swierczek if the parking place was deleted, is there a required minimum number of parking places that would be obligated otherwise along that property? Mr. Swierczek replied that this was discussed with the applicant. Mr. Turner replied that there is a minimum parking requirement (27) for the new apartment building that is being proposed. This is a waiver that will be requested if the application goes before the Planning Commission to have the parking requirements reduced from 27 to 13. Since the residents that will be staying there temporarily and since it is transitional or emergency housing, they don’t typically own vehicles. Therefore, 10-13 parking spaces will certainly be adequate for the proposed use. There will be a couple of permanent residents that will be staying to look after both facilities. Mr. Konowitz mentioned that at the other facility located at 684 Forest Street in which he is involved, they have thirty-five (35) men present every night and they only have four (4) cars parked in the parking lot that they own. The other facility on 1155 Walker Road have twenty- three (23) men and four (4) cars in the parking lot. Most do not have vehicles due to finances. Chairman Sheth asked what the social economic impact around the surrounding area of the project was. Mr. Konowitz replied that the surrounding area around that building is Bennie Smith Funeral Home. Mr. Smith owns the rest of the property. Mr. Keller asked Mr. Swierczek if there was on street parking available along that portion of West Division Street. Mr. Swierczek replied that he believed that portion of West Division Street is under construction at the current time. He is not sure what the final configuration will be. He believes before there was on street parking previously, but it does not appear that there will be on-street parking once DelDOT have completed their project. Mr. Keller mentioned that they are currently reconstructing the sidewalk along that area and he frequently sees cars parked along that side of West Division Street which could be associated with Bennie Smith Funeral Home (temporarily parking only). Mr. Konowitz mentioned that on the west side of Weston Drive (the area that joins the school) you cannot park in that area because the area is designated for school buses only. Mr. Keller asked how successful the applicant contemplated being with the Planning Commission with the reduction of the number of available parking spaces. Mr. Turner replied with the examples that were just mentioned and the number of parking spaces they really do not anticipate the residents using the parking spaces that will be provided. We hope that we will be 5

CITY OF DOVER BOARD OF ADJUSTMENT SEPTEMBER 18, 2019 successful. Mr. Swierczek added to address the parking situation that generally speaking for apartments or apartment style buildings, Code requires that parking spaces be provided at a rate of 2.25 per unit. However, the type of construction of this facility would be considered apartments and the use considered by the City of Dover Planning Office is a charitable institution and that will be part of the arguments in favor of getting the waiver from the Planning Commission. Colonel Ericson asked if the residents in the apartment be single females or do you anticipate family? Mr. Konowitz replied that the anticipation looking into the future is converting it into a family situation. We are not starting off with women and children because it is difficult. We want to start off with some strength and make sure we are running properly and then the intention is to bring in families. Mr. Hugg asked for clarification that this is still transitional and/or emergency housing and they will not be permanent housing. This will help them get on their feet and ultimately move on. Mr. Konowitz replied that is correct. We have five (5) facilities and two of which we rent and the other three (3) we do not rent. That is the way they are and have been very successful. Dover Interfaith facilities are located on Fulton Street, Water Street, Ross Street, Forest Street, and Walker Road. It is interesting to note that we are the only ones that take sex offenders in the entire State. We have never had a problem with the community. Mr. Keller recalled the comments by Mr. Hufnal at the last meeting regarding the sequencing of approvals by the Planning Commission and/or the Board of Adjustment. If the Board of Adjustment was to approve it in total as it was submitted today and the Planning Commission subsequently disapproves of the Plan, then the Board would have granted a variance in perpetuity for that real estate. He asked if the Board of Adjustment actions were dependent just upon subsequent Planning Commission submissions for approval until one is finally perhaps approved where upon these variances could take place. Chairman Sheth replied that in past experiences, the Planning Commission likes to have a clear variance before they take any action(s). There was a case in the past with Walgreens on Route 8 where the Planning Commission approved, and the Board of Adjustment disapproved; this nullified the Planning Commission actions. Since that time Planning Commission decided to have the variance decision first from the Board of Adjustment. Mr. Hugg clarified that any variance approved by the Board of Adjustment is only good for a year if the work has not commenced. Should the Planning Commission deny that particular layout and if nothing else happens the variance would expire a year from now on its own. So, it is not in perpetuity. He agreed that it is a little bit of a convoluted system and he is not sure that any one solution is any better than the other, but rest assured that the Board of Adjustment variance is a moot point if the Planning Commission says no. He recognizes that the Board are giving a variance to something that the Planning Commission might ultimately say no, we do not like that 13th parking space and take it out; then the variance pretty much becomes a moot point. 6

CITY OF DOVER BOARD OF ADJUSTMENT SEPTEMBER 18, 2019 Chairman Sheth asked Mr. Keller to look at the Advisory Comments to the Applicant as he referred to them “Variances become null and void if work has not commenced within one (1) year of the date the variance was granted. At present, there is no provision for extension of variance approvals.” Mr. Keller thanked Chairman Sheth and mentioned that he was aware of the provision. Chairman Sheth opened the public hearing. Chairman Sheth closed the public hearing. Chairman Sheth questioned if there was any additional correspondence for the record. There was none. Colonel Ericson moved to approve variance application V-19-08 based upon the testimony given and the Staff Report. The motion was seconded by Mr. Keller. The motion unanimously carried 3-0. Applicant #V-19-09 1203-1209 Walker Road (1205 Walker Road). MJ Stone, Inc. requested a variance from the requirements of the Zoning Ordinance, Article 4 §4.1 pertaining to the maximum height in the R-8 (One-family Residence) Zone. They are requesting this variance because the 150-foot-high existing radio tower with 3-foot antenna was previously considered legal non-conforming, but the recent alterations have increased the height of the structure by 11 feet (150-foot-high existing radio tower with 14-foot antenna). Subject property is zoned R-8 (One-family Residence Zone). Tax Parcel: ED-05-067.18-01-76.00-001-01. The owners of record are MJ Stone, Inc. c/o Mr. Michael Stone and Ms. Jessica Stone. This site was recently the subject of a Conditional Use Plan Application C-19-04 to permit a Place of Public Assembly (Church) in an existing building at the rear of the property; it received conditional approval on July 15, 2019 from the Planning Commission. Mrs. Harvey gave a summary presentation of the Variance Application Request for a variance from the requirements of the Zoning Ordinance, Article 4 §4.1 pertaining to the maximum height in the R-8 (One-family Residence) Zone. They are requesting this variance because the 150-foot- high existing radio tower with 3-foot antenna was previously considered legal non-conforming, but the recent alterations have increased the height of the structure by 11 feet (150-foot-high existing radio tower with 14-foot antenna). They are requesting that the variance would allow the structure to exceed the maximum height requirement by 11 feet for an overall height of 164 feet. Chairman Sheth questioned if there was any member present who had a conflict of interest and there was none. Representatives: Mr. Michael Stone and Ms. Jessica Stone, owners. Mr. Michael Stone and Ms. Jessica Stone were sworn in by City Solicitor Mr. Rodriguez. Ms. Stone testified that they do two-way communications for, school districts, public utilities, 7

CITY OF DOVER BOARD OF ADJUSTMENT SEPTEMBER 18, 2019 ambulance companies, and business communications. The equipment change with the new antennas was to get a broader range of people’s radio services. In order to keep the savory, it needs in place the shorter antenna did not provide as much coverage. Colonel Ericson asked how much more coverage the applicant would get with the new antenna. Mr. Stone replied that it was more of a frequency change. The applicant needed a 17-foot antenna that sticks 14-foot above the tower. If the applicant slid the antenna down, it would only be 3-foot above; then the radiation elements would radiate into the tower and the coverage would severely be degraded. Mr. Keller asked for clarification that the tower structure itself would not be changed and if it will remain in place as is. Mr. Stone replied correct. Mr. Keller asked if the antenna was the only change. Mr. Stone replied yes. Mr. Swierczek asked if the applicant could confirm the overall height of the structure with the new antenna installed. Mr. Stone replied the overall height is 164-feet. Colonel Ericson asked if the previous structure was 180-feet. Mr. Stone replied yes, before he purchased the property there was previously a 180-foot tower. Mr. Keller asked if the new antenna as shown on Exhibit E to be two (2) separate singular poles. Mr. Stone replied yes, it will be two (2) separate antennas and the bars going across are mounts. Chairman Sheth opened the public hearing. Chairman Sheth closed the public hearing. Chairman Sheth questioned if there was any additional correspondence for the record. There was none. Mr. Keller moved to approve variance application V-19-09 as submitted particularly in light of the City’s Report, Exhibits and comments submitted by the applicants. The motion was seconded by Colonel Ericson. The motion unanimously carried 3-0. The meeting was adjourned by Colonel Ericson and seconded by Mr. Keller at 9:51 A.M. Sincerely, Maretta Savage-Purnell Secretary 8