BOA 4-21-21

CITY OF DOVER BOARD OF ADJUSTMENT MINUTES April 21, 2021 A Regular/Virtual Meeting of the City of Dover Board of Adjustment was held on Wednesday, April 21, 2021 at 9:00 A.M. using in person and the phone/videoconferencing system WebEx due to Delaware’s Declaration of the State of Emergency for COVID-19 with Chairman Sheth presiding. Member’s present were Chairman Sheth, Colonel Ericson, Mr. Keller, and Mr. Hufnal. Mr. Senato was absent. Staff members present were Mr. Swierczek, Mr. Hugg, City Solicitor Mr. Rodriguez, and Mrs. Savage-Purnell. APPROVAL OF AGENDA Mr. Hufnal moved to approve the agenda as submitted. The motion was seconded by Colonel Ericson and unanimously carried 4-0. Mr. Senato was absent. APPROVAL OF THE REGULAR BOARD OF ADJUSTMENT MEETING MINUTES OF OCTOBER 21, 2020 Mr. Keller moved to approve the meeting minutes of October 21, 2020 with the necessary corrections. The motion was seconded by Colonel Ericson and unanimously carried 4-0. OPENING REMARKS CONCERNING APPLICATIONS Mr. Dave Hugg, Planning Director stated that the meeting today will be conducted in accordance with the Agenda. There is one new (1) application 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 May 19, 2021 at 9:00am in the City Council Chambers and within a virtual format. NEW BUSINESS Applicant #V-21-01 V-21-01 Lands of William E. Ardito at 4 Lakeview Drive - William E. Ardito has requested a variance from the requirements of Article 5 §1.2 of the Zoning Ordinance pertaining to the relation of accessory buildings to streets. Specifically, a request is to allow a proposed accessory

CITY OF DOVER BOARD OF ADJUSTMENT APRIL 21, 2021 building (detached garage) to be located closer to the street than the principal building (house). Subject property is zoned R-7 (One-Family Residence Zone). The Tax Parcel is ED-05-068.13- 01-08.00-000. The owner of record is William E. Ardito. Mr. Swierczek gave a summary presentation of the Application Request for a variance from the requirements of the Zoning Ordinance, Article 5 § 1.2 pertaining to the relation of accessory buildings to streets. Specifically, a request to allow a proposed accessory building (detached garage) to be located closer to the street than the principal building (house). Exhibits for the Record: Staff Report, Zoning Exhibit, 2 Series of Photos (7 Photos each), 2 Site Plans (submitted prior to Applicant revising proposed Site to comply with 5-foot minimum Side Yard Setback), a 1-page excerpt of a document noting Appraised Value of home at purchase (2019) and after the Applicant has made improvements, and a supplemental statement noting improvements made to the subject property to-date, all submitted by the applicant. Legal Notice was published in the Delaware State News on April 9, 2021. The public was notified in accordance with regulations. Mr. Hufnal asked if there were any correspondence in favor or against the application. Mr. Swierczek replied no. Representative: Mr. William E. Ardito, Owner. Mr. Ardito was sworn in by City Solicitor Mr. Rodriguez. Mr. Ardito mentioned how his property was structured. To the right of the house is a deck as well as only 2-feet to build a single garage. On the left side of the house, it would only be about a 15-feet buildable space but there would be several obstacles if in fact he was forced to do that. He mentioned that he would not do that because there is a slope. Mr. Swierczek has been helpful and great on all this stuff, but he did not recall Mr. Swierczek requesting any information about the percentage of the slope. He did send photos to Mr. Swierczek informing him that it was a sloped area. To get to the left side of the house if you are looking at the front of the house, he would have to take down about four (4) trees and build a driveway to get up to that area and take out the fence. It would be very unfeasible to do that. The circular driveway is currently there and right beyond where the vehicles are parked that is a natural spot to put the said structure (garage). Mr. Swierczek suggested that instead of on the left side of the house it could be put in front of the house. If it was put in front of the house, it would block his windows, bedroom and living room. This would not make much sense to do that. He understands that the Board wants to keep the integrity of the City of Dover and make things look good, but he is all about quality. This is the reason he presented his appraisal. He purchased the property for $235,000 and it now that he has added several approvals it is now appraising for $385,000. He mentioned he put real stone on the front and a metal roof. If he would be able to build the detached garage it would have the same format of a metal roof and real stone a stylish building for the garage. Directly across the street is a house that has a carport next to the house that is unsightly and does not look pretty. He does not understand the concept of why someone can have a carport next to the house that does not look pretty; and he is only trying to build a detached garage to improve the quality of his land and structure. He is at a disadvantage of not having a garage. There have been two (2) incidents 2

CITY OF DOVER BOARD OF ADJUSTMENT APRIL 21, 2021 that his vehicles were broken into and items stolen. He loves the 27,443 square feet property and life living near the lake. The garage would add value to the property. He does not see the harm in having the garage although he was informed it is against the Code. Mr. Keller questioned where will the proposed building be placed? He was not able to discern with the information provided. Is the survey current that was dated May 2016 (Exhibit C)? Are the improvements shown on the lot are in fact as they exist today (five years later)? Mr. Ardito replied that the proposed structure would be (on the survey) near the circular driveway and if you look at it directly from the left side where the vehicles are parked and closer to the wood property line is where the structure would be located (approximately 42 feet from the house). Mr. Keller mentioned as he referred to a hand sketched figure (Exhibit D) for the proposed garage and stated that it did not depict the distance from the house. He asked the applicant if it was approximately 42 feet from the house? Mr. Ardito replied yes. Mr. Keller questioned what the dimension of 32 feet and 20.7 feet represents on Exhibit D? He asked if the dimensions represented the length and width of the proposed garage? Mr. Ardito replied, yes sir. From left to right would be 32 feet and the depth of driving into the garage would be 24 feet. The 24 feet would allow the 5-foot setback as per Code. Mr. Keller asked for clarification because the drawing indicated that the 24 feet would extend to the property line. Mr. Ardito replied that there was some confusion because it was not supposed to be submitted. The confusion came when someone in the Planning Office thought that the garage could not be in front of the house. Both Mrs. Melson-Williams and Mr. Swierczek clarified that the structure can in fact be in front of the house. Therefore, we would like the garage to be in front of the house. The structure will overlap the house approximately 4-5 feet and instead of it having a 20.7 feet depth it will have a 24 feet depth. The 20.7 depth would be too small. He apologized for the hand drawing and information that was not clear. Colonel Ericson mentioned that there was a similar situation when he visited Wild Quail on yesterday where the garage was detached from the house and there was a complaint because it did not meet the requirements. The owner installed a sidewalk from the garage to the house with a covering over it. The owner was informed that it met the Code, and he could keep it without taking the garage down. Is it possible in this case? Mr. Ardito replied that if his Request is denied then he could in fact do that. If you look at the Exhibits, there are three (3) evergreen trees that he does not want to cut down. If he was to do what was mentioned, he would have to cut down the trees and he does not want to do that. It would also be a legal structure because the garage would be attached the house. Putting a breezeway across there and taking out or blocking three (3) evergreen trees just to meet Code is sad. Given the location, he did not think that anyone would complain if in fact that this was done because it is an isolated area. Colonel Ericson mentioned that he did not see a caption on the photo where the house and vehicles are located and where the applicant wants the proposed garage and the electrical station that would block out any ability to see the garage. He asked what was his opinion on the electrical station? Mr. Ardito replied that is an unsightly City of Dover station and he has tried to inquire to have fence installed around it. He stated that in Ocean City he has a condo, and they 3

CITY OF DOVER BOARD OF ADJUSTMENT APRIL 21, 2021 will build a station like that and it will look like a small house. He would be willing to invest in making the station look better and asked for contact information regarding who he could make the proposal to. The electrical station would definitely block the look of the garage from the street. He realized that the electrical station is necessary; and he was not sure how they were able to put in the structure as it is located right on the property line. He mentioned that it is no big deal as it is a wooded area. It is an extension from the apartments that will never be built upon. Mr. Swierczek replied to Colonel Ericson’s question about the item of the breezeway that was noted. The breezeway would create sort of a structural attachment that would be more of a physical addition to the house as opposed to a separate structure being built. Mr. Swierczek wanted to clarify that the applicant would not have to build the structure entirely within the side or front; so, it would not have to block out 24 feet of the front of his house. The item with the “electrical substation” just to be clear is a station of the Department of Water & Wastewater for the City of Dover. The station has been there for quite some time in terms of the setbacks. Colonel Ericson mentioned if the applicant would put a solid fence on his property next to the station then it would pretty much block out the garage; it would not be an eyesore and it might even look attractive. Mr. Swierczek mentioned that there is a certain allotment in the Zoning Ordinance for the construction of a fence in the front yard of a property. The maximum height of the fence is 4-feet if it is in front of the main dwelling and can be built up to the property line. It would not accommodate the accessory building as part of the side or rear yard. Colonel Ericson mentioned the 12%-20% grade where the pine trees were located and there is a considerable grade. Do we have any idea what that is and if it meets the criteria? Mr. Swierczek replied that Staff did not receive anything from the applicant outside of that photo. By the angle of the fence, it does appear that there is some type of slope. The 12%-20% grade is an older provision of Code. It is a pretty steep grade, and we don’t know if it meets that or if that grade is present closer to the street than the front of the house. Mr. Ardito replied that he apologized, but he did not recall him requesting to get a percentage of what the grade was. He did not realize it was significant and that there was a number involved. Perhaps the information is in some of the paperwork that was sent to him. Mr. Swierczek replied it is a minor provision of Code. Mr. Ardito referred to the comments that the garage does not have to be in the front or the side but mentioned that it was kind of the only two choices. Building a garage in front of the house is unsightly and building a garage on the side making the one car garage as small as possible with the slope and taking out trees is very unfeasible. Mr. Swierczek communicated and shared from his screen the suggestion of building the garage to meet the house. Mr. Ardito mentioned that there was a bedroom to the far-right side of the house with a window. If there was a garage there, it would stop the light from coming into the bedroom. Mr. Hufnal mentioned that he did not get all the information for the right side. He asked what was the reason that part of the deck area could not be used to have the garage come out on the right side. Mr. Ardito replied that he just put deck tracking in all around. There is no room, and it would overlap the living room, no light and just would look unsightly to put it on the right side of the house. There is more on the left side. Mr. Keller asked the applicant if he was in agreement that if there were some attachments from 4

CITY OF DOVER BOARD OF ADJUSTMENT APRIL 21, 2021 the proposed garage to the house itself, would that be a matter that would be considered an accessory building and okay from the applicant’s perspective? Mr. Swierczek asked for clarification from Mr. Keller, if he meant that it would constitute being part of the main structure as opposed to an accessory dwelling for the breezeway. Mr. Keller replied yes. Mr. Swierczek replied that if there is a shared structural component, whether it is a wall, roof or foundation, then yes. For example, if a breezeway was to be constructed or a shared roof from the main house to the garage with some type of sidewalk the Planning Office would consider that as an extension of the main dwelling. It would have to abide by the bulk standards of the R-7 as opposed to the standards specific to an accessory dwelling. Mr. Ardito mentioned if he was aware of that ahead of time, he could have built the breezeway and attached it. Yes, he knew officially that would be allowed, but putting that breezeway in would be very costly and he would have to take out a fence and three evergreen trees. Perhaps there could be an exception and be reasonable. Mr. Keller mentioned that the Board is obligated to consideration of “Exceptional Practical Difficulty.” When you talk about slopes and removal of trees, landscaping and routine matters or routine difficulties, but there is no construction which takes place. Mr. Ardito asked what would be non-routine matters or an exception where a detached building would be approved? Mr. Keller replied he envisions an enclosed walkway. He was not sure how it would be proposed, but an attachment from the dwelling house itself and then to this proposed garage. He does not visualize any necessity for removal of the fence or gate on the left side of the house. It could still be an attachment without removal of the fence on the left side of the house. He asked Mr. Ardito would it need to be removed? Mr. Ardito replied that he was not sure how deep the structure attached to the house is going to go, but the fence is at the very front of the building. He feels that this is a pretty reasonable request to have a detached building. What would be a situation where someone would be allowed to have a detached building in the City of Dover? What would be reasonable? Mr. Swierczek reiterated that accessory garages are permitted in the City of Dover in the side or rear yard. Colonel Ericson referenced the criteria for an Area Variance, item D: whether, if a restriction is not removed, the restriction would create an unnecessary hardship or exceptional practical difficulty for the owner in his efforts to make normal improvements in the character of that use of the property. He mentioned that he had not heard much from the applicant how this is a hardship or exceptional practical difficulty if it is not done. If you are living in the house now and the cars are parked in front of the house, then this is something additional that you want and you want the Board to ignore the Code for the request. The Board tends to follow the Code when we can, but we look hard to see if there is another opportunity for the applicant to find another solution to his problem or something unique about the problem. He asked the applicant if he could prove a hardship or exceptional practical difficulty, as then he might have more encouragement from the Board. Mr. Ardito replied that it is a “hardship” because if you have to take out three (3) evergreen trees and disturb the landscape for a breezeway, that does not provide any usage. There is a unique landscape on the property and he really cannot attach it to the left or right side of the house. He cannot put it in front of the house as it would overlap the windows to the bedroom and living room. He is not able to put a garage in the backyard. He has added a lot of value to the house and feels that as a property owner he has the right to put a detached garage on the property that will be located closer to the street than the house. He feels that it is disappointing that the Board feels differently. It would cost him several thousands of 5

CITY OF DOVER BOARD OF ADJUSTMENT APRIL 21, 2021 dollars to put in a breezeway that you would not be able to see from the street or be able to use. This is a “hardship”. He felt like he was being punished. He understands that there are Codes you must abide by, but why is there a Code for not having a detached building in the front of the house. Colonel Ericson mentioned that what he was referencing when he stated “hardship” is the house was purchased without a garage and now you need one. What is the hardship or Exceptional Practical Difficulty if it is not approved? Why do you need a garage? Mr. Ardito replied that he has three (3) nice cars that he would like to not have deteriorated from weather, sap and being overlapped by pine trees. It is nice to have a garage to protect the investment of the vehicles. In addition to that, there are people who wander around from the adjacent apartments who have stolen items from his vehicles and at one time his vehicle was damaged. He does not want to do work in the garage; he wants the garage to protect his vehicles. Mr. Hufnal asked if sloping of the lot that prevents putting the garage in certain areas. If the applicant came back with different information regarding the sloping would that give the Board a better chance of approving the request with the Exceptional Practical Difficulty? Mr. Swierczek replied that it is an old provision of the Code that were a slope of at least that grade to be recorded that would prevent the construction of a garage otherwise in the front of the property. Then that would be an option for the Board of Adjustment to then allow for a garage structure to be added. It does not necessarily specify whether the grading would have to be present in its entirety on the front of the property. Mr. Keller asked Mr. Swierczek if he was aware of any provisions of the Code whereby if there is an existing stated slope that there is prohibition against altering that slope simply by grading or re-grading the area. That is not a designated wetland area that would preclude that, is there? Mr. Swierczek replied correct. It is his understanding that there is no wetlands or floodplains recorded specifically to that area where the slope may or may not be present on the property. To his knowledge, the only circumstances in which the City of Dover may restrict altering the grading of any type of slope on the property maybe when it could impact rainwater management or may overlap something that DNREC might have otherwise judication over in terms of rainwater management or floodplains, etc. Mr. Keller readdressed the matter that Colonel Ericson previously mentioned regarding a means by which there could be an attachment to the house structure and building the garage. This would perhaps bring about a solution to Mr. Ardito’s concern for construction of the garage. He does not envision a walkway or whatever as an enclosed structure or simply attachment to the house or as a covering for the walkway or whatever and then attached to the proposed garage. It could still be considered as an extension of the house structure itself and rather simple matter where they would design an overhead covering to the walkway. We have no proposal of this, and he is still not convinced by the discussion that the matter rises to an agreement that this is an Exceptional Practical Difficulty. Mr. Swierczek replied in terms of the Zoning Ordinance and how it is applied it would not have to be basically rising to the level of another room to the house. If it was a shared roof covering and a paved walkway, then to some degree there is an attachment of the structure. Roof and/or wall or foundation that could be considered as an extension of the main building as opposed to a decorative feature. 6

CITY OF DOVER BOARD OF ADJUSTMENT APRIL 21, 2021 Chairman Sheth mentioned for clarification to the applicant that the Board does not create Code. The Board of Adjustment simply does interpretation of the Code and recognizes whether there is a hardship or not. If the applicant has any questions about the Code requirements, it can be addressed with the City Council. Mr. Ardito replied that he was trying to get an interpretation of the Code as to why detached buildings cannot be in front of the building if it was off to the side. He did not think this request would deter the look of something. He was just trying to get the rationale. Colonel Ericson mentioned that one of the problems is setting a precedent. The Code is there, and the Board tries to follow the Code as much as possible. The Board likes to find whether the property is unique or there is an Exceptional Practical Difficulty; and not just because a person desires it. Once you establish a precedent then you pretty much change the Code. Other people come in in different developments and point to our case and ask the question that you did it at one place, why not here, then the Code becomes superfluous. Mr. Ardito replied he understood. He was just wondering if the Board has ever approved a detached building and if so, what would be more different than this case. If there has not been any detached building(s) approved, then he wonders why we go through the process. This seems to be a unique case in his opinion because he cannot build a garage on the left or right side of the house and make it a usable garage. He cannot drive to the backyard. If you look at the way the driveway is, the most natural location on the property would be off to the left of it. The Board continues to talk about the slope, but there is only about 20-feet of buildable space in that area which is not a whole lot for a garage. If we don’t want to break the Code, then we should not be having these meetings and charging an applicant $300. He did not think that the Board acknowledged his case as unique. Chairman Sheth mentioned that the Board hears his case but there was nothing else to add on to it. If there is an alternative, the Board can decide to table the application. He understands the slope, stormwater system with DNREC and other issues. Mr. Swierczek replied that there are circumstances in which the City may issue a variance to someone considering the slope of a property. He noted that those do not appear to apply to this property. Colonel Ericson mentioned that he had not heard if the applicant wanted to take advantage of tabling the motion/application to give the applicant more time to strengthen his position. Mr. Ardito replied of course, he would definitely get a survey to see if the 12% to 20% slope (exists) and to see if it falls in that criteria and if it is contingent upon getting approved or not. Chairman Sheth mentioned that there is no contingency. Colonel Ericson stated that anything that can make your case as well as make the City feel comfortable, that will give you time if the Board approves to table this case until the next meeting. Mr. Hufnal stated that he agreed with Colonel Ericson’s suggestion to table the application and give the applicant time to possibly come up with a different survey showing the slopes which would then give him more creditability to having a detached garage. Chairman Sheth agreed but it is up to the applicant to take advantage of the suggestion. 7

CITY OF DOVER BOARD OF ADJUSTMENT APRIL 21, 2021 Mr. Swierczek wanted to point out that with the provisions for the grading of the slope, it would have to be demonstrated to prohibit any type of attachment or extension of the main structure. To identify if you wanted it to apply to the side of the house or to any portion of the house that could otherwise be connected by some type of extension such as a breezeway or what have you. Mr. Keller mentioned that the Board’s responsibility is not necessarily to bring about solutions to the matter brought before the Board but act upon the application as submitted. We have historically often times suggested alternatives to perhaps an applicant’s request and allow them to make the decision for a follow-up in some manner. As he referenced the top photo on Exhibit B-2, he did not see where the sloping would require any extensive regrading or prohibition against putting any kind of structure in that area. Mr. Swierczek mentioned in his testimony that in order to build some structure or accessory structure, addition to the dwelling or what have you, is not precluded from being regraded to accommodate the foundation, footer, etc. He did not like to see any applicant be led to believe that he/she could make additional expenditures for landscapers or what have you to establish the slope of that area in the hopes that it would bring about some Exceptional Practical Difficulty, which in his mind as of today at least it appears a matter that is going to be met as such an Exceptional Practical Difficulty. In looking at that top photograph, the proposed structure would have to adhere to the 5-foot offset from the property line in any event. It seems that a somewhat practical solution in his mind would be for an enclosed walkway with a simple roof over the pathway leading to the swing gate to the rear yard, etc. His suggestion would be for the owner to consider that. That would seem to be a solution whereby an issue with the current zoning matters would not have to be overcome otherwise. Mr. Ardito replied that it would not be a solution. That is an option that he has had all along to build a breezeway and attach it at both ends. He is well aware of that. He was trying not to be forced to build a breezeway because he thinks it would take away from the natural look of the property and also have to remove three beautiful evergreen trees. He was still questionable and would like more information regarding the number for the slope from the Code. He was not aware he needed to have that information and that is why it was not included. Mr. Swierczek replied that he did not back track; he was merely pointing out the fact that the slope would need to be present not only on the side but in any location that would prohibit you attaching the garage to the main structure. Chairman Sheth opened the public hearing. There was no one to speak. 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 table variance application V-21-01 based upon the testimony given and the Documents and Recommendations received from Staff and to give the applicant additional time to present additional information regarding the slope. The motion was seconded by Mr. Hufnal. The motion unanimously carried 3-1. 8

CITY OF DOVER BOARD OF ADJUSTMENT APRIL 21, 2021 Roll Call 1. Chairman Sheth - yes 2. Mr. Hufnal - yes 3. Colonel Ericson - yes 4. Mr. Keller - no 5. Mr. Senato – was absent Chairman Sheth asked if there were any questions and there was none. The Board members would like to have the next meeting in person. Mr. Swierczek mentioned that the main reason that this meeting had to be held virtually is because the State is still requiring public participation to be available virtually. The City has very limited capabilities to host a both in-person and virtual events. We will continue with this format as long as it is an order by the State. This will also include the Planning Commission, City Council, and Historic District Commission meetings. The meeting was adjourned by Mr. Keller and seconded by Mr. Hufnal at 10:37 A.M. Sincerely, Maretta Savage-Purnell Secretary 9