Boise City Planning & Zoning Commission Minutes January 6, 2014 Page 1

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1 Page 1 CAA / BRENT AND HOLLY CLAIBORN / APPEAL Location: W. Freedom Drive APPEAL OF THE PLANNING DIRECTOR S APPROVAL OF AN ACCESSORY DWELLING UNIT PROPOSED IN AN R-1B (SINGLE FAMILY RESIDENTIAL) ZONE. Todd Tucker (Current Planning Team) This item is an appeal of an administrative approval of an accessory dwelling unit (ADU). This item is an open record and new or additional information can be submitted. On October 28 th, 2013 Planning & Development Services approved an accessory dwelling unit at the subject property. The Planning Team found the accessory dwelling unit to be in compliance with the required findings and the Boise Development Code. Later a neighbor across the street filed an appeal. They listed four grounds for that appeal. The grounds stated were the Site Plan is ambiguous and not drawn to scale, the street and side setbacks are not shown and the Site Plan is misleading. It incorrectly identifies nonexistent parcels and previously voided land surveys abandoned by the applicant. Invalid parcel information was shown. The existing home and buildings are not identified, nor shown, and the plan was incomplete and the final ground was the proposed construction does not comply with the existing covenants and rules. On this slide I d like to show you the appellant was correct in several of their grounds for appeal, but as it is an open record the applicant has since submitted a Site Plan drawn to scale that addresses all of the issues voiced by the appellant. The new Site Plan shows complete property boundaries, the setbacks from all property lines, the entire existing home and the proposed accessory dwelling unit. The new Site Plan addresses the first three concerns the appellant had. The fourth concern does not. However, the CC&R s (Covenants, Conditions and Restrictions) are a private agreement and are not part of the review or analysis of development applications. This ground for appeal should not be considered by the Planning & Zoning Commission as part of their decision. This slide demonstrates how the proposed accessory dwelling unit shown below is consistent with the design and character of the existing home on the property. In conclusion, I would like to remind the Commission this is an open record, so information shown tonight can be accepted and added to the record. I would also like to reiterate the accessory dwelling unit is in compliance with all of the findings found in the Boise Development Code relating to accessory dwelling units. With that, our recommendation is for approval of the accessory dwelling unit found in file CAA with a denial of the appeal. The decision tonight by the Planning & Zoning Commission is final but that decision may be appealed to City Council. That concludes my presentation. I know both the applicant and the appellant are here tonight as well. Brent Claiborn (Appellant) I m a neighbor across the street from the applicant. Thank you Commissioners and Chairman for the opportunity to speak and explain our reasons for appealing this, appending approval of the property across the street from our residence. I have my handwritten testimony here so forgive me as I follow that. I d be happy to answer any questions after that.

2 Page 2 As outlined in our appeal filing, here are the basis and reasons for our appeal. This application Site Plan and related documents rely upon and are based on a void and invalid land survey performed by the applicant, Mr. Jennings. After an unpopular attempt to construct a second structure on his lot in August 2012, Mr. Jennings had a minor land division survey done and recorded on his lot and adjacent property attempting to change the size and configuration. In March of 2013 Mr. Jennings was sued by his neighbors in District Court. We were one of the folks suing him. In April of 2013 before District Court Judge Owen ruled and issued a final judgment decree in our favor against Mr. Jennings on each and every pleading including and declaring the following. Before I do that I have copies of the judgment. May I present those? Exhibit #1 handed in by Brent Claiborn Brent Claiborn Let me start over so it makes sense. Now that you have the judgment in your hands, in April 2013 Judge Owen ruled and issued this final judgment decree in our favor and against Mr. Jennings on each and every pleading, including and declaring that his minor land division survey is null and void and has no further affect, that certain Quit Claim Deeds are null and void and has no further affect. Both notices of buildable parcel are null and void and have no further affect and that the attempted addition of two lots in Sunning Dale Estates and Providence Place Subdivisions are not annexed and are not part of the Jennings property. This judgment decree specifically overturned and invalidated the minor land division survey initiated and attempted by Mr. Jennings to his property. Furthermore, this judgment specifies that Mr. Jennings attempt to attach two annexed infringe lot remnants from two different subdivisions was also null and void. In other words, Mr. Jennings lot does not include any portion of these lot remnants which affectively changes the lot configuration and reduces his legal property and lot area. As Mr. Jennings applications and documents show this application and Site Plan rely on and are based upon a land survey that is now null and void. It appears Mr. Jennings has knowingly submitted invalid and incorrect information on his application to the City including the property size, acreage and area. By court order this property does not contain.99 acres as listed in the application but substantially less. In addition, Mr. Jennings submission of an invalid survey and Site Plan further brings into question accurate lot shape, true lot dimensions, setbacks, building envelope and potential encroachment or easement conflicts. Both the original and the revised Site Plan are in error and are clearly wrong. Please also understand a couple of other things. That being at no time during or after the District Court hearing or decision did Mr. Jennings question, argue or protest any portion of our complaint. He did not argue with any of the points made. He did not voice any disagreement, he did not dispute or contest any of the complaint allegations, but he did voluntarily and willfully accept the judges and courts final decision. Again, his minor land division survey is null and void and by his own admission is not a valid basis for this application. Commissioner Bradbury We ve probably gotten ourselves a little bit mixed up here. What I d like to do is give an opportunity to the Commission to ask questions of Mr. Claiborn before you sit down, and staff. (inaudible)

3 Page 3 Commissioner Meyer This question is for staff. The application before us for the ADU is based on what land of survey information? Todd Tucker The application submitted is based on the property boundaries of the parcel as it sits right now. The appellant is correct there was a minor land division which was approved. The court ordered that to be null and void which, is the case. Previous to the minor land division being approved, the applicant and the owner of the property added two parcels they owned, in addition to the larger subdivided lot to their property which is the current boundary of the parcel right now. The minor land division went away so it s all one parcel now which is comprised of a subdivided lot and two separate parcels that have been added to that lot to make it one parcel. Commissioner Meyer Just to be clear, this recent finding, the new land division we re working with reflects this court judgment? Todd Tucker To the best of my knowledge that is correct. That is the way the Assessor s Office shows Mr. Jennings property now and I believe it is in reflection of that court order. Commissioner Meyer You believe, or you know? Todd Tucker Having not read fully that court order to know exactly if it nullified the addition of two additional parcels to that property, I know for a fact that it nullified the minor land division. I do not know for sure that it nullified the addition of two additional parcels to that property. The way the Assessor s Office shows the property now is one large piece of ground without the minor land division line. Brent Claiborn I apologize, in all fairness you have not seen this so I m going to give you a copy. Commissioner Bradbury Hold on Mr. Claiborn, come back to the microphone. Let s let them ask you a question because I think somebody will. Commissioner Stevens Is your understanding of this court decree that the parcels Mr. Tucker described purportedly attached to the existing lot. Was that also nullified by the court decree? Brent Claiborn Yes, it s specifically identified. If you look on Page 3 of the judgment under Paragraph 7 it speaks of Lots 12 Block 2 of Sunning Dale Estates Subdivision. Then on down in Paragraph 8 it speaks of Lot 26 Block 20 of the Providence Place Subdivision. These are the two parcels that Mr. Jennings attempted to add into his property and consolidate it. The judge specifically threw those out. They are null and void. Lyn Jennings It s my understanding the court judgment caused me to revert the property back to a parcel consolidation, which had been done several years ago. It was my understanding the court order invalidated my minor land division but did not address the fact the property would revert back to parcel consolidation, which was approved by the City several years ago. I had a parcel consolidation and I subdivided that. The court invalidated the subdivision. That s it. I still have the consolidated parcel which is almost an acre.

4 Page 4 It s a combination of three lots which was the basis upon which I submitted the request for an accessory dwelling unit to be built on that property. It s my understanding the court decision has nothing to do with this, what-so-ever. The property has already been deeded back to the position it was at before the court decision. Is that your understanding Brent? Brent Claiborn I don t understand that, no. Lyn Jennings It s been deeded back to the original parcel consolidation which took place. Commissioner Bradbury (inaudible) Lyn Jennings I m sorry. It s been deeded back to the original parcel consolidation of several years ago, which was the requirement to meet the judges The judge invalidated the parcel division, minor land subdivision, basically is what that document says. He invalidated that. So my solution suggested by the City and required was to deed back to the original parcel, consolidated parcel, three lots. That s where we stand with the City approval. The City has approved the ADU to be built on that lot. However, I think what Mr. Claiborn is driving at is he s concerned I m building on a lot that s bigger than the original lot covered by the CC&R s. My property reflects compliance with all the requirements of the CC&R s for the original lot, Number 17 Block 1. I did a redo on the Site Plan to overcome his objections about the ambiguities. I had to change the depth of the RV garage from 50 to 43 to comply with setbacks which would have been required of the original lot, Lot 17 Block 1, before the other two lots to the south which were consolidated into it by the City. As far as I can see I ve met all the requirements for the City. The City has approved it based on that and I ve met all the requirements for the CC&R s as far as setbacks go. That was the reason for the redo because I had not allowed enough setbacks for the RV garage, so I redid that and of course we clarified all of the issues he had addressed. I m not sure what his objection is with respect to a violation of the CC&R s. I don t think he made that clear. Commissioner Bradbury We re not in a position to answer questions so let me try to help you out by telling you this. This body will not attempt to interpret or enforce private restrictive covenants. It s a matter which will have to be handled outside of this room. We re really only here to talk about whether or not the application for the accessory dwelling units meet the requirements of the City Zoning Code. Lyn Jennings I believe Mr. Tucker has adequately attended to all of the necessary details for that approval and has the documentation. It is approved and it has been approved. There should be no reason to deny it. All the setbacks, the proposed construction is involved with Lot 17 Block 1. It has nothing to do with those other two parcels that were consolidated into it. There will be no building there. No construction is allowed. At the time the City made it clear no construction could take place on that property, so all the construction on Lot 17 Block 1, the original lot platted in the subdivision. All the setbacks have been met. Commissioner Bradbury - Okay, anything else?

5 Page 5 Lyn Jennings - I can t see there would be anything. Another point I should make, Mr. Tucker has already made my point by approving it for the City. This particular court order has nothing to do with this situation. It was resolved when I deeded back which was before I made the application for the accessory dwelling unit. Is there anything I can answer to clarify that? I m surprised this even came up as an issue. Commissioner Meyer I do want to have some more clarification from staff. Based on making new information or changes, does the percentage the ADU represents, is it still completely within code? We were assuming we were dealing with a certain parcel size, right? That parcel size has possibly changed and the change with that percentage is, does it still keep it within the code? Todd Tucker After reading through the judgment and decree we may need to get a ruling from our attorney, as I m not an attorney, but it does appear as though this ruling and decree states that Lot 12 Block 2 of Sunning Dale Estates Subdivision and also Lot 26 and Block 20 of the Providence Place Subdivision #4, those are the two parcels added to the larger lot. It says on both of those; Is not annexed into and not part of then it lists the description of the property. So, from my lay person reading this it appears this decree did not only nullify the minor land division, but also nullified the parcel consolidation of adding those two lots in. Having said that, with the reduced lot size the accessory dwelling unit does comply with the percentages required, although the other requirements, except for this property, is zoned R-1B which has a minimum rear lot setback of 30. As it s drawn the proposed structure would only have a rear setback of 20. So it would not be in compliance of the Zoning Code for the rear yard setback as it sits on that specific parcel. Commissioner Gillespie Can we be allowed to ask questions about what he just said? Commissioner Bradbury Before we get started, I want to make sure, because we kind of got turned around here. I want to apologize for everybody having to sit through this but I want to make sure everybody gets an opportunity to speak and can get said what they want to say before we leave tonight, even though we may seem procedurally awkward. Commissioner Gillespie This is a question for Todd. Can you pull up the antique looking site survey? Show me the 20 where it should be 30? Exactly where is that? Is it in the slanty area of the two-car garage, or where is that? Todd Tucker It s in this location right here. It s hard to read but they are showing it at a 10 setback. This is the property line showing a 20 setback in that location. In this location it s going to be, it looks about 10 feet. Commissioner Gillespie So (inaudible) setback. Todd Tucker We were measuring the setback assuming this was all one big parcel and this down here had been added into that. He has delineated though where that original property line was. This was two parcels. There was a property line approximately in this location and these two parcels were added to this parcel.

6 Page 6 It appears the judgment removed those also from this parcel so we re just dealing with Lot 17 which is Commissioner Gillespie What you re calling old (inaudible) lot is Todd Tucker We would have to measure the rear yard setback from that property line. Lyn Jennings Could I make a statement. Commissioner Bradbury Hang on a second. I ll give you an opportunity. Commissioner Demarest I have a question for Todd. So what you re saying is the change in that setback requires a variance for approval. Is that correct? Todd Tucker It would either require a variance or a redesign of the site, yes. Lyn Jennings It was my understanding at the time that I took what was called a default judgment to redo, or undo the minor land division, the relevance of annexation into the subdivision was based on a different premise. It had nothing to do with invalidating the original parcel consolidation. It had more to do with whether that property was subject to the CC&R s of the subdivision which was the basis of the entire suit. As a matter of fact, there was a suit prior to that against a property next to me and the focus of it was the property had not been annexed into the subdivision, therefore was not subject to the CC&R s. So it was a matter it couldn t be used to calculate enough land to justify a subdivision, not that it wasn t part of my ownership, nor part of anyone else s. I still own that property. As far as the City is concerned I have the larger parcel and it is legal. It was approved as a parcel consolidation years ago before I decided to do the minor land division. When I deeded out I reverted back to the parcel consolidation situation. The Assessor acknowledges it. The City acknowledges it s a legal parcel. The City setbacks are different than the setbacks for the CC&R s. I think the City is incorrect in saying there s plenty of setback there to satisfy their requirements. However, I knew I had the CC&R s to meet, so that s why I ve changed the setback in relation to the old property line to satisfy Mr. Claiborn. I believe his contention is I couldn t build anything on the original Lot 17 Block 1. However, my setbacks on the proposal meet the requirements for setbacks on Lot 17 Block 1, with respect to the CC&R s. I still have a legitimate consolidated parcel that s been approved by the City and that s the basis for the approval of the ADU, the accessory dwelling unit. That lot is a legal lot right now. Commissioner Bradbury I feel compelled to ask Mr. Claiborn if he has anything you d like to add? Brent Claiborn We can just call for public testimony and then do the rebuttal. That would be the order. Lyn Jennings I m doing the rebuttal.

7 Page 7 Commissioner Bradbury You have more to say? Lyn Jennings No, I just did the rebuttal. Commissioner Bradbury - I just want to make sure everybody has the opportunity to (interrupted by Lyn Jennings) Lyn Jennings I d like to hear his reply because the understanding at the time I took the default judgment to undo the minor land division. This talk about annexation had nothing to do with undoing the parcel consolidation. It had to do with stating this particular property which was added on was not subject to control by the CC&R s. Commissioner Bradbury Okay, you said that and I think we are understanding that. Brent Claiborn I just would like to consolidate the thinking and the rationale in that is the annexation the judge declared null and void of these two parcels of properties which are that section that modifies that southern boundary. Mr. Jennings pointed out he cannot build without the other boundary and the judge has thrown that out, so he has to build within the confines of the existing lot line which has narrowed his setback and doesn t give him the room to do that. That s why we contend he can t do what he s trying to do. That s again all laid out in black and white in the judgment and that s the ruling and decision of the judge as far as improper annexation of these lots, so the judge has declared that. That s not our doing. I stand by what I testified earlier and further see why it won t work. Commissioner Meyer Can you clarify what you mean by annexation? Brent Claiborn Yes, in the context of the judgment, the final decision by the court, the judge is saying the attempt by Mr. Jennings to annex and add on to his lot, these other two lots are null and void. He said it s null and void to try to attach and consolidate those lots into one. They can t be done. That s my understanding of the annexation in his decree. PUBLIC TESTIMONY Richard Straugh My wife and I have lived in this house adjacent to Mr. and Mrs. Jennings on the east side of their home for about 38 years and we consider them good neighbors and friends. But having just concluded an extremely expensive lawsuit to defend the covenants of our neighborhood, my wife and I are very concerned that any new construction be done legally and in conformance with those covenants. We are opposed to anything which would threaten the positive character of our neighborhood and or depreciate the value of our homes. Here are my concerns: Number one, everything just said by Mr. Claiborn, which we fully accept and fully support. There are some errors in the Planning & Zoning document which Brent brought out. Number two, our neighborhood has always been characterized by well-maintained homes separated by spacious and nicely landscaped yards. Mr. Jennings is not constructing a small guest house in his backyard hidden from street view.

8 Page 8 He wants to build a 2,400 square foot house next to his existing home. Filling in the side yard of the Jennings property with a 2,400 square foot building adds congestion to our immediate neighborhood. Thus impacting its spacious character. I believe this self reduces the desirability of homes on our block, thus contributing a major of depreciation to our home values. Number three, although the living area of the new dwelling is only 599 square feet, the additional square footage of unfinished utility space in the form of garages attached is included in the total structure. This is an ideal setup for the owner to later fill in part of all of that utility space to gain more living area in the dwelling, however illegal it may be. These things tend to happen down the line and the dwelling becomes not a guest house, but a rental and on and on. Even one rental like this in the neighborhood, and he s right next door to us, has a negative impact on our home values and I can see this coming. I just want to avoid a future problem here and especially if another challenge to our covenants results in another expensive law suit which we frankly could not afford. Summarizing, my wife and I are not in favor of congesting our block with an additional dwelling in our neighbor s side yard. The character of our neighborhood will be negatively impacted and we would expect this building to evolve into a larger dwelling that would be used as a rental. We have covenants, even though they are not respected by Planning & Zoning, in place to preserve the character of our subdivision. This particular building would ultimately be detrimental to this goal, as well as to our long term property values. Commissioner Demarest May I ask a question of staff or are we past that point? Commissioner Bradbury We re past that point. We ll see if we might be able to circle back. I do want to get back to the sign-up sheet for public testimony. We ve heard from Mr. Straugh, we ve heard from Mr. Claiborn but Holly Claiborn has signed up to testify if she d like. Holly Claiborn I don t have anything more meaningful to add than these two have. Commissioner Bradbury That s everybody who has signed up and that s everybody in the room. I think we should probably get the last word of the applicant. REBUTTAL Lyn Jennings The term annexation and adding on are not equal. They don t mean the same thing what-so-ever in this case. The annexation issue came up in a law suit between Mr. Gunter, my neighbor, and several of the other residents of the neighborhood. When the judge ruled it was not annexed in, I never applied to annex the property into the subdivision. I merely consolidated three parcels I had into one and that was several years ago. That was never contested. It was legal, it was accepted and there was never any supposition on my part that I had annexed that property into the subdivision. When I talked to the City and asked them had it been annexed, they told me no that property wasn t annexed into the subdivision. I think the only people who have the authority to annex in anything is the City and they have certainly not done that, so basically we re dealing with a parcel which is almost an acre. I ve met the City s setback requirements. The City considers this a parcel consolidation to be a legal lot.

9 Page 9 It s assessed as such. The County Assessor counts it as one lot. I merely calculated my setbacks based on what I thought Mr. Claiborn would object to and that was the original lot line, but the original lot line does not exist anymore. It s just a boundary of an easement that runs through there. That s my final word. Adding on and annexation are not the same thing. Not at all. Commissioner Bradbury I think everybody got the opportunity to talk. I apologize for having made that so complicated. We ll try to do better next time. COMMISSIONER GILLESPIE MOVED TO DEFER CAA TO A DATE CERTAIN OF FEBRUARY 3 RD, COMMISSIONER MEYER SECONDED THE MOTION. Commissioner Bradbury Just so it s clear, what is supposed to happen between now and then? Commissioner Gillespie I would sense the City might fully consider the judgment from Judge Owens and give the City time to fully digest the implications and correct any potential inaccuracies that may exist in the project report. In particular the discussion of setbacks on Page 3 of the report, which may need to be modified given Findings 7 and 8 of the judgment. Commissioner Bradbury I m going to vote in favor of the motion. I m going to try to get staff to maybe give a little more direction because I think I might be starting to finally figure this out a little bit. I think Mr. Jennings might actually be correct in terms of the use of terminology by the court and I do think we ought to give staff an opportunity to revisit and make certain. Whether Mr. Jennings is correct, or Mr. Claiborn is correct, perhaps staff can seek council. I m good with that. Commissioner Bradbury All in favor of the motion say Aye. ALL COMMISSIONERS RESPOND AYE. Commissioner Bradbury Opposed? (No response) Hearing none, motion carries. We re going to make a decision for this on February 3 rd.