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A
New Castle City Board of Adjustment Continued Hearing took place
on
January 20, 2009 at 7 p.m. in the City of New Castle’s
Town Hall.
Present: Mayor
John F. Klingmeyer
Roger A. Akin, City Solicitor
David Athey,
City Engineer
The
hearing was reconvened at 7:05 p.m. on January 20, 2009.
The
Mayor read the Notice of Public Hearing that states, “An
application has been filed by The Trustees of New Castle Common, P.O.
Box 453, New Castle, DE 19720, for: a special exception under Section
230 19 B(3) of the Zoning Code to continue operation of the Goodwill
Fire Company in its present location with the expansion requested in
the variance being requested here; for a variance from the Zoning
Code to allow the existing building to remain 12 feet from the rear
property line instead of the required 25 feet; and to allow an
addition to the building to be constructed 12 feet from the rear
property line instead of the required 25 feet; and, if required, to
consider this a request to allow an enlargement of a non-conforming
structure, on property located at 401 South Street, New Castle,
Delaware, known as tax parcel numbers 2101530093 and 2101530104.
For
the purpose of considering this application, the Board of Adjustment
will continue a Public Hearing on Tuesday, January 20, 2009, at 7
p.m. in Old Town Hall, 2nd
Floor, located at 2nd
and Delaware Street, New Castle, Delaware. Previous notification is
already part of the record.
(Raymond
Krett, Jr. (Goodwill
Fire Co.) and Fred and Tish Gallagher were duly sworn in by the
Mayor.)
Mr.
Andrew Taylor of Cooch and Taylor called on Raymond Krett, Chairman
of the Board of Directors of the Goodwill Fire Co., to explain the
need for the addition to the backside of the fire company and the
alternatives they have explored. Mr. Taylor explained the practical
difficulties and special exception. Under the City Code this is an
approved use for a fire company which they feel is a governmental
function under Section 230-19(b)(3). The area is zoned historic
residential (HR).
Mr.
Fred Gallagher lives immediately behind the fire company and has no
issue with the variance but
questioned the roof line. Is it going to be the same roof line? He
is concerned with his view of the river being limited by a pitched
roof. Mr. Krett responded that the proposed roof line is an “A”
roof line consistent with the front of the building. This was done
to allow for storage for records and because the basement will be
damp and unsuitable for storage.
The
Board reviewed the floor plan with Messrs. Taylor
and Krett. (Lengthy
discussion and questioning followed about the plan.)
Mr.
Krett explained why they chose attic storage versus
basement storage. The basement under the main entrance to the fire
company has been resealed several times and they have installed a
dehumidification system which is working right now and the cost of
using the basement would be prohibitive. Mr. Gallagher asked if they
would be needing additional storage beyond the 2,009 square feet they
will acquire with this addition. Mr. Krett said a consideration was
they need to make space for their fire line officers and staff.
Space on the first floor is needed for the administrative offices.
(No
other public comments were offered.)
Special
Exception
Mr. Athey
asked the applicant what sort of operational hardship would be
created if (in lieu of a pitched roof) they expanded the footprint to
accommodate the area above the first floor and keep everything on a
single floor. Mayor Klingmeyer asked Mr. Taylor if under the special
exceptions if the Historic Area Commission (HAC) had granted
approval. He informed that Mr. Bergstrom stated at our last meeting
that they had approved the other setback lines, they determined the
street setbacks and the only variance we needed a variance for was
the 12 foot setback. (There
is no record of the HAC’s approval with the application.) HAC
would also be involved with reviewing the application to comment on
the architecture and bulk, Section 230-57(b)(1)(b). (Lengthy
discussion about HAC’s role and the possible granting of
approval conditional on HAC’s input followed.)
The Mayor asked Mr. Akin if this Board could grant approval
conditional on HAC making their recommendations. Mr. Akin believes
that it can since this Board has met twice on this matter and it
could approve the application based on receipt of approval or a set
of minutes from HAC approving all aspects of the plan’s
subdivision then this Board’s approval of setbacks would be
legal. The applicant prefers this method as well.
The
HR Zoning Section 230-19 (last paragraph) clearly spells out that a
Historic Review Certificate is needed.
Mr.
Akin identified the fire company as a private entity providing fire
protection services fundamentally providing a government function
that the government would need to provide if the
fire company did not exist. The City’s charter
requires/permits the City to provide firefighting services and in
this case a private entity provides this role/function. The existing
structure is performing a government function of firefighting.
Mr.
Akin made a motion that the applicant’s request to be granted a
special exception to continue to operate
activities in an essentially government building under Section
230-19(b)(3) of the zoning code be approved. Mr. Athey
seconded the motion. (Discussion
followed about HAC’s authority to vote for/against a special
exception because that issue is devoted only to the Board of
Adjustment.)
Board
members provided their vote and supporting rationale.
Mr.
Akin voted in favor of the motion citing Zoning Code Section
230-19(b)(3). The applicant in this instance has satisfied the
requirements. It is an existing use, the conduct of fire suppression
operations is a government function provided for in the City’s
charter, and the HAC does not need to weigh in on whether a special
exception is required since that is an issue specifically assigned to
the Board of Adjustment. There have now been two hearings on this
application, the Board has heard testimony pro and con and this Board
is permitted to grant special exceptions. The conditional approval
should only be attached to whether or not the variances are going to
be granted by the Board in this case.
Mr.
Athey cited language in Section 230-19(c) in the last sentence states
that a Historic Review Certificate shall be obtained. He is
concerned whether special exceptions would be allowed.
Mayor
Klingmeyer’s understanding
is that this is a conditional approval pending approval from the HAC.
Mr.
Akin stated that we have an existing use that we cannot terminate by
denying a special use permit. We are being asked by the applicant to
take official action to approve what is already an existing use and
he does not feel this Board can terminate. HAC must review this
application pertaining to issues they have authority to review. The
special use is not something that HAC needs to get involved in so he
did not include HAC’s recommendation as a condition of
approving a special use in this case.
Mayor
Klingmeyer added that he is concerned with acting on a special
exception when the language states we are required to get a favorable
recommendation from HAC. It is clear that the applicant must receive
HAC’s approval.
(Lengthy
discussion followed concerning the language in the Code. Section
230-19(c) states that in all cases a Historic Review Certificate must
be attained, but that design is to address new construction in the
historic residential use rather than existing use. The Code needs to
be amended and clarified.)
Mr.
Akin made an amendment to his original motion regarding special
exception. Mr. Akin made a second motion that with the Board’s
approval on special exception as already voted on unanimously by the
Board shall be conditioned upon receiving a recommendation from the
HAC and should the HAC choose not to comment on the eligibility of
the applicant to conduct a use of special exception as a government
building, then the Board’s vote on the issue shall stand. Mr.
Athey seconded the motion.
The
Board approved the motion as amended based on their discussions.
The motion as amended was approved by unanimous vote.
Variances
Mr.
Akin supports the variances sought this evening contingent upon the
favorable recommendation of the subdivision by the HAC. Under
Section 230-57(c)(1)(a)(1) the Board has heard testimony concerning a
large tree that the fire company is seeking to save and planned
around the tree. Another special condition is the lot size and the
current location of the building and its set back exception. Under
230-57(d)(2), structural alteration/enlargement of buildings which
have been non-conforming use, a special exception has not been
granted before tonight, technically this building has been a
pre-existing, non-conforming use under zoning law. Under the latter
section of the Code a number of factors are listed that must be
considered by this Board to approve a structural alteration to an
existing building. Under Section 230-57(c)(1)(a)(2) the fire company
had a non-conforming setback situation and previously this Board has
allowed enlarge-ment of properties that did not further encroach in
set back but are consistent with existing non-conforming set backs.
Under (a)(3) he believes that market conditions of operating a
growing fire suppression operation are not actions resulting from the
fault of the applicant but rather the natural growth of the fire
company. He also does not feel that such a request has been denied
to other similarly situated structures in the same district. He
added that under (d)(2) the Board is specifically permitted to
consider the doctrine of natural expansion dealing with the public’s
welfare. He identified fire suppression operations as being
consistent with protecting the public’s welfare and safety.
This is all conditional on a favorable opinion from HAC.
Mr.
Akin made a motion that the set back variances requested in this
application be granted for the reasons stated on the record and that
the Board grant the variances but conditioned upon receipt of a
favorable recommendation by the HAC of all issues pertaining to the
proposed addition that are within their purview to address. Mr.
Athey seconded the motion.
Mayor
Klingmeyer asked for clarification about whether non-conforming uses
as a special exception ceases to exist as a non-conforming use. Mr.
Akin said that up until tonight’s action technically the fire
company has been a non-conforming
use because apparently this Board has never granted a special
exception. (Additional
discussion followed.)
Mr.
Athey voted in favor of the motion and did not add any more
rationale.
Mayor
Klingmeyer voted in favor agreeing with the City Solicitor’s
comments.
Mr.
Akin is in support of the motion for the reasons stated.
The
motion carried by unanimous vote.
Mr.
Taylor asked for clarification of the process moving forward. If HAC
gives a favorable opinion the report will be sent to
the Board of Adjustment for the final report through the City
Solicitor. Mr. Akin will contact the HAC and request minutes of any
action taken on this matter.
The
hearing was adjourned at 8:40 p.m.
Exhibits:
#2
– Notice materials for the first hearing
#3 -- Plan showing
floor plan including proposed front elevation and left elevation
Respectfully
submitted,
Debbie
Turner
Stenographer
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