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A
New Castle City Board of Adjustment Hearing took place on
September
21, 2009 at 7:00 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
Mayor
Klingmeyer called the meeting to order at 7:00 p.m. City Solicitor
Roger Akin and City Engineer David Athey were introduced.
The
Mayor read the Notice of Public Hearing that states, “An
application has been filed by Twin Spans Business Park, LLC, 29 East
Commons Blvd., Suite 100, New Castle, Delaware, to reduce the
required 20 foot sideyard setback to 4.8 +/- feet, which is the
current setback of an existing building located at 400 Ships Landing
Way, New Castle, Delaware, parcel number 21-012.00-001.
For
the purpose of considering this application, the Board of Adjustment
will hold a Public Hearing on Monday, September 21, 2009 at 7:00 p.m.
in Old Town Hall, 2nd
Floor, located at 2nd
and Delaware Street, New Castle, Delaware.”
An
affidavit of publication was published in the News Journal on 9/6/09.
Mr. Bergstrom confirmed that the property has been properly
posted. He then provided a brief background of the application.
The applicant is proposing raising the walls of the existing building
which are approximately 4.8 feet from the adjacent R3 property line
and City Code requires a 20 foot setback when an industrial building
is located next to a residential district. Raising the walls of the
building represents an increase in volume of a now non-conforming
structure. The application fee has been paid.
(All
parties providing testimony were sworn in by the Mayor.)
Mr.
Shawn Tucker is representing the applicant, Twin Spans Business Park
LLC. He confirmed Mr. Bergstrom’s background description.
This existing non-conforming situation was established in the early
1970s. The height being proposed is within the height limitations in
the Code. Their application focuses on the variance request for the
setback. The building height will increase about 12 feet for storage
purposes which is driven by the market to allow them to be more
competitive. The current height is approximately 27 feet and the
additional 12 foot height would still be under the 45 foot
limitation.
Mr.
Mark Ziegler, Civil Engineer with McBride and Ziegler, presented to
the Board. He used a color aerial photograph to describe the
location of the property in question with its surroundings. A record
plan from Tetra Tech recorded on 12/1/94 showing the current
footprint that was previously approved by the Planning Commission and
Council was distributed to Board members and entered as Applicant
Exhibit #1. Mr. Athey disclosed that he was responsible for the
plan’s preparation while employed at that time at Tetra Tech,
but Mr. Akin stated there is no conflict of interest that would
prohibit his hearing and voting on this application. Mr. Tucker
noted a bump out on the building where railroad tracks end. This is
the area at the end of the existing building that is in the setback.
The area in the setback is approximately 5%-6% according to
Mr. Ziegler. Mr. Ziegler confirmed that building plans that were
approved for this site are consistent with the record plan from Tetra
Tech. Concerning the surrounding area, Mr. Ziegler said it is
difficult to see the church site because of the dense vegetation
around the site. He does not feel there would be any adverse impact
on neighboring properties as a result of the addition of 12 feet to
raise the roof of the bump out area. Aerial photos were entered as
Applicant Exhibit #2. Four (4) color photographs were entered as
Applicant Exhibit #3. The construction plan drawing was entered as
Applicant Exhibit #4. There were no objections noted with any of the
exhibits.
Using
a drawing showing the site, Mr. Ziegler provided a description of the
two (2) previous expansions to the building. The drawing was entered
as Applicant Exhibit #5.
Mr.
David Sills, general contractor/developer, appeared on behalf of the
applicant. He testified that approximately 12 feet would be added to
the building if approval is granted. He then provided a brief
history of market changes that have led the applicant to seek a
variance in order to be competitive. Changes are relative to the
cost of ground and the new technology involved with material handling
equipment and fitting more storage in less space. (The
building is currently owned (2003) by Harvey Hanna and Associates.)
There
were no members of the public who appeared in favor or against the
variance application.
Mr.
Tucker provided a hand out detailing his summary of standards. He
cited the Quik Check analysis. The building is in a predominantly
industrial zone that is adjacent to a residential zone which is
heavily wooded. The closest structure is approximately 600 feet
away. The nature of the zone is not such that this proposed variance
would conflict. The character of the area would not be impacted; the
situation has been in existence since the early 1970s without issue.
Removing the setback would not seriously affect neighboring
properties considering these uses have been working harmoniously for
many years and because of the dense vegetation. Lastly, the changes
in the market do present a special circumstance concerning being
competitive. The Supreme Court in Delaware has ruled that the need
to be competitive with other uses in the marketplace may be a reason,
though not the sole reason, to seek a variance.
In
the City of New Castle there is additional language other than State
law that needs to be satisfied. Special circumstances or conditions
exist which are peculiar to the land, structure or buildings which
are not applicable to other land, structure or buildings in the same
zoning district. Testimony confirms the structure was built in the
early 1970s and may be the only building in this district that has a
non-conforming setback which makes it unique. The railroad track
explains why the bump out is where it is located. The railroad is
not operational at this time and there is no intention of the owners
to use rail service. Most of the rail has been removed.
That
literal interpretation would not deprive the applicant of rights
commonly enjoyed by other properties in the same zoning district.
Since the conformity is existing today then building up would be
consistent with the rights of others who may do the same.
Special
conditions and circumstances do not result from the applicant’s
actions. Testimony has been received detailing the changes in the
market place.
Granting
of a variance request does not convey on the applicant any special
privilege that is denied to other land, structure or buildings in the
zoning district. The applicant does not intend to exceed the height
limitations. The setback has been in place since the early 1970s.
Mr.
Tucker addressed Section 230-9(a) of the City Code that speaks to
expansions and non-conforming conditions. In this case the use is
not changing, and the estimated cost of the any building involved
does not exceed 50% of the replacement value of the building as
determined by the Building Inspector in light of the building’s
current assessed value. Mr. Bergstrom stated that raising the roof
of the structure would not increase the assessed value of the
structure by half or more. Lastly, the Code allows for any
conditions or safeguards be applied, but the applicant does not
believe this is necessary given the nature of the application.
Mr.
Athey inquired about the chronology of the City’s zoning code.
Mr. Bergstrom informed it was first enacted in 1950 and the modern
code was enacted in 1968. Mr. Athey questioned the building being
non-conforming given language in the code versus when the building
was constructed. Mr. Tucker informed they also questioned the
language but moved forward with the variance to be cautious.
The
applicant has attempted to connect with the adjacent property owner
about purchasing the 15 foot strip of land next to their property and
eliminate the non-conformity entirely. Mr. William Lower,
representing Harvey Hanna and Associates, Inc., confirmed that the
applicant did attempt to contact the property owner about all options
for this property and that there is a meeting scheduled on the
evening of 9/22/09. He added that Mr. Hanna enjoys a productive
relationship with Rev. Godden and his team and they are good
neighbors. The meeting will be with the church’s Property Use
Committee.
Mr.
Athey inquired whether the church is aware of this plan. Mr.
Bergstrom said the property was posted and the church has been to
several Council meetings to discuss concerns relative to this
property so he believes they are informed on the matter. The church
is concerned with the proposed rezoning of the church’s
property to open space that the Planning Commission recommended.
The
Board had no further questions.
Mr.
Athey has no problem with this project. The church parcel may be
rezoned as part of the Comprehensive Plan which would negate the need
for the variance. It is an R3 parcel with one side being OS&R
and the other side Industrial. He would like to have seen a letter
from the church or have a representative here tonight, but the
applicant has presented a good case.
Mr.
Akin is in basic agreement with Mr. Athey. The portion of the
building with the bump out that creates the setback violation has
been in existence for several decades and Mr. Tucker has informed
that he is unaware of any problems that the setback violation has
caused to the church owners. There is wooded land between the bump
out portion of the building and the adjacent property. Mr.
Tucker has satisfied the Quick Check standards as well as the
ordinance variance standards. He asked the Board if they wish to
consider a height restriction since testimony has revealed that
building heights have increased continually over the years. The
applicant is requesting to build up to a height of 39.4 feet and
there is still room left to build to reach the City’s height
restriction. He advised the Board that he has done research on this
issue and additional height which does not increase any setback
violations is permitted. There does not appear to be any case law in
Delaware that says if you have a setback violation you can’t go
higher to the maximum height restrictions. The section of the Code
that Mr. Tucker referenced clearly states that you can increase the
cubical volume of a non-conforming structure as long as you are not
increasing the setback violation. He confirmed that a variance would
be appropriate.
Mayor
Klingmeyer agrees with the rationale of both Messrs. Athey and Akin.
Mr.
Athey made a motion to grant the variance from the 20 foot side yard
setback to 4.8 feet (+/-) as shown on the application. Mr. Akin
seconded the motion.
The
motion was approved by unanimous vote.
The
hearing was adjourned at 7:50 p.m.
Respectfully
submitted,
Debbie
Turner
Stenographer
Applicant
Exhibits
Applicant Exhibit #1 – Tetra Tech Record
Plan
Applicant Exhibit #2 –
Aerial photos of project site
Applicant Exhibit #3 – Four
(4) color photographs
Applicant Exhibit #4 – Construction
Plan Drawing
Applicant Exhibit #5 – Site Drawing
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