Board of Zoning Adjustments, March 2, 2017

Layout for addition at 1603 Oxmoor Road

Layout for addition on East Hawthorne


Two cases in the Lucerne area fell to neighborhood opposition on Thursday, one harder than the other. Nearly 20 residents arrived armed with statistics, court citations and zoning precedent to argue down a plan to demolish a Lucerne house and divide the large lot into three smaller properties. The BZA, whose jurisdiction is limited to allowing minor adjustments to zoning regulations, agreed with objectors and unanimously turned down variances for smaller and narrower lot sizes. Not far away on Rockaway, a family planning to build a house to indulge its passion for working on cars and frequent entertaining was turned down for a variance allowing an oversized garage with hydraulic lift and other custom details.

Members present: Lauren Gwaltney, chair, Ty Cole, Brian Jarmon, Jeffrey Foster (S), vice chair, Beverly LeBoeuf, and Stuart Roberts (S).

Members absent: Matt Foley and Battalion Chief Nickolas Hill.

Staff present: Greg Cobb and Vanessa McGrath of the Building, Engineering and Zoning Department; Planning and zoning clerk Donna Bridges and planner Fred Goodwin.

Audience attendance: 25

*Note on procedure: By state law, zoning variances granted by the 5-member board require a super majority of 4 members voting in the affirmative. To keep business moving in case of absences, the law also allows two supernumerary members (S) to sit in and vote if needed. Variances expire in 180 days if a building permit isn’t obtained.

205 Fairlane Drive

205 Fairlane Drive

Granted a setback variance for an addition to a house on Fairlane:  One Call Construction presented his case to build a bathroom addition straight back from the current house, but crossing the left setback by 2.3-feet because the lot is narrower in the back. The bathroom can’t be moved out of the setback without moving the outdoor HVAC system and redoing the ductwork. The variances passed with little discussion.  


1723 Kensington Road

Granted to continue a significant setback variance for an addition on Kensington:  The homeowner at 1723 Kensington plans an addition and will extend and enclose a covered patio that already extends 4.7 feet into the left setback, requiring a 5.3-foot total setback variance. The additional foot is to accommodate a chimney. The left side is bordered by an alley between his and neighbor’s house.

With the case obviously won, Mr. Cole asked why he and the neighbor didn’t have the alley vacated so they could purchase it together and share the additional drive. With the additional space, the homeowner would not have needed a variance.

1807 Lancaster Road

1807 Lancaster Road

Granted a left setback variance for an addition planned on Lancaster:  Homeowners at 1807 Lancaster Road plan to add a second level bedroom addition in the rear and want to keep it in line with the current building, which is already 2.4 feet into the left setback. There were two letters in support and one letter expressing opposition to the destruction of a tree in the rear. There was some confusion then as board members began examining the wrong plans and then realized their mistake; the tree issue was irrelevant because it is not on the neighbor’s property.  The variance passed with few other questions.

Pergola at 322 Woodland Drive

Pergola at 322 Woodland Drive

Granted a setback variance for a pergola built on an existing deck/addition on Woodland:  The homeowner at 322 Woodland Drive asked for a 3-foot variance to replace rotting porch decking and railings on a side-yard deck and add a pergola, which is an open, arbor-like wooden structure that has overhead beams but no enclosed roof. The project was almost completed without a variance or permit due to confusion in November when city staff told the homeowner he didn’t need a permit for the repairs, then realized the pergola would require a variance and permit, because it was covered. The homeowner proffered that he would not enclose the pergola and with that the case was approved.

130 East Hawthorne Road

130 East Hawthorne Road

Granted variances on front and left sides for an addition on East Hawthorne:  The house at 130 East Hawthorne was built in the 1940s and is currently 2 feet over the left setback. A planned 1,100 square foot addition extending to the rear will cross the same setback in two additional places, for a total of two new variances and one continued variance. On the front, homeowners plan to add a front porch and a bay window, requiring a 4-foot variance from the front setback. Although the addition is within the required 25-foot minimum from the street, house fronts have to stay within a line between two adjacent houses. This was complicated by the fact that the subject house is on a curve. The board approved the variances with little discussion.

Plan for 208 Rockaway

Plan for 208 Rockaway

Rejected a variance on a split vote for a new house on Rockaway: Questions raised late in the case about a planned oversized garage with hydraulic lift split the board and ended in an unfavorable 3-2 vote to approve (variances require at least four out of five yes votes to pass).  1 letter expressed an objection and two others from the street expressed no objection. In addition, the neighbor living on the downhill side was concerned about drainage onto her crawlspace. That question had not yet been addressed.

208 Rockaway Road

208 Rockaway Road

The plan is for the owners, a couple now living elsewhere, to rebuild on the parents’ former property at 208 Rockaway Road after razing the “dilapidated” residence there. The husband is co-president of Birmingham Motoring Club whose plan was to customize the house to work on vintage collectible cars now maintained at a Chelsea storage property.  It was, ironically, the designers’ overly detailed and enthusiastic presentation of this plan that landed the two unfavorable votes. Architect Rebecca Whitlow of Revolutionary Architecture and engineer Cale Smith went on at length about accommodating the new owner’s passion and hobby for restoring cars–including the 1,000 square foot garage with hydraulic lift, kitchenette and half-bath–and the couple’s passion and habit of entertaining large numbers of people. Those two ideas, repeated frequently from the podium, prompted a spectator finally to ask if the owners planned to open an auto service business in the neighborhood. “It sounds like a business in Chelsea is moving here,” he said. The board then reopened the public portion of the meeting to question the explore that idea.

Ms. LeBoeuf asked if the cars were being restored to resell, in other words, a business. The owner said it was merely a hobby, that the cars were primarily small British sports cars and would not be worked on outside. The couple plans to keep the storage property in Chelsea. The large numbers of people were just family and friends who liked to drop by, she said.

A vote taken at this point was 3-2 in favor of the variance, which failed.

Voting no: Mr. Jarmon and Mr. Foster

Concept for three houses at 169 Lucerne. The variances for three undersized lots was rejected.

Concept for three houses at 169 Lucerne. The variances for three undersized lots was rejected.

Returning case: Unanimously rejected requests to waive lot area minimums for new houses on Lucerne:  Once again, developer and prospective homebuyer Ben Strout was requesting variances on lot sizes and widths in order to re-survey 169 Lucerne into three smaller lots as they were originally platted in the subdivision. As a stated hardship, Mr. Strout argued the resulting lots would fall short of the required sizes because a strip of land had been sold off the east end. Specifically, he requested a 665-square foot variance on lot 157, a 862 square foot variance on lot 158, and a 757 square foot variance on lot 159, with an equal 6-foot width variance on all three. All requests were denied.

[It is the Planning Commission, not the BZA, that rules on whether a property can be re-surveyed into smaller divisions. The question before the BZA was only if it would allow the smaller lot areas and widths if the PC allowed the redrawing.]

Drawing showing odd-shaped lot divisions proposed to preserve frontage on Lucerne. The developer will return to the drawing board.

Drawing showing originally proposed odd-shaped lot divisions. .

The case was carried over from last month, when Mr. Strout had proposed a vastly irregular redrawing of the property to preserve wide street frontage on the two end lots by setting the center lot back from the street (pictured). With neighbors opposed and a threatened rejection, he agreed to rethink the division and returned Thursday asking for equal lot divisions. This time, however, 18 residents stood up in opposition to the plan. None were present in support.

Opposition from residents:

  • A neighbor from 348 Lucerne said the variances and house designs depart so significantly from the norm that it was not an appropriate request for the BZA, which is to decide to minor adjustments to the zoning code. He argued that the average lot width, which is determined by an average of houses in a 500-foot impact area, is greater than the width proposed by Mr. Strout. He also argued that the house renderings were not in keeping with the neighborhood’s architecture.
  • A neighbor from 272 Lucerne said there have been two sinkholes in the street in front of the property. He asked the BZA to protect the look of the whole neighborhood while considering the individual request, and pointed out the developer’s stated hardship was self-inflicted, as the property didn’t have to be divided at all except for profit. Financial hardship is not an allowed justification to waive regulations.
  • A neighbor from 1165 South Shadesview Terrace said she was concerned the construction would destroy the tree buffer that shields her view of Lakeshore and helps muffle the traffic sound.
  • A neighbor from 375 Lucerne cited a state Supreme Court decision that found building a house across two lot lines established the two lots as one lot. That is the case on the current property. She also pointed to a concerning land settling on the easternmost lot.
  • Another neighbor said the BZA itself in 2006 had set a precedent by ruling against his request to divide property into smaller lots.
  • A neighbor at 313 Lucerne said the city had required merging two smaller lots into one to accommodate her renovation. She argued that the averages calculated by future developers would be affected by as much as 10% if the BZA granted these variances.

The builder responds:      

  • The builder said his plan was not a radical departure from the size or style of houses in the neighborhood. He said his goal was to retain the neighborhood’s character, pointing out that there were already new “castles” on the street that towered over older houses. He also said the proposed lot widths were consistent with 50, 60, and 70-foot lot width across the street and nearby. The computed average lot width that sets the norm is artificially higher because of extra large lots elsewhere in the neighborhood, he said.
  • To objections over the housing styles, the builder said renderings of houses circulated to neighbors were not necessarily what would be built.
  • Concerns raised last month about water draining across the property were “resolvable,” he said.

The board was obviously influenced by the degree of opposition. When a vote was called it was unanimously against granting the variances.

3036 Independence Drive

3036 Independence Drive

Granted a 20-foot rear variance for a new commercial building on U.S. 31 by CVS: Representatives with Inkana Development plan to add a second floor to the State Farm building (which is at 3036 Independence Drive, not the CVS Building at 3030, as published). Inkana was allowed to continue the non-compliant 20-foot rear variance the current building occupies in order to build an addition and spare 9 of the 10 existing parking spaces. The building is currently owned by the Baptist Foundation of Alabama.  

1603 Oxmoor Road

1603 Oxmoor Road

Granted a right building setback for a house on Oxmoor:  In the shortest case of the evening, homeowners at 1603 Oxmoor Road were allowed to continue an existing 2.2-foot right setback variance in order to build an addition approximately 25 feet to the rear.



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