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er- -• r BOARD OF ZONING APPEALS DECEMBER 2, 1987 PAGE 3 stated that if the variance is denied the developer cannot come back for a year, and this could possibly subject the members of the Board to liti.gation, if the n rop.er procedures are not followed. Mr.. Rosenthal suggested that the request be continued or tabled until the problems are resolved. Mr. Grace questioned if the Board could continue the pronosal so that these items could be worked out with the new governing bod,y, since he believes that this Board has a moral obligation to the condominium owners. Mr. Gareau stated that the Board could req_uest the developer to continue the request, but pointed out that many of these issues will be resolved during the normal apnroval process. In response to Mr. Grace's request to continue the request, Mr. King stated that the developer was not willing to continue the request, nointing out that they had addressed the traffic conce ms.of the condominium owners, th at many of the nroblem areas will be addressed by the Planning Dep artment who will see to it t.hat the code is observed; the issues of the ownershin of the name, the policy of no children or no'.:pets, the issue of what may or mav not have been represented in the condominium declaration are not in the jurisdiction of this Board and the financial obligation for maintenance and snow removal of the roads is dealt with in a recorded easement document that was given to each.buyer.as part of the.disclosure package. He stated that the developers are willing to meet. with the owners to address these issues, during.the approval process. Chai.rman Remmel stated that the Board had one item to address, whether to grant a variance for a three story building, or if the original plan should stand..whicn,.he,stated, wbuld give them more. C. Remmel moved that 1) there .is an unnecessary hardshi.p inherent in the premises which,would be caused by..strict application of the code, 2.) refusal to grant a variance would deprive the developer/owner of substantial pro- perty rights, 3) the granting of the variance would not be contrary to the intent of the zoning code, therefore I am moving to grant the three story apartment as requested with the understaning, of course, that the old ? foundation be removed and so on, seconded by R. Bugala. Mr. Gareau stated that it would appear that there is_ a defect in the code since in the Mixed Use District a high rise building can be multi-family and can be up to twenty stories but a mult.i-family building is restricted to 22 stories, so the variance actually reque.sted is to permit a building .between 22 and 5 stories. He q_uoted.Section 1149.05 (e) and stated there are two conflicting sections of code. Mr. Remmel questioned if his motion should include subject to detail development nlan,as stated in section 1149.05(e). Mr: Gareau stated the plan is automatically subject to that section. Mr. Grace stated that he objected to.the entering of excerpts of the zoning meeting of November 13, 1974 since he does not represent the feelings that,the Chairman has expressed. Mr. Gareau.further advised that if the Board would like to restrict the number of units that can be constructed, this could be added to the motion. Chairman Remmel amended the motion to include, permitting 54 units in the structure. Amendment was seconded by R. Bugalae Roll call on motion: Remmel, Bugala, and Helon, yes. Mr. Grace, no. Motion nassed. Variance granted. 1. S. & V. Pulito, 5990.Decker Road Request foz vaziance (1.123.12). Request 12 foot rear yard variance for p atio enclosure. Vi:olation of Ord. 87-93, Section 1135.08. Also request snecial permit to add to non-conforming dwelling (front set back). SDecial permission required Ord. 87-93, Section 1165.02.