2018-15_4285 Graham Ct_Disposition Packet
N O T I C E
FINDINGS AND DECISION OF THE CITY OF BOULDER BOARD OF ZONING
ADJUSTMENT DISPOSITION OF ZONING CASE
DOCKET NUMBER 2018-15
CONCERNING THE APPLICATION FOR A PARKING IN LANDSCAPE SETBACK VARIANCE
REQUIREMENTS OF SECTION 9-7-1 & 9-9-6, B.R.C. 1981 AT 4285 GRAHAM COURT OF KEELI BIEDIGER,
WHOSE MAILING ADDRESS IS 4285 GRAHAM COURT, BOULDER, COLORADO 80305.
On July 12, 2018, the City of Boulder Board of Zoning Adjustment, a quorum being present, held a public
hearing, after giving notice as required by law, on the application for the following variance:
As part of a proposal to establish parking on the property, the applicant is requesting a variance to the minimum
front (southeast) yard landscape setback for the recognition of two parking spaces on an existing 18’4” wide
driveway/parking area located entirely within the front yard. The resulting front (southeast) yard setback for both
spaces will be 6 feet where 25 feet is required and no conforming parking exists on site today. Sections of the Land
Use Code to be modified: Sections 9-7-1 & 9-9-6, BRC 1981.
Based on our field investigation and the relevant testimony, exhibits, and other evidence introduced at the
hearing, and in accordance with the applicable provisions of the Boulder Revised Code, 1981, we find by a
preponderance of the evidence that the criteria for granting a variance have been met, and grant the variance as
requested subject, however, to the following condition:
1) To recognize one parking space on the existing 18’ 4” wide driveway which is located within the front
yard setback.
This variance is limited to the use and structure for which it was requested, including the location on the
lot and maximum height, as approved by the Board of Zoning Adjustment.
This variance was approved by the vote of 5-0.
EXECUTED this 12th day of July 2018, effective as of, July 12, 2018.
Michael Hirsch, Presiding Officer of the Board at the Meeting
By: ____________ ____________________________
Robbie Wyler, Secretary to the Board of Zoning Adjustment
This decision constitutes a final decision as of the date of the hearing at which it was reached. If a variance was
granted, the variance expires within 180 (one hundred eighty) days from the date on which it were granted unless
a building permit for such variance is applied for within such period.
CITY OF BOULDER
Planning and Development Services
1739 Broadway, Third Floor • P.O. Box 791, Boulder, Colorado 80306-0791
phone 303-441-1880 • fax 303-441-3241 • email plandevelop@bouldercolorado.gov
www.boulderplandevelop.net
BOZA Disposition of Approval Page 1 of 22
Revised May 2017
400.pdf
City of Boulder Planning and Development Services
1739 Broadway, third floor • PO Box 791 • Boulder, CO 80306
Phone: 303-441-1880 • Fax: 303-441-3241 • Web: boulderplandevelop.net
BOARD OF ZONING ADJUSTMENT (BOZA)
VARIANCE APPLICATION
APPLICATION DEADLINE IS 4:00 P.M. ON THE THIRD WEDNESDAY OF EACH MONTH.
MEETING DATE IS 5:00 P.M. ON THE SECOND THURSDAY OF THE FOLLOWING MONTH.
Submittal of inaccurate or incomplete information will result in rejection of the application.
STAFF USE ONLY
Doc. No. _______________ Date Filed _________________Zone______________Hearing Date _____________
Application received by: Date Fee Paid Sign(s) Provided
GENERAL DATA
(To be completed by the applicant.)
• Street Address or General Location of Property:
• Legal Description: Lot Block Subdivision (Or attach description.)
• Existing Use of Property:
• Description of proposal:
*Total floor area of existing building: *Total gross floor area proposed:
*Total building coverage existing: *Total gross building coverage proposed:
*Building height existing: *Building height proposed:
*See definitions in Section 9-16-1, B.R.C. 1981.
Name of Owner:
• Address: Telephone:
• City: State: Zip Code: Email:
Name of Contact (if other than owner):
• Address: Telephone:
• City: State: Zip Code: Email:
BOZA Disposition of Approval Page 2 of 22
2
APPLICATION TYPES
Setback, building separation, bulk plane, building coverage, porch setback and
size, and side yard wall articulation
Sign Variance
Mobile Home Spacing Variance
Size and parking setback requirements for accessory units
Use of mobile homes for non-residential purposes
Parking in landscaped front yard setback
APPLICATION REQUIREMENTS
As a minimum, the following items MUST be attached, collated and hereby made a
part of this application:
• If applicant is other than owner(s), a written consent of the owner(s) of the property
for which the variance is requested;
• A written statement thoroughly describing the variance request and addressing all
pertinent review criteria for approval - see following pages (3 copies);
• A signed and stamped Improvement Location Certificate or Site Improvement
Survey and legal description by a registered surveyor (3 copies);
• A site development plan including setbacks, elevations, interior layout/floor plans
and any other pertinent exhibits (3 copies);
• A demolition plan clearly differentiating between existing/remaining and proposed
portions of the structure(s) (3 copies);
• Any other information pertinent to the variance request (e.g. neighbor letters,
photos, renderings, etc.) (3 copies);
• Sign Posting Acknowledgement Form - see last page.
NOTE: The applicant is responsible for posting the property in compliance with city
requirements. Signs will be provided to the applicant at the time of submission of
the application. The applicant will be responsible for posting the required sign(s)
within 10 days of the hearing date. Failure to post the required sign(s) may result in
the postponement of the hearing date.
• An electronic file(s) of all materials must be submitted on a CD or thumb drive with
your application;
• An application fee (as prescribed in Section 4-20-43, B.R.C. 1981);
NOTE: SEE SECTION 9-2-3(l), B.R.C. 1981 FOR VARIANCE EXPIRATION INFORMATION
Applicant Signature ______________________________________Date__________
Owner (if other than Applicant) Signature _________________________Date__________
BOZA Disposition of Approval Page 3 of 22
SIGN POSTING REQUIREMENTS
APPLICANT’S ACKNOWLEDGMENT FORM
Required for Certain Land Use Review, Administrative Review, Technical Document Review, and Board of
Zoning Adjustment Applications
I, , am filing a Land Use Review, Administrative Review, Technical
for the property
(PRINT PROPERTY ADDRESS OR LOCATION)
and agree to the following:
1. I understand that I must use the sign(s) that the city will provide to me at the time that I file my application. The sign(s)
will include information about my application and property location to provide required public notice.
2. I am responsible for ensuring that the sign(s) is posted on the property described above in such a way that meets the
requirements of Section 9-4-3(c), B.R.C. 1981 (listed above), including visibility of the sign(s) and time and duration of the
sign(s) posting, and including reposting any signs that are removed, damaged, or otherwise displaced from the site. As
necessary, I shall obtain a replacement sign(s) from the city for reposting.
3. I understand that certain future changes to my application, including but not limited to, changes to the project description
or adding a review type, may require that I post a new sign(s). The city will notify me if such a reposting is required and
provide me with a necessary replacement sign(s).
4. I understand that failing to provide the public notice by sign posting required by the city’s land use regulation may result
in a delay in the city’s issuing a decision or a legal challenge of any issued decision.
NAME OF APPLICANT OR CONTACT PERSON DATE
Please keep a copy of this signed form for your reference. If you have any questions about the sign posting requirements or to
obtain a replacement sign, please call 303-441-1880.
CITY CODE REQUIREMENT FOR SIGN POSTING OF LAND USE REVIEW APPLICATIONS -
Excerpt of Section 9-4-3(c), B.R.C. 1981: Public Notice of Application: The city manager will provide the following public
notice of a development review application:
(1) Posting: After receiving such application, the manager will cause the property for which the application is filed to be posted with a
notice indicating that a development review application has been made, the type of review requested, and that interested persons may
obtain more detailed information from the planning department. The notice shall meet the following standards:
(A) The notice shall be place on weatherproof signs that have been provided by the City and placed on the property that is
the subject of the application.
(B) All such notice shall be posted no later than ten days after the date the application is filed to ensure that notice is posted
early in the development review process.
(C) The signs shall be placed along each abutting street, perpendicular to the direction of travel, in a manner that makes
them clearly visible to neighboring residents and passers-by. At least one sign shall be posted on each street frontage.
(D) The signs shall remain in place during the period leading up to a decision by the approving authority, but not less than
ten days.
(E) On or before the date that the approving authority is scheduled to make a decision on the application the city manager
will require the applicant to certify in writing that required notice was posted according to the requirements of this section.
(PRINT NAME OF APPLICANT OR CONTACT PERSON)
Document Review, or BOZA application [on behalf of]
located at
(PRINT NAME OF OWNER(S) IF OTHER THAN APPLICANT/CONTACT)
. I have read the city's sign posting requirements above and acknowledge
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Frascona, Joiner, Goodman and Greenstein, P.C.
Oliver E. Frascona (1947-2014)
Jonathan A. Goodman
Gregg A. Greenstein
Cinthia M. Manzano
Jonathan H. Sargent
Michael A. Smeenk
Jordan C. May
June 5, 2018
Board of Zoning Adjustment
City of Boulder
1739 Broadway, Third Floor
Boulder, CO 80302
Re: Variance to allow two parking spaces in the front yard setback to meet the off-street parking
requirement at 4285 Graham Court, Boulder, CO 80305
Dear Board of Zoning Adjustment:
This law firm represents Keeli Biediger (“Ms. Biediger,” or the “Applicant”), the owner of 4285
Graham Court (the “house,” or the “property”). Ms. Biediger’s house was subject to a garage conversion
which has left the house without off-street parking that meets the requirements of Boulder Revised Code
(“BRC,” or the “Code”). She is therefore requesting a variance to bring the current configuration on the
property into compliance with Code.
I. Background
The Applicant’s parents bought the property in 1970. In 1977, Ms. Biediger’s mother converted
the garage to livable space. Ms. Biediger has lived in the house practically for her whole life and was a
girl when the garage conversion was completed. Notwithstanding that the property in its current
configuration has existed harmoniously in and with the neighborhood for so long that it is now an
essential component of the character of the block, the Applicant desires the requested variance to legalize
that configuration. She is coming forward and making this application voluntarily.
The property lacks Code-compliant off-street parking because the front yard is not deep enough
for a parking space that does not encroach into the 25-foot landscape setback. Such setback is required
under Code § 9-9-6(d)(1)(a). Also, the width of the house relative to the width of the lot makes the
available side yard space (about 7.5 feet on either side of the house) too narrow to provide for a Code-
compliant parking space in either side yard. This variance request is to recognize two parking spaces
that conform to the nine-foot by 19-foot size of a standard Boulder parking stall, which spaces shall
be located in the existing driveway. Since the conversion of the garage 41 years ago, the off-street
Attorneys at Law
A Professional Corporation
4750 Table Mesa Drive, Boulder, Colorado 80305-5541
Telephone (303) 494-3000 Facsimile (303) 494-6309
www.frascona.com e-mail: harmon@frascona.com
of Counsel
Gary S. Joiner
Janice H. Louden
G. Roger Bock
Karen J. Radakovich
David A. Farus
Benjamin J. Daniels
T. Damien Zumbrennen
Britney Beall-Eder
Harmon W. Zuckerman
Zachary A. Grey
Paige S. Ormond
C. Andrew Meyer
Brittaney D. McGinnis
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Frascona, Joiner, Goodman and Greenstein, P.C.
June 5, 2018
Page 2 of 7
parking has been provided within the front yard setback, primarily in the driveway and, on occasion, on
the patio in front of the house.
Because of the prevalence of illegal garage conversions in Boulder, there is a Code section which
provides for a specific variance to formalize and legalize such conversions. This section is BRC § 9-2-
3(j), and it includes seven criteria that must be met to allow such a specific variance to be granted. Here,
the application meets each of the first six criteria. It does not meet the letter of the seventh criterion, BRC
§ 9-2-3(j)(7), which provides that the parking space shall not more than 16 feet in width, because the
Applicant desires two parking spaces and a 18’4”-wide driveway. The existing driveway is paved in
concrete and is 18’4” wide and 29’7” deep. Therefore, the Applicant has chosen, after confirming this
direction with staff, to apply for the requested variance under the general variance criteria. It is within the
powers of the Board of Zoning Adjustment to grant the requested variance based on the application’s
compliance with the general criteria, notwithstanding the existence of the Code section that provides for a
specific variance to legalize unpermitted garage conversions.
II. Argument
The following are some common sense, Code-based, and City policy-based reasons which
support the variance request:
• The environmental impact of leaving the driveway in place, unchanged, is de minimis. On the
other hand, removing 9’4” of the driveway’s width in order to leave only the minimum 9’x19”
space to meet the spirit of the Code (“to minimize the visual and environmental impacts of
excessive parking lot paving,” BRC § 9-9-6(a)), would involve saw cutting almost 300 square
feet of concrete, removing and landfilling about five cubic yards of waste concrete and other
material, importing the same volume of material as topsoil, and then planting, watering, weeding,
and maintaining a narrow and isolated strip of landscaping thereafter. There is significant
environmental impact in removing the concrete, and for marginal benefit.
• The Code contains no maximum driveway width, only the maximum width of an individual
parking space. Driveways that are 18 or more feet wide exist in many locations in Boulder.
• The Design and Construction Standards (DCS), which are incorporated by reference into the
Code, delimit curb cut width for Single Family Residential properties to 10’ minimum and 20’
maximum. DCS § 2.04 Site Access and Table 2-2: Access Design Specifications. The Standards
allow curb cuts of 20 feet, which would serve the existing 18’4” driveway width.
• The Code provides that “if all off-street parking requirements … have been met, persons may
park up to two additional vehicles in the driveway leading to the parking area.” BRC § 9-9-
6(d)(1)(A). This Code provision has resulted in an expectation that residents in the RL-1 zoning
district may park multiple cars in their driveways. With a driveway length of less than 30 feet on
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Frascona, Joiner, Goodman and Greenstein, P.C.
June 5, 2018
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the property, not more than one car can be parked in the driveway unless side-by-side parking is
allowed.
• The original driveway was only wide enough to serve the garage, but the additional paved area in
front of the side yard was used for parking a camper for most of the years up to Ms. Biediger’s
mother’s death in 2013, so the parking area has appeared to be two spaces wide since at least 40
years ago and thereby has become a component of the character of the block.
• The existing driveway, which was paved to its current width in 2013, is in excellent condition.
III. Variance Criteria
The Board of Zoning Adjustment may grant a variance to the requirements of Section 9-9-6,
“Parking Standards,” to allow the requested two parking spaces within the front yard setback if it finds
that the application satisfies the criteria in BRC § 9-2-3(h)(1) and (5).
The proposal meets the requirements of Paragraph (h)(1), Physical Conditions or Disability,
as follows:
(A) There are:
(i) Unusual physical circumstances or conditions, including, without limitation, irregularity,
narrowness or shallowness of the lot or exceptional topographical or other physical conditions peculiar
to the affected property; or
(ii) There is a physical disability affecting the owners of the property or any member of the family
of an owner who resides on the property which impairs the ability of the disabled person to utilize or
access the property[.]
Response: the width of the house relative to the width of the lot makes the available side yard
space (about 7.5 feet on either side of the house) too narrow to provide for a Code-compliant parking
space in either side yard. This vitiates the possibility of parking additional vehicles in the driveway
leading to the parking area as allowed by Code (BRC § 9-9-6(d)(1)(A)) and expected by residents in the
RL-1 zoning district.
(B) The unusual circumstances or conditions do not exist throughout the neighborhood or zoning
district in which the property is located[.]
Response: within the RL-1 zoning district, it is unusual for a house to not have (1) a side yard that
is wide enough to contain a compliant parking stall, (2) a garage or carport available to satisfy the off-
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Frascona, Joiner, Goodman and Greenstein, P.C.
June 5, 2018
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street parking requirement, or (3) a driveway deep enough to allow for the parking of additional vehicles
as allowed by Code.
(C) Because of such physical circumstances or conditions the property cannot reasonably be
developed in conformity with the provisions of this chapter[.]
Response: the driveway at the property is so short that no additional vehicles would be parkable
in the driveway unless side-by-side parking is allowed. The Code allows residents of the RL-1 to park up
to two additional vehicles in the driveway leading to the parking area. The intent of this Code provision
is to recognize that the residents of single-family residential houses are often families or groups of
individuals that have multiple cars, and there is a benefit to allowing them to be parked off-street. This
benefit accrues both to residents and entire neighborhoods by increasing the ease of parking on private
property and on the street. Limiting the parking to a single stall would violate the letter of BRC § 9-9-
6(d)(1)(A) and the spirit of BRC § 9-9-6.
(D) Any unnecessary hardship has not been created by the applicant.
Response: the garage conversion in subject property occurred in 1977, when the applicant was a
small child and not the owner of the house.
All variance approvals must meet the requirements of BRC § 9-2-3(h)(5). The proposal
meets the requirements of Paragraph (h)(5), Requirements for All Variance Approvals, as follows:
(A) Would not alter the essential character of the neighborhood or district in which the lot is
located[.]
Response: The Martin Acres neighborhood in South Boulder is made up largely of ranch-style
houses such as the subject property. Most blocks are zoned RL-1, a single family, low density residential
zoning district with a minimum lot size of 7,000 square feet, or about six houses per acre. The
neighborhood contains a mix of homeowner-occupied and rental houses, and most houses are of a
relatively modest size. Many houses in Martin Acres also have attached garages that have been converted
to living space.
The Code does not require driveways to be one parking stall in width, and in fact, the DCS allows
curb cut widths for Single Family Residential properties to be as wide as 20 feet to support two-car
driveways and/or garages. The area under the current 18’4”-wide driveway been used for side by side
parking for the majority of the past 48 years. The driveway has been integrated into the existing front
yard landscaping so that it appears to be a hardscape component of the landscape design. It has become a
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Frascona, Joiner, Goodman and Greenstein, P.C.
June 5, 2018
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part of the character of the block and does not in any way stick out as unusual in the neighborhood. It
resembles many other such driveways that have been constructed at the same width in the neighborhood.
(B) Would not substantially or permanently impair the reasonable use and enjoyment or
development of adjacent property[.]
Response: Granting the variance requested would not result in any impairment in the reasonable
use and enjoyment or development of adjacent property. Recognizing the location of two parking spaces
in the front yard setback, where two vehicles have generally been parked since the 1970s, would cause no
such impairment.
(C) Would be the minimum variance that would afford relief and would be the least modification
of the applicable provisions of this title[.]
Response: There is no provision in BRC § 9-9-6 that prohibits, per se, a two-car wide driveway.
In fact, the Code provision which stands for the City’s desire to minimize the visual and environmental
impacts of excessive paving, BRC § 9-9-6(a), is merely a “Rationale” and not a specific standard, and it
refers to parking lot paving, not driveways. To the extent that Code is being interpreted as requiring that
single-family residential driveways be limited to one stall in width, which is an arguable interpretation,
allowing the existing driveway to remain in its current 18’4” width is the least variance that would afford
relief, and it would be the least modification of the Code.
For the component of this request that is proposing parking in the front yard setback, the request
could not be for a lesser variance. This is because, without reconverting the garage from living space to
parking area, and given the 7.5-foot side yard setbacks, the front yard setback is the only area available on
the parcel that can accommodate off-street parking to meet City requirements.
As to the component of this request that is proposing to allow retention of the current 18’4”-wide
driveway, this is also the least variance that would afford relief. The short depth of the driveway makes
tandem (i.e., front-to-back) parking impossible. To allow the parking of additional vehicles in the
driveway as allowed by Code and expected by RL-1 residents, the only option is side-by-side parking.
Any lesser variance would not afford relief.
(D) Would not conflict with the provisions of Section 9-9-17, “Solar Access[.]”
Response: The requested relief would have no impact on solar access.
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June 5, 2018
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IV. Additional Information Regarding ADU
As you may be aware from living in this community and/or reading some articles in the Daily
Camera last year, the subject property, going back to when the Applicant was a child and her mother was
the owner, has been used as an owner-occupied house with an accessory dwelling unit (“ADU”). Staff
from Code Enforcement and Planning & Development Services, as well as the City Attorney’s Office, are
aware of this use. Ms. Biediger being allowed to continue operating the ADU because of City Council’s
direction to staff regarding enforcement in light of the current ADU Update and the interim enforcement
policy as promulgated by the City Attorney.
The interim ADU enforcement policy is as follows: while the City will still be (1) enforcing the
Code and (2) working to bring illegal ADUs into compliance, it will also be (3) avoiding waste by not
requiring demolition and (4) respecting existing leases, provided that the ADUs are not violative of health
and safety regulations (see Exhibit B, October 23, 2017 e-mail from the City Attorney to City Council).
Ms. Biediger has been subject to enforcement action and has submitted to all required requests and
inspections by the City. The ADU use is not in violation of any health and safety regulations. Her
tenants remain in the ADU under valid existing leases. To require the demolition of a portion of the
driveway would be in direct contravention of the City Attorney’s guidance in #3 above, which is to “do
no harm” by not requiring demolition of accoutrements of existing unpermitted ADUs while the ADU
ordinance is being considered for revision. Adherence to this policy is the best way to avoid a
nonsensical scenario where the Applicant is required to remove a portion of the driveway as a condition
of the requested variance only to be required to replace that same portion if Code requires an additional
off-street parking stall to support the ADU.
Notwithstanding the foregoing, this variance request is to be reviewed separately from the ADU
issue. The ADU issue is a question of use – i.e., to what use may the property be put under Code and
zoning? The setback variance, on the other hand, is a matter related to development standards.
Irrespective of whether the ADU use is eventually permitted, the requested variance is needed to ensure
compliance with development standards and therefore needs to be addressed and resolved.
V. Conclusion
Based on the application’s compliance with the requirements for approval of variances, the Board
of Zoning Adjustment may approve this application. To do so would be to allow a long-term, lifetime
Boulder resident to remedy a non-compliant parking situation that she did not herself create and which
works no known impairment on neighbors or the community.
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Frascona, Joiner, Goodman and Greenstein, P.C.
June 5, 2018
Page 7 of 7
Ms. Biediger is one citizen who is making a voluntary effort to come into Code compliance, and
we hope that the Board of Zoning Adjustment recognizes that. More importantly, we hope and request
that you determine that this application meets the criteria for approval of the requested variance, and that
you will therefore vote your approval.
Sincerely yours,
Frascona, Joiner, Goodman and Greenstein, P.C.
By: Harmon W. Zuckerman, Esq.
harmon@frascona.com
Attachments:
1. Written consent of owner
2. Written statement/narrative
3. Improvement Location Certificate
4. Site development plan – Upper Level
5. Site development plan – Lower Level
6. Affidavit of Carl Paxton
7. Affidavit of Ethel Paxton
8. Affidavit of M’Liss Biediger
9. Petition in support of application
10. Photograph looking east
11. Photograph looking north
12. Photograph looking west
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