Variance 1213 –724 Custer Avenue, Side Setback - A variance from 27-308  requiring an 8-foot side setback for a 2 story structure to allow a 1-foot 9-inch side setback for a 2^nd story addition to an existing dwelling in a Residential 6,000 (R-60) zone, on Lots 41, 42 and the East 12.3 feet of Lot 40, Block 5, Yellowstone Addition Subdivision, a 5,600 square foot parcel of land. Tax ID: A18941

The Planning Division is recommending conditional approval and adoption of the findings of the 7 criteria for Variance 1213.

OWNER: Jayne Christenot
AGENT: None
LEGAL DESCRIPTION: East 12.3 feet of Lot 40, Lots 41 & 42, Block 5 Yellowstone Addition Subdivision
ADDRESS: 724 Custer Avenue
CURRENT ZONING: R-60
EXISTING LAND USE: Single family dwelling
PROPOSED USE: Same with 2nd story
SIZE OF PARCEL: 5,600 square feet

None.

The BOA has reviewed 12 similar variances in this area since 1978. Three of these applications have been denied and 9 have been approved. Since 2010, the BOA has reviewed 3 similar variances and approved 2 of those variances. One was for an addition to connect an existing detached garage with a dwelling resulting in less than the required 5 foot setback for the connected garage (502 Miles Avenue). The second approved variance was for an existing 2-story structure with a 2-foot side yard setback. The variance allowed the owner to re-finance and insure the existing structure at 415 Cook Avenue. The third variance was denied for a 1-foot side setback for a proposed carport addition at 416 Terry Avenue.

NORTH:	Zoning: R-60 Land Use: Single family residence
SOUTH:	Zoning: R-60 Land Use: Single family residence
EAST:	Zoning: R-60 Land Use: Single family residence
WEST:	Zoning: R-60 Land Use: Single family residence

The owner started a re-roofing project in October 2014. The applicant's contractor discovered rotten lumber when tearing off the old roofing material. The contractor did not alter the roofing permit but proceeded to remove the rotten lumber, and install new lumber essentially raising the roof line from an attic space on the second floor to a full 2nd story on the structure. The Code Enforcement Division received a complaint about the new construction without an approved permit. The contractor came into the Building Division in response to the complaint and submitted a new application stating the new lumber was necessary to support the roof and the upper story would remain less than a full story height wall. This modified building plan was approved. Another inspection by Code Enforcement revealed a full 8-foot wall height for a 2nd story addition to the original structure. The applicant and contractor were informed the full 2nd story addition would require a zoning variance since the structure was setback less than 8 feet from the west side property line.

The applicant states the need to provide living space on the 2nd story for relatives who assist with her daily living activities. The applicant has submitted a site plan and floor plans for the existing and proposed 2nd story living space. There appears to be a 2nd kitchen area on the upper floor, but no bedroom spaces are shown. It appears the 2nd floor space has an outside entrance from the back yard but no interior access between the 1st floor and the 2nd floor. The applicant states in her letter she purchased the home 20 years ago and the loan stated the attic bedroom had a separate entrance.

Two story dwellings are not common in this neighborhood. Many homes were built in the 1930s and 1940s and did not require more than a few feet for a side yard setback. The applicant indicates on the site plan the fence is not placed on the property line and is about 1 foot inside the property line. The total width of this lot is 40 feet from east to west. The site plan indicates the width of the house is 23 or 24 feet with a 14-foot side yard on the east side of the home. This leaves either 2 feet or 3 feet for the west side setback. The site plan indicates there is 1 foot and 9 inches between the west side of the structure and the fence. Since it is uncertain where the property line is located in relation to the fence, the Planning Division advertised the requested setback at 1 foot 9 inches.

Research of the property records indicates this property has paid and continues to pay solid waste fees for a "2-family" residence although the Department of Revenue assesses the structure as a single family dwelling with an attic living space. There is no interior connection between the first floor and the attic space. This has not changed with the addition of the 2nd story. The 2nd floor is accessed from a stairwell and deck on the rear of the structure.

Residential construction less than 5 feet from a property line normally requires fire-rated construction for the wall closest to the property line. This may also include any eaves and roof decking for the area of the structure closer than 5 feet. If the variance is approved, a building permit for the 2nd story addition including any interior plumbing or heating will be required. The Building Division will determine at that time the specific construction requirements for the addition.
The Planning Division is recommending conditional approval of the requested side setback variance. Although there are few examples of 2 story structures in the neighborhood, the Board of Adjustment has approved several similar variances in this neighborhood to reduce side yard or front yard setbacks. The adjacent property has a single story garage approximately 3 feet from the common property line, so the 2nd story addition is not crowding the adjacent home. Many homes in the neighborhood are constructed between 3 and 5 feet from at least 1 of the side property lines. The lot does present a hardship peculiar to this property. Most lots in this neighborhood are at least 50 feet wide while this lot is only 40 feet wide. This is the result of how the lots were platted in the early part of the last century. The Planning Division is recommending several conditions of approval to ensure the project is completed in a timely fashion and appropriate permits are issued.