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Regular
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| Board of Adjustment | |
| Date: | 08/02/2023 |
| Title: | City Variance 1268- 3903 Palisades Park Dr.- Fence Height |
| Presented by: | Karen Husman |
| Department: | Planning & Community Services |
| Presentation: | Yes |
Information
RECOMMENDATION
Planning staff recommends conditional approval of Variance 1368 and adoption of the findings of the review criteria.
BACKGROUND (Consistency with Adopted Plans and Policies, if applicable)
Variance 1368 – 3903 Palisades Park Drive – Variance from Section 27-1209 to allow an 8-foot fence on the property line - A variance from BMCC Section 27-1209.C.2(b) requiring a minimum 5-foot side yard setback for any fence or wall over 6 feet in height to allow a fence up to 8 feet tall on the side property line in a Suburban Neighborhood (N3) zone, on Lots 4A and 4B of Block 8, Palisades Park Subdivision, 2nd Filing, a 10,195 square foot parcel of land. The purpose of the variance is to allow taller fence on a shared side property line. Tax ID: C03167
APPLICATION DATA
OWNERS: David & Norma Sellers
PURPOSE: Fence height of 8 feet on the property line
LEGAL DESCRIPTION: Lots 4A and 4B of Block 8, Palisades Park Subdivision, 2nd Filing
ADDRESS: 3903 Palisades Park Dr.
EXISTING LAND USE: Residential
PROPOSED LAND USE: Same
EXISTING ZONING: N3 - Suburban Neighborhood
CONCURRENT APPLICATIONS
None
APPLICABLE ZONING HISTORY
Variance 1295; 3410 Flagstone- Fence Height to 8 feet. Approved - July 3, 2019.
SURROUNDING ZONING & LAND USE
NORTH: Zoning: N3
Land Use: Residential
SOUTH: Zoning: N3
Land Use: Residential
EAST: Zoning: N3
Land Use: Residential
WEST: Zoning: N3
Land Use: Residential
Planning staff is recommending approval based on the review criteria for variances.
APPLICATION DATA
OWNERS: David & Norma Sellers
PURPOSE: Fence height of 8 feet on the property line
LEGAL DESCRIPTION: Lots 4A and 4B of Block 8, Palisades Park Subdivision, 2nd Filing
ADDRESS: 3903 Palisades Park Dr.
EXISTING LAND USE: Residential
PROPOSED LAND USE: Same
EXISTING ZONING: N3 - Suburban Neighborhood
CONCURRENT APPLICATIONS
None
APPLICABLE ZONING HISTORY
Variance 1295; 3410 Flagstone- Fence Height to 8 feet. Approved - July 3, 2019.
SURROUNDING ZONING & LAND USE
NORTH: Zoning: N3
Land Use: Residential
SOUTH: Zoning: N3
Land Use: Residential
EAST: Zoning: N3
Land Use: Residential
WEST: Zoning: N3
Land Use: Residential
Planning staff is recommending approval based on the review criteria for variances.
STAKEHOLDERS
Planning staff has not received any comments on the application as of the date of this report. The Board of Adjustment will hold a public hearing prior to acting on the request.
ALTERNATIVES
The Board of Adjustment may:
- Conditionally approve the request variance and adopt the recommended findings of the review criteria; or
- Deny the variance and adopt different findings of the review criteria; or
- Delay action on the variance to the next scheduled Board meeting; or
- Allow the applicant to withdraw.
FISCAL EFFECTS
The Planning Division budget will not be effected by the Board's decision on this variance.
SUMMARY
Prior to approval, the Board of Adjustment shall ensure that the determinations for variances (Sec. 27-1627.D and E.), as outlined below, have been satisfied:
Section 27-1627.D1)
1) That special conditions and circumstances exist which are peculiar to the land, the lot or something inherent in the land which causes the hardship, and which are not applicable to other lands in the same district;
There are special circumstances that exist in this situation. The subject property is at an elevation lower than the properties to the north side (rear of the property). A six-foot fence does not give the owner the same privacy as it would if the adjacent property were level with the property. Additionally, the subject property has an inground swimming pool in the rear yard and requires a fence for safety. The location of the pool and the pool cover apparatus, limits the ability to place the fence at the required 5 foot setback from the property line.
2) That a literal interpretation of the provisions of this Zoning Code would deprive the applicant of rights commonly enjoyed by other tracts in the same district;
There has been at least one fence height variance in the area with topographical similarities. There is at least one other tract in the district that has a fence that obstructs the view of their yard and provides a privacy the subject property does not have due to the higher elevation of the neighboring property.
3) That granting the variance requested will not confer on the applicant any special privilege that is denied by this Zoning Code to other land in the same district;
The variance will not allow the applicant any special privileges. The circumstances in this situation show the eight foot fence would allow the property owner the same privacy as other properties that have adjacent property at the same grade level.
4) That the granting of the variance will be in harmony with the general purpose and intent of this Zoning Code and with the growth policies;
Granting of this variance application is compatible with the goals of the 2016 Growth Policy. Allowing continued investment in residential property supports a use that is compatible with the neighborhood. Granting this variance should also be in harmony with the general purpose and intent of the Zoning Regulations. As stated in criteria 1, the parcel has unique features that would not allow placement of an 8 foot fence the required 5 foot setback from the property line.
Board of Adjustment Review and Decision Making (BMCC 27-1627.E)
1) Whenever the City Board of Adjustment grants an application for a variance, the minutes shall specifically state the criteria upon which the variance is granted.
2) In granting any variance, the BOA may prescribe appropriate conditions and safeguards in conformity with this Zoning Code. Violation of such conditions and safeguards, when made a part of the terms upon which the variance is granted, shall be deemed a violation of this Zoning Code.
Staff is recommending the following conditions for the variance request:
Section 27-1627.D1)
1) That special conditions and circumstances exist which are peculiar to the land, the lot or something inherent in the land which causes the hardship, and which are not applicable to other lands in the same district;
There are special circumstances that exist in this situation. The subject property is at an elevation lower than the properties to the north side (rear of the property). A six-foot fence does not give the owner the same privacy as it would if the adjacent property were level with the property. Additionally, the subject property has an inground swimming pool in the rear yard and requires a fence for safety. The location of the pool and the pool cover apparatus, limits the ability to place the fence at the required 5 foot setback from the property line.
2) That a literal interpretation of the provisions of this Zoning Code would deprive the applicant of rights commonly enjoyed by other tracts in the same district;
There has been at least one fence height variance in the area with topographical similarities. There is at least one other tract in the district that has a fence that obstructs the view of their yard and provides a privacy the subject property does not have due to the higher elevation of the neighboring property.
3) That granting the variance requested will not confer on the applicant any special privilege that is denied by this Zoning Code to other land in the same district;
The variance will not allow the applicant any special privileges. The circumstances in this situation show the eight foot fence would allow the property owner the same privacy as other properties that have adjacent property at the same grade level.
4) That the granting of the variance will be in harmony with the general purpose and intent of this Zoning Code and with the growth policies;
Granting of this variance application is compatible with the goals of the 2016 Growth Policy. Allowing continued investment in residential property supports a use that is compatible with the neighborhood. Granting this variance should also be in harmony with the general purpose and intent of the Zoning Regulations. As stated in criteria 1, the parcel has unique features that would not allow placement of an 8 foot fence the required 5 foot setback from the property line.
Board of Adjustment Review and Decision Making (BMCC 27-1627.E)
1) Whenever the City Board of Adjustment grants an application for a variance, the minutes shall specifically state the criteria upon which the variance is granted.
2) In granting any variance, the BOA may prescribe appropriate conditions and safeguards in conformity with this Zoning Code. Violation of such conditions and safeguards, when made a part of the terms upon which the variance is granted, shall be deemed a violation of this Zoning Code.
Staff is recommending the following conditions for the variance request:
1. The variance from Section 27-1209 to allow an 8-foot fence on the property line. No other variance is intended or implied with this approval.
2. The fence shall be placed at least one foot (12 inches) to the inside of the subject property’s rear property line, this condition in no way indicates the neighboring property owner can claim these 12 inches as their property.
3. The variance is limited to Lots 4A and 4B of Block 8, Palisades Park Subdivision, 2nd Filing.
4. The applicant shall meet all other city code requirements with the exception of this variance.
5. The property owner must submit and receive approval of a fence permit within 6 months of approval of this variance, and complete construction within one year.
6. These conditions of variance approval shall run with the land described in this authorization and shall apply to all current and subsequent owners, operators, managers, lease holders, heirs and assigns.
2. The fence shall be placed at least one foot (12 inches) to the inside of the subject property’s rear property line, this condition in no way indicates the neighboring property owner can claim these 12 inches as their property.
3. The variance is limited to Lots 4A and 4B of Block 8, Palisades Park Subdivision, 2nd Filing.
4. The applicant shall meet all other city code requirements with the exception of this variance.
5. The property owner must submit and receive approval of a fence permit within 6 months of approval of this variance, and complete construction within one year.
6. These conditions of variance approval shall run with the land described in this authorization and shall apply to all current and subsequent owners, operators, managers, lease holders, heirs and assigns.
3) The BOA shall prescribe a time limit within which the action for which the variance is required shall be begun or completed, or both. Failure to begin or complete such action within the time limit set shall void the variance.
The property owner shall complete construction of the new fence within one year of approval of this variance.
4) Under no circumstances shall the BOA grant a variance to allow a use not permissible under the terms of this chapter in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other property in the district.
The granting of this variance would not allow a use that is not allowed in the zoning district – fences are allowed in the district.
The property owner shall complete construction of the new fence within one year of approval of this variance.
4) Under no circumstances shall the BOA grant a variance to allow a use not permissible under the terms of this chapter in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other property in the district.
The granting of this variance would not allow a use that is not allowed in the zoning district – fences are allowed in the district.