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Regular
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| Board of Adjustment | |
| Date: | 09/06/2023 |
| Title: | Return Item- 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)
Return Item- 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 rear 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
This area of Billings is built at the foot of the Rims. The subject property is ‘downhill’ from the north fence behind the house. There is a natural drainage that runs at the back property lines of the properties in this part of the subdivision with the north elevations higher than the ones on the south. With the properties on the north being higher a common fence on the shared rear property line would appear shorter on the north property than on the south property. The variance would be to allow the subject property a taller fence to provide a greater amount of privacy from a property that is uphill from them.
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
See attachments
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
This area of Billings is built at the foot of the Rims. The subject property is ‘downhill’ from the north fence behind the house. There is a natural drainage that runs at the back property lines of the properties in this part of the subdivision with the north elevations higher than the ones on the south. With the properties on the north being higher a common fence on the shared rear property line would appear shorter on the north property than on the south property. The variance would be to allow the subject property a taller fence to provide a greater amount of privacy from a property that is uphill from them.
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
See attachments
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
STAKEHOLDERS
Planning staff has not received any comments on the application as of the date of this report. The Board of Adjustment held a public hearing on August 2, 2023, and granted the applicants request to delay action on the application until the September 6, 2023, meeting, to allow staff to retrieve details of the previous variance application for the subject property that was not included in the August 2, staff report. Staff has had time to review the previous application and has provided a summary of the request and BOA findings and vote below.
The applicant requested variance 1219 (public hearing date October 7, 2015) from BMCC Section 27-604 requiring a maximum fence height of 6 feet on the side or rear property line to allow a maximum fence height of 7 feet on the north property line to replace a damaged 6.5-foot fence in a Residential 9,600 (R-96) zone. During the hearing, the BOA heard staff's recommendation for approval based on the determinations presented to them (staff report included in attachments). The applicant was not in attendance during the meeting. The neighboring property owner, Gina Loos, residing at 3208 Loredo Place (the address with the abutting property line), was in attendance and spoke in opposition to the variance. Ms. Loos stated in her testimony that the fence was 2 feet on her property, and felt they should not be able to build a higher fence because it would reduce her properties value and obstruct her view. During their discussion, the BOA concluded that the applicant could build a six foot fence on their property without a variance. The BOA also expressed disappointment the applicant was not present to give testimony. They voted 6-1 to deny the variance. Details of the subject property 2015 variance application, including minutes of the meeting, is provided as an attachment to his report.
There have been three other variances for an eight-foot fence approved in the surrounding subdivisions, Two in Poly Vista Estates (located South of Rimrock Road and East of 38th Street West) and one in Castlewood Subdivision (located West of Zimmerman Trail and North of Rimrock Road), with similar circumstances.
The applicant requested variance 1219 (public hearing date October 7, 2015) from BMCC Section 27-604 requiring a maximum fence height of 6 feet on the side or rear property line to allow a maximum fence height of 7 feet on the north property line to replace a damaged 6.5-foot fence in a Residential 9,600 (R-96) zone. During the hearing, the BOA heard staff's recommendation for approval based on the determinations presented to them (staff report included in attachments). The applicant was not in attendance during the meeting. The neighboring property owner, Gina Loos, residing at 3208 Loredo Place (the address with the abutting property line), was in attendance and spoke in opposition to the variance. Ms. Loos stated in her testimony that the fence was 2 feet on her property, and felt they should not be able to build a higher fence because it would reduce her properties value and obstruct her view. During their discussion, the BOA concluded that the applicant could build a six foot fence on their property without a variance. The BOA also expressed disappointment the applicant was not present to give testimony. They voted 6-1 to deny the variance. Details of the subject property 2015 variance application, including minutes of the meeting, is provided as an attachment to his report.
There have been three other variances for an eight-foot fence approved in the surrounding subdivisions, Two in Poly Vista Estates (located South of Rimrock Road and East of 38th Street West) and one in Castlewood Subdivision (located West of Zimmerman Trail and North of Rimrock Road), with similar circumstances.
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 affected 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 in-ground 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 have been three fence height variances approved with topographical similarities. There are other tracts in the district that have 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, as well as other properties that have been approved for an eight foot fence with similar site characteristics.
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 6 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 six 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 six 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.
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 in-ground 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 have been three fence height variances approved with topographical similarities. There are other tracts in the district that have 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, as well as other properties that have been approved for an eight foot fence with similar site characteristics.
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 6 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 six 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 six 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 must submit and receive approval of a fence permit within six months and 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 must submit and receive approval of a fence permit within six months and 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.
Attachments
- Zoning Map & Site Photos
- Application & Applicant Letter
- History
- Variance 1219 File
- BOA meeting minutes 10-7-2015