Planning staff recommends conditional approval and adoption of the proposed findings of the review criteria for Variance 1358.

REQUEST:
The applicant is requesting to allow eight lots in the Annafeld North Subdivision, in a Mixed Residential 2 (NX2) zone, to be developed with a principal structure that only has one dwelling unit. The NX2 zone (Section 27-1002.C - Table 27-1000.1) requires a minimum of two dwelling units per principal structure. Due to the geographic constraints of these corner lots, a two-unit structure is possible but such structure would not meet other public safety requirements such as the clear vision area at the intersections. Three of the subject lots have already been approved for building permits (1585 St George Blvd, 1589 Walter Creek Blvd, and 6047 Elysian (Unit above the garage)). One lot has a pending building permit (6105 Elysian - unit above the garage) and the remaining lots are planned to have the single-unit structures. Three of the lots have additional principal structures on the same lot with two or more dwelling units (1587 Springhedge St, 1595 Walter Creek Blvd, and 1591 St George Blvd).
 

This is a variance from the requirement in the Mixed Residential 2 (NX2) zone to build every residential structure with at least 2 dwelling units. The new code requirements (adopted February 25, 2021) put in place a new regulation for multifamily zone districts to make more productive use of land. The NX2 and NX3 both have a minimum number of dwelling units per structure. The previous zoning for multifamily allowed all types of housing choices including single family. The code update found this to be an unpredictable feature of multifamily zoning, so the new districts placed the minimum number of units per structure for NX2 (2 units minimum) and NX3 (5 units minimum). Similarly, the mixed use zone districts allow residential uses in the same structure as a commercial use, but the residential use must be behind the first floor commercial use or above the first floor. The applicant has request variances for eight lots in the subdivision.

The applicant has designed the subdivision lots to accommodate the NX2 zone district requirements but several of the corner lots have restricted building area due to the clear vision area for vehicle and pedestrian safety. Three of the single-unit buildings are part of a larger lot that includes multi-unit structures. These single unit structures are above the first floor garage area that serves all the units on the parcel. These lots are 6047 Elysian Rd - Unit 201 (request No.1), 6105 Elysian Rd - Unit 201 (request No. 5), and 6153 Elysian Rd - Unit 201 (request No.6). 1587 Springhedge is also slated to have another principal structure with multiple units in addition to the single unit building. Many of the buildings are built in the same style as the multi-unit structures and are not obviously single-family units. A single unit above a multi-car garage for example would not be out-of-place within this development. The small individual lots at the corner of two streets will not look significantly different from the other structures on the block.

Building permits have already been approved for several of the lots since the discrepancy was only noted recently by Planning staff during plan review. The structures already approved and under construction (or completed) include 6047 Elysian Rd - Unit 201 (request No. 1), 1589 Walter Creek (request No. 2), 6153 Elysian Rd - Unit 201 (request No. 6), and 1585 St George (request No. 7). There is a pending building permit for 6105 Elysian Rd - Unit 201 (request No. 5). This is the permit where the discrepancy was discovered. Three of the locations do not have building permit plans submitted at this time. Those locations are 6080 Northstead (request No. 3), 1587 Springhedge (request No. 4) and 6102 Northstead (request No. 8). 

The applicant has provided an elevation plan of either the approved building plans or proposed building plans for each site. All the NX2 building and siting requirements will be met for each building including the build-to range on the front of 10-20 feet, the side street build-to range of 5 to 15 feet, the amount of doors and windows on the street facade and rear-loading garages.

Planning staff mailed notice to all property owners within 150 feet of the 8 locations, published a legal advertisement and posted the property as required. No property owners or interested persons have contacted the Planning Division about the requested variances.

The Board of Adjustment may:

• Conditionally approve the requested variance and adopt the staff recommended findings of the review criteria; or
• Deny the requested variance and adopt different findings of the review criteria; or
• Delay action on the requested variance until the next scheduled BOA meeting; or
• Allow the applicant to withdraw the variance request.

Four votes in favor are required to approve any variance. If a variance is denied, the applicant must wait one year to reapply for another variance on these lots. The applicant has not requested a withdrawal of the application.

The Planning Division budget will not be effected by the Board's decision on this variance.

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.D

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.
The lots or portions of lots included in this variance request are all corner lots that have additional safety requirements for clear vision at the street intersections and are small compared to similar corner lots in other NX2 zone districts. All corner lots tend to have some no-build area to ensure safe traffic situations at the corner. The single unit structures we designed to meet the clear vision requirements. The lots are suitable for single-unit buildings. It would be difficult to build a two-unit structure on these lots. The builder could comply by adding a third story to accommodate a second unit, but these structures would be taller than the other 1 and 2-story buildings under construction in the neighborhood.

2) That a literal interpretation of the provisions of this Chapter would deprive the applicant of rights commonly enjoyed by other tracts in the same district.
This is a variance of first impression for the Board. Previous variances of this type were for more units than allowed based on lot area minimums. When the code was updated, lot area minimums were deleted and replaced with lot frontage minimums for types of residential structures in a zone district. For example, the NX1 zone district allows 1 to 4 family structures but only require a minimum of 50 feet of frontage for a 3 or 4 unit building and 20 feet for a 1 or 2 unit building. In the NX2 zone districts, 20 feet of frontage is required for a 2 unit structure and 50 feet for a 3 or more unit structure. The Use Table in Section 27-1002 is where the "types" of residential structures are most clear for each district. In the NX2 zone district 2 to 8 unit structures are allowed, but not single unit structures. Some existing developments in the new NX2 zone districts also may have "legally nonconforming" single unit structures. The new code also allows these existing "nonconforming" single-unit residential structures to be re-built without having to obtain a variance (Section 27-1504.C.3.(a.2) "The operation of a nonconforming residential use located in an N1-4, NX1-3, or RMH district shall not be terminated regardless of the amount of damage or destruction suffered by the structure in which the use is operated."). A literal interpretation of the code in this instance may deprive this owner of rights commonly enjoyed by other owners in the same district. 

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.
Granting this variance may confer on this application a special privilege since it is a variance of first impression under the new code requirements. The privilege would be confined to NX2 zoned property that is not yet developed, since NX2 lots with existing single-unit dwellings can re-build. The applicant could construct taller buildings in the NX2 zone and put a second unit on a third floor. These structures would appear to be out of place compared to the other structures in the neighborhood.

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 Policy.
The proposed variance will be in harmony with the Growth Policy as the buildings will fit in with the neighborhood plan, and due to the size and bulk of the structures will not appear to be a single unit structure from the street. The Growth Policy encourages predictable land uses and the single unit structures will be predicable in the locations on the corner lots.

Section 27-1627.E
2) In granting any variance, the Board 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 several conditions for the variance request:
1. This approval is to allow single unit principal structures at the requested locations and lots within the Annafeld North Subdivision. No other variance is intended or implied.
2. The variance is limited: Block 1 - Lots 8, 9, 11 and 12 and Block 2 - Lots 1, 9, 10 and 16, all in Annafeld North Subdivision 1st Filing.
3. The applicant will apply for and receive approval for a building permits for all the enumerated lots within 2 years of BOA approval and complete construction on all the single-unit structures within 4 years of BOA approval.  Failure to meet the time limits of this condition will void the variance.
4. There will be no construction activities before 7 a.m. or after 8 p.m. daily.
5. The applicant shall meet all other city code requirements in place at the time of construction except for the variance granted herein.
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, leaseholders, heirs and assigns.

3) The Board 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.
Staff is recommending the applicant have 2 years to receive approval of all building permits and 4 years to complete all the single-unit structures.

4) Under no circumstances shall the Board grant a variance to allow a use not permissible under the terms of this zoning code in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other properties in the district.
The granting of this variance would not allow a use that is not allowed in the zoning district. Residential dwellings are allowed uses within the district.