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HomeMy WebLinkAbout2.0 BOA Staff Report 09.23.2002BOA 9/23/02 FAJ PROJECT INFORMATION AND STAFF COMMENTS REQUEST: APPLICANT: PROPERTY LOCATION: PRACTICAL LOCATION: WATER / SEWER: ACCESS: EXISTING/ADJACENT ZONING: STAFF RECOMMENDATION: Variance from Front Yard Setback Damon and Amanda Wells Lot 9, Block 11, Monument Creek Village, Section One, Garfield County, Colorado 33 Lupine Lane, located in Monument Creek Village of the Battlement Mesa PUD, Parachute, Colorado Battlement Mesa Consolidated Metro District Lupine Lane PUD Denial I. DESCRIPTION OF THE PROPERTY The property is approximately 10,000 sq. ft. in size and located at 33 Lupine Lane in Monument Creek Village of the Battlement Mesa PUD, Parachute, Colorado. The site appears to be relatively flat. II. DESCRIPTION OF THE PROPOSAL The Applicant is currently constructing a single-family dwelling on the subject property. Upon inspection by Garfield County, the garage portion of the house was found to be in violation of the Garfield County Land Use Code as well as the PUD zoning for the property regarding building in the front yard setback. More specifically, the PUD zoning for the property requires all structures to respect a 25 -foot front yard setback. The garage portion of the residence under construction extends 3.1 feet into the front yard setback and is therefore in violation of the zoning regulations. The Applicant has applied to the Board of Adjustment to request a variance from the front yard setback requirements of 25 feet. The house is framed and windows and doors have been installed. The project currently maintains a "stop work" order and cannot receive a Certificate of Occupancy until the zoning violation is resolved. It should be noted, the Applicant submitted a letter from the Battlement Mesa Service Association Architectural Committee (hereinafter "Committee") which states that they would "not contest any action taken by Garfield County" in approving the variance request. In addition, the Committee states "this is an isolated incident and will not set any precedent for future actions by the Architectural Committee." (See Exhibit H) HI. STAFF COMMENTS & REVIEW STANDARDS Staff reviewed the variance application which, if granted by the Board of Adjustment, would allow the Applicant to construct the garage portion of the single-family dwelling 3.1 feet into the front yard setback. The Applicant contends the reason the house has been built into the setback is most likely due to the movement of the stakes that delineate the front yard setback for the property during the course of the construction of the dwelling. More specifically, the Applicant submits the error might have occurred in one of the following ways: a) The error was caused by a miscalculation on the part of a subcontractor; or b) During the rerouting of the waterline, the setback stake was inadvertently removed and replaced in the wrong location. In any event, the dwelling is currently under considerable construction. As such, a variance granted by the Board would allow the structure to remain in place. Conversely, if a variance in not granted, the Applicant will be forced to demolish the portion of the garage in the setback and redesign the structure to comply with the regulations. Review Standards: In order for the Board of Adjustment to grant a variance, they must find the Applicant has satisfied the three main criteria or standards provided in Section 9.05 of the Zoning Resolution. Staff has included the regulatory language from Section 9.05 followed by Staffs findings to the required criteria / standards set forth below. Specifically, Section 9.05.03 of the zoning regulations states, After the proper forwarding of an application for variance to the Board and where by reason of exceptional narrowness, shallowness or shape of the specific piece ofproperty at the time of enactntent of this Resolution, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under this Resolution would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner of such property, the Board may authorize, upon the application relating to said property, a variance from such strict application so as to relieve such difficulties or hardship, provided, however: 1. That the variance granted is the minimum necessary to alleviate such practical difficulties or undue hardship upon the owner of said property; Staff Finding As mentioned above, the front 3.1 feet of the garage extends into the front yard setback. It appears that the reasons for this violation may be one of the following: a) The error was caused by a miscalculation on the part of a subcontractor; or b) During the rerouting of the waterline, the setback stake was inadvertently removed and replaced in the wrong location. A variance of 3.1 feet would alleviate a practical difficulty of having to demolish that portion of the garage. However, the variance would not alleviate an undue hardship upon the owner. The lot is flat and contains considerable square footage for the placement of the single-family dwelling. The underlying zoning regulations can be easily met on the property and do not cause an undue hardship. Moreover, the regulations state that hardship could be achieved if: 1) by reason of exceptional narrowness, shallowness or shape of the specific piece of property at the time of enactment of this Resolution, or 2) by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property. 2 The property is flat and contains approximately 10,000 sq. ft. which can easily accommodate a single-family dwelling as proposed and constructed. Staff finds that the lot is 1) not exceptionally narrow or shallow in shape, 2) nor contains exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property. The Applicant has not satisfied this criterion. 2. That such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the General Plan or this Resolution; Staff Finding Staff fmds that by granting this variance, which appears to be caused by the property owner, the Board may be setting a dangerous precedent which jeopardizes its ability to make future decisions on variance requests. As a result, Staff finds that a granting of this variance would cause substantial detriment to the public good and would impair the intent and purpose of the General plan and this Resolution. More specifically, by granting this variance simply because construction has begun on the structure even though the violation was caused by the Applicant, it would send a mixed message to the general public of Garfield County. In other words, future builders, contractors, and property owners might more likely violate setback requirements (or other zoning regulations) knowing that the Board will most likely approve a variance because they would be bound by their past decision making record. Staff acknowledges this decision is not an easy one due to the fact that the residence is already under substantial construction. In many variance requests before the Board, Applicants are still in a design phase rather than actually dealing with issues surrounding a residence under construction. Nevertheless, Staff cannot recommend the Board approve this variance request because it is caused by the Applicant and would set a very difficult precedent to overcome. Not only would this action place the Board in a difficult position by weakening their ability to make variance decisions based on hardship, but it would also begin to erode the importance of the zoning regulations themselves adopted by the Board of County Commissioners. In this light, a Staff fmds that granting this variance would cause detriment to the public good and substantially impair the intent and purpose of the General plan and this Resolution. As a result, Staff fmds the Applicant has not met this criterion. 3. That the circumstances found to constitute a hardship were not caused by the applicant, are not due to or the result of general conditions in the district, and cannot be practically corrected; Staff Finding As the criterion states, the hardship for which a variance is requested may not be one the property owner inflicted on himself (e.g., been due to the owner's violation of the regulation) or could have avoided. Staff fmds the present request for the setback variance is caused entirely by the Applicant. In this case, the Applicant (also the property owner) is ultimately responsible for what occurs on their property either directly or indirectly. For example, even though a sub -contractor, surveyor, or another third party may have moved the stakes in the ground used to delineate the proper boundaries, they are building the house on behalf of the owner. The actions taken by others done on behalf of the property owner ultimately become the responsibility of the property owner. Recourse available to the property owner to remedy the violation not only includes requesting a variance from the Board, but also having the person(s) responsible for the constructing the house in its current location fix their apparent mistake. While this violation may not have been caused by the Applicant directly, it is the result of someone constructing the dwelling on the Applicant's behalf. As a result of the aforementioned, the 3 hardship for which a variance is requested has been caused by the property owner and could have been avoided. Staff finds the Applicant has not met this criterion. 4. That the concurring vote offour (4) members of the Board shall be necessary to decide in favor of the appellant. Staff Finding As stated in the criterion listed above, in order for the Board to approve the variance request, there needs to be at least 4 concurring voting members. This shall be determined at the public hearing. IV. STAFF RECOMMENDED FINDINGS 1. That proper posting and public notice was provided as required for the meeting before the Board of Adjustment. 2. That the meeting before the Board of Adjustment was extensive and complete, that all pertinent facts, matters and issues were submitted and that all interested parties were heard at that meeting. 3. That for the above stated and other reasons, the proposed setback variance has been determined not to be in the best interest of the health, safety, morals, convenience, order, prosperity and welfare of the citizens of Garfield County. V. STAFF RECOMMENDATION Staff recommends the Board of Adjustment DENY this application for a variance from the minimum front yard setback of 3.1 feet. 4