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4. BOASR 05-12-2009~/ City of Elk -.~-,. River REQUEST FOR ACTION To Board of Adjustments Item Number 4, Agenda Section Meeting Date May 12, 2009 Prepared by Jeremy Barnhart, Plannin Manager Item Description Request by Timothy Yaeger for Variance from the shoreland Reviewed by Setback Regulations, Case No. V 09-02 Reviewed by Action Reauested Staff recommends that the Board of Adjustments denythe variance request, as illustrated on drawings dated May 11, 2009, for the following reasons: 1. The application does not meet ALL the variance criteria set forth in Section 30-635 Back~round/Discussion The Yeager's are proposing a permit to construct an above ground deck at the rear of the home that was constructed in 1998. A portion of the deck encroaches into the required 50 foot shoreland setback The setback encourages separation between development and the shore of public waters, where development has potential to negatively impact the waters of the state, a natural resource. Attachments • Location Map • Site Plan, dated May 11, 2009 • Applicants narrative General Information Applicant Timothy Yaeger Requested Action Variance to allow 5 foot encroachment into shoreland setback Location and Size Approximately .49 acres in the Riverplace neighborhood.. Case File: V 09-O1 Page 2 Variance Yeager shoreline Location Existing Use Land Use Plan Designation Current Zoning Subject Property Residential Urban Residential R 1b North Residential Urban Residential R 1b South Residential Urban Residential R 1b East Residential Urban Residential R 1b West Residential Urban Residential R 1b Overview The Yaegers have requested a variance that would allow a proposed deck to encroach 5 feet into the required 50 foot setback from the ordinary highwater line. The deck is proposed to extend from the house 12 feet. The applicant has provided a narrative, supporting their request for a variance. Applicable Regulations Variance Criteria 7. Literal en orcement of the ordinance avill cause undue hardshib. The literal enforcement of the ordinance could consistitute hardship in this situation. The purpose of the shoreline regulations is to "provide for the wise subdivision, use, and development of shorelands of public waters." The 50' setback in this case impacts a small Portion of the proposed improvements, and has negligible impacts on the shoreline due to construction methods and design. 2. The hardship is caused b~,r~ecial conditions and circumstances avhich are peculiar to the bro~erty and the structure involved and avhich are not characteristic o~ or~~~licable to other lands or structure in the same area The shoreluie setbacks are consistently applied to all properties along public waters. The river does take a unique shift "into" the lot. 3. The sbecial conditions and circumstances are not a consequence of the ~etitioner'.r oavn action or inaction The special condition in this situation is that fact that the layout of the houses to a logical location of the deck which conflicts with the 50 foot setback. While there are other options that would not require the variance, the construction of a normal sized deck is consistent with the pattern established by the neighborhood. Staff has noted the conflicts between the deck and setback issues, and since 2003, has noted this on the surveys. This house was constructed in 1998. 4. The literal at~t~lication o~ the firovisions o~ this ordinance would derive the petitioner of rights enioved by other properties in the same district under the terms of this ordinance / The property owner is permitted a deck, although the deck is limited to 7 feet of depth versus the planned 12 feet. S:\PLANNING MAIN\Case Files\Variance\V 09-02 Yeager\V 09-02 Yeager BA memo 5-12-09.doc Case File: V 09-O1 Page 3 Variance Yeager shoreline S. The variance will not be in irriour to or adverrel a ect the health .ra et or zarel are o the residents o the cit or the neiQhborhnnil where the fi~fio~, ; ~ ~ ,.,,,,, a .... a .... n ,_ _ . __ ,_ , . _ _ of ao uicu c„cc,c, v hue OrLIZTZCIJZCe. The variance, if approved, would have negligible impact on the surrounding properties, or other residents of the city. Because all standards are not met, staff recommends denial, but does recognize the precedent that has been established with previous variances. In a review of the variance files, the City has granted two shoreline variances since 2003. It does not appear the Council has denied any shoreline variances since this date. S:\PLANNING MAIN\Case Files\Variance\V 09-02 Yeager\V 09-02 Yeager BA memo 5-12-09.doc 0 ~~~~ ~h `~`~~ c, ~~ ~ ~l~~~o ~ ~~ ~ ~~ ~ ~ t~ ti ~:`. .off \ .~~ ~ ~ \' ' - --- - / a~ ~ , 6~ 1 ~ ~~ ~~ U4 `~ RFSI ~ ~ ref" ~, ~b ~ s~ CAA „~' ~: ~ > ' i '~ is o ~ ;~d ~ W z ! _ ' O I~ 7 I~, m !~ ~< 4 ;~ r r I 5I _ e ;/ ~ ;. ~ c~ ~. ~ W ~ f ~ a l ~~ ~) / t ~~- - ~I 1273 1 J co ~ © ~ ``~ © r ~ ~ © ~ ~ ~ N o ~ ~ ~ A c ~ T J~ Z i~ / ^~ ~ ~\ v Q~ y ~~ ~ ~~ • . ~-~ To Whom It May Concern: The literal enforcement of the ordinance would cause my family undue hardship by depriving us of the same rights of our neighbors in this district. Being deprived of a deck would also cause a danger to our young children as the existing patio doors, although screwed closed; the possibility is real that 2 young boys will find a way to get them open. The hardship is caused by a peculiar shift in the waterway that is unique to our lot and a peculiarly large drainage easement that runs through the rear of our property that gives us no option in building a deck and adhering to setback requirements. These special conditions are created by the waterway itself. The large drainage easement is due to a large culvert connecting a retention pond to the waterway. By literal enforcement of the ordinance, my family would not be able to construct a deck, as each neighbor along the waterway has done or is able to do. We believe that by granting us this variance we are keeping with the intent of the ordinance, that we are increasing the local tax base, not impairing. And that by placing post footings, we are doing nothing that will deter from the shore lands and thus preserve and enhance the quality of the waterway. Sec. 30-1963. Purpose of division. The uncontrolled use of shorelands of the city affects the public health, safety and general welfare not only by contributing to pollution of public waters, but also by impairing the local tax base. Therefore, it is in the best interests of the public health, safety and welfare to provide for the wise subdivision, use and development of shorelands of public waters. The legislature of the state has delegated responsibility to local governments of the state to regulate the subdivision, use and development of the shorelands of public waters and thus preserve and enhance the quality of surface waters, conserve the economic and natural environmental values of shorelands, and provide for the wise use of waters and related land resources. This responsibility is hereby recognized by the city. (Code 1982, § 904.00(2)) 1 . hard ship -noun 1 a condition that is difficult to endure; suffering; deprivation; oppression: a life of hardship. 2 an instance or cause of this; something hard to bear, as a deprivation, lack of comfort, or constant toil or danger. Vaziance or Appeal of Zoning Decision Application Page 2 12/22/2008 Last Modified ~~~ Print Name: ~ - m ~16r~'L- A type written narrative xplaining how the following criteria are met in order to be granted a variance: 1) That literal enforcement of the ordinance would cause the applicant undue (unnecessary, unavoidable, extreme) hardship. 2) That the hardship is caused by special conditions and circumstances which are peculiar to the land and the structure involved and which are not characteristic of or applicable to other lands or structures in the same district. 3) That the special conditions and circumstances are not a consequence of the applicant's own action or inaction. 4) That the literal application of the provisions of the Ordinance would deprive the applicant of rights enjoyed by other properties in the same district under the terms of the Ordinance. 5) That the variance will not be injurious to or adversely affect the health, safety, or welfare of the residents of the City or the neighborhood wherein the property is situated and will be in keeping with the spirit and intent of the Ordinance. All five of these criteria need to be met in order to be granted a variance. 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