Staff Report June 17, 2010




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BZA-1797

John and Kathyrn Mcgraw

Variance

Staff Report

June 17, 2010




BZA-1797

John and Kathyrn Mcgraw

Variance

Staff Report

June 17, 2010

REQUEST MADE, PROPOSED USE, LOCATION:

Petitioners, represented by attorney Joseph Bumbleburg, are requesting a variance to permit a 19’ setback from the Flood Plain zone boundary instead of the required 25’ to legitimize the existing single-family home (UZO 4-4-3(b)) on property located at 509 Shady Creek Drive, Lot 3 in Wildcat Valley Estates, Fairfield 24 (NW) 23-4.


AREA ZONING PATTERNS:

This section of Wildcat Valley Estates was plated in 1992. The zoning of the entire buildable area of the subdivision is residential (R1). This subdivision is surrounded by other single-family homes to the south. The zoning in this area is predominantly R1, separated by the Flood Plain zoning that is associated with the Wildcat Creek. The back of this lot has frontage on the Wildcat; the Flood Plain zone associated with the creek backs up to the bottom of the hill near the location of the proposed deck.


AREA LAND USE PATTERNS:

The majority of uses in the area are single-family homes. Traveling to the site from SR 26 via Frontage Road (CR 50 N), one must pass a multi-family development, Waterford Court. Development becomes less dense further east from this area. Several commercial uses exist south of Waterford Court. On the corners of Frontage Road and SR 26 are Cracker Barrel and Starbucks.


TRAFFIC AND TRANSPORTATION:

Shady Creek Lane is considered a rural local and the home was built behind the required 25’ setback; this variance will have no affect on the traffic in the area.


ENVIRONMENTAL AND UTILITY CONSIDERATIONS:

Sanitary sewer and water serve this site.


In 1996 this home was built in compliance with the ordinance in effect at that time based on the approved building permit. In 1996 the zoning ordinance required no additional setback from the Flood Plain zone.
STAFF COMMENTS:

When the zoning ordinance was updated 1998 a 25’ setback was established from the FP (Flood Plain) zone for primary use buildings and accessory buildings. Homes that were built prior to 1998 and lie within 25’ of the FP boundary are considered legally noncomplying. Additions to these buildings would be permitted up to the FP boundary, making them have a zero foot setback from the FP (per UZO 4-4-3 (b)).


The petitioners’ home was built in compliance with all zoning requirements in 1996. The property owners ran into a question of whether a variance was needed to expand their existing deck an additional 14’ toward the Flood Plain. According to the zoning ordinance, if a deck is not attached to a home and is not roofed then it is not considered part of the home, but instead it is considered an accessory structure and does not need to meet the 25’ setback from the FP zone. Additionally, the ordinance also states that if a home was built in compliance with a building permit prior to 1998, then additions do not need to meet the 25’ foot setback from the FP zone. The home is considered legally Noncomplying; however if it were to be destroyed by more than 50% of its value then it could not be constructed in the same location. If the variance for this house is granted then the home becomes conforming within the context of the ordinance.
Regarding the ballot items:


  1. The Area Plan Commission on June 16, 2010 determined that the variance requested IS NOT a use variance.

And it is staff’s opinion that:

  1. Granting this variance WILL NOT be injurious to the public health, safety, and general welfare of the community. No one in the neighborhood will be able to notice the effects of granting this variance because the house is already built; this variance is mostly for financing purposes.

  2. Use and value of the area adjacent to the property included in the variance request WILL NOT be affected in a substantially adverse manner. The current house does not encroach in the side setback to the north (nearest neighbor) and meets all other requirements of the ordinance.

  3. The terms of the zoning ordinance are being applied to a situation that IS NOT common to other properties adjacent to the Flood Plain zoning district. There are few homes in the county that are legally noncomplying because of this section of the ordinance. Granting this variance will only benefit the property in the future because it will allow the home to be built in this same location if it is destroyed.

  4. Strict application of the terms of the zoning ordinance WILL result in an unusual or unnecessary hardship as defined in the zoning ordinance. This variance is not self-imposed because it was built in compliance with the ordinance.

5a. The hardship involved IS NOT self-imposed or solely based on a perceived reduction of or restriction on economic gain. The ability to rebuild the home at the same location if a disaster were to occur is not considered self-imposed or a reduction of economic gain.

5b. The variance sought DOES provide only the minimum relief needed to alleviate the hardship. The variance sought is for the current structure; this is the minimum relief needed.


STAFF RECOMMENDATION:

Approval




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