TO: Mayor and Members of City Council
THRU: Zoning Commission
FROM: Demetrios Moutos - Planner I
DATE: December 10, 2024
RE:
Title
A24-47. Variance Request for Minimum Yard Setbacks at 4168 Ferncreek Drive (REID #: 0417724116000), owned by Faisal A. Emam, Salwa Ali Seidi, and Hana A. Seidi.
end
COUNCIL DISTRICT(S):
Council District(s)
9 - Deno Hondros
b
Relationship To Strategic Plan:
Strategic Operating Plan FY 2022 - Goals 2027
• Goal 2: Responsive City Government Supporting a Diverse and Viable Economy
o Objective 2.1: Ensure a diverse City tax base.
• Goal 4: Highly Desirable Place to Live, Work, and Recreate.
o Objective 4.5: Ensure great neighborhoods for residents.
Executive Summary:
The applicant requests a variance from Section 30-3.D.5 of the City Code to reduce the required rear yard setback from 30 feet to 0 feet to construct a 30x16 family room addition. This request arises from a misunderstanding of the property boundary at the time of purchase, as the applicant mistakenly believed that the fence marked the property line.
The subject property is located in a Mixed Residential 5 (MR-5) zoning district and is currently used as a single-family residence. Surrounding properties also fall under the MR-5 zoning designation and are utilized for single-family residential purposes. The back of the property borders a wooded area adjacent to the All-American Expressway, providing a natural buffer from highway activity.
Approval of this variance would allow the applicant to fully utilize the rear portion of the property for the proposed addition while maintaining the residential character of the surrounding neighborhood.
According to Section 30.2.C.14, a variance is designed to allow deviations from the dimensional standards of the Ordinance when exceptional circumstances beyond the landowner’s control would cause undue hardship if the strict application of the standards were enforced. It is important to note that a variance does not permit changes to the allowed uses or conditions of approval and should be used sparingly.
Background:
• Owners: Faisal A. Emam, Salwa Ali Seidi, and Hana A. Seidi
• Applicant: Frank Hogan (Your Way Construction)
• Requested Action: Reduce rear yard setback from 30 feet to 0 feet.
• Zoning District: Mixed Residential 5 (MR-5)
• Property Address: 4168 Ferncreek Drive
• Size: 0.31 acres ±
• Existing Land Use: Single Family Residence
Surrounding Zoning and Land Uses:
• North: MR5 - Single Family Residential
• South: MR5 - Single Family Residential
• East: N/A - All-American Expressway
West: MR5 - Single Family Residential
Issues/Analysis:
The applicant requests a variance to reduce the rear yard setback requirement from 30 feet to 0 feet to construct a 30x16 family room addition. This variance is necessary due to a misunderstanding regarding the property boundary at the time of purchase, where the fence line was mistakenly assumed to be the property line.
The property is located in a Mixed Residential 5 (MR-5) zoning districts, with surrounding properties also zoned MR-5, primarily used for single family residential purposes. Additionally, the property adjoins a wooded area along the All-American Expressway, providing a natural buffer from highway activity.
The applicant has justified the variance request by highlighting the hardship caused by the incorrect assumption of property boundaries. They argue that strict adherence to the setback requirement would prevent the construction of a much-needed family room for their growing family. The application asserts that the variance is the minimum necessary to allow for reasonable use of the property while still complying with other dimensional standards of the City Code. Furthermore, the applicant contends that the requested variance aligns with the general purpose and intent of the ordinance, as it will enhance the property and be consistent with the established character of the neighborhood.
Regarding public safety and welfare, the applicant claims that granting the variance will not negatively impact neighboring properties or the community. They assert that safety will remain a priority and that the addition will not pose any risks to the surrounding area. However, there is no specific mention of feedback or concerns from adjacent property owners nor direct evidence of neighborhood opposition to the request. The application references the unique circumstances of the land, particularly its location adjacent to a highway bugger, distinguishing it from other properties in the neighborhood.
Insufficient Justification for Variance:
The following are not considered valid grounds for a Variance:
1. The presence of other nonconforming or conforming land uses or structures in the same or different districts;
2. A request for a use that is explicitly or implicitly prohibited in the district; or
3. Economic hardship or the potential for increased profitability through a Variance.
Findings of Fact (Based on Applicant’s Responses):
The findings are based on the applicant’s responses to the submitted application and the most reliable information regarding the proposal before any testimony presented at the evidentiary hearing.
Findings of Fact Statements as reviewed by the Planning Staff:
1. There is sufficient evidence that the strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
The strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships because the rear yard setback requirement of 30 feet significantly limits the homeowner’s ability to expand their home to accommodate their growing family. The property’s unique situation, including its location adjacent to the All American Expressway and the misalignment between the fence line and the actual property boundary, restricts the available space for additions. Without the requested variance, the homeowner could not construct the addition of the family room, which is essential for meeting the family’s current and future space needs. Approval of this variance would alleviate these hardships while allowing reasonable and functional use of the property.
2. There is sufficient evidence that any practical difficulties or unnecessary hardships result from unique circumstances related to the land, and are not the result of the actions of the landowner as shown by the following evidence:
Practical difficulties and unnecessary hardships arise from unique circumstances related to the land, specifically the property's proximity to the All-American Expressway and the unexpected encroachment of Department of Transportation (DOT) ownership into what was assumed to be part of the property. At the time of purchase, the homeowner was unaware that the fence line did not align with the actual property boundary, resulting in a 12-foot discrepancy. This unique situation, which is not expected of other properties in the neighborhood, significantly limits the usable area of the property and impacts the homeowner's ability to make reasonable improvements. These hardships are directly tied to the property's location and boundary issues rather than the landowner's actions.
3. There is sufficient evidence that the Variance is the minimum action that will make possible a reasonable use of land or structures as shown by the following evidence:
The requested variance represents the minimum action necessary to enable reasonable use of the property by allowing the construction of a family room addition. Reducing the rear yard setback to 0 feet is essential due to the unique boundary constraints caused by the misaligned property line. With this variance, the homeowner would be able to utilize the available space effectively for the proposed addition, which is needed to accommodate the needs of their growing family. The variance seeks to stay within what is necessary for this specific use, ensuring the request remains proportional and reasonable.
4. There is sufficient evidence that the Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
The requested variance aligns with the general purpose and intent of the Ordinance and preserves its spirit by facilitating a reasonable improvement to the property without compromising the character or safety of the neighborhood. The proposed addition will enhance the functionality and value of the property while maintaining harmony with the surrounding residential area. Importantly, all other dimensional standards of the Ordinance will be met, ensuring that the variance remains consistent with the overall objectives of the zoning regulations and supports the well-being of the established neighborhood.
5. There is sufficient evidence that in the granting of the Variance, the public safety and welfare has been assured and substantial justice has been done as shown by the following evidence:
Granting the requested variance ensures public safety and welfare by allowing the homeowner to make necessary improvements to their property while maintaining compliance with safety standards and without negatively impacting neighboring properties or the community. The variance supports the homeowner's ability to enhance living space consistent with the neighborhood's established character. Substantial justice is achieved by addressing the unique circumstances of this property and enabling its reasonable use, all while prioritizing safety and minimizing any potential effects on adjacent properties or community welfare.
Budget Impact:
There is no immediate budgetary impact associated with this request.
Options:
The board has the authority to approve or deny the request based on the five required findings of fact. Members must assess the evidence and determine whether the applicant has sufficiently demonstrated practical difficulties or unnecessary hardships based on the land's unique characteristics.
If a member believes that the evidence presented is substantial, competent, and sufficient to meet the required findings of fact, then the member may make a motion to approve the variance. The members must state all five findings of fact and the evidence presented to satisfy each finding.
If the members cannot find specific supporting facts under all five findings of fact, they must consider a motion of denial. The motion should indicate which of the five (5) findings of fact cannot be met.
The Board can also place reasonable conditions on any variance approval.
If a member wishes to make a motion to approve the variance, they should make a brief statement recapping the evidence showing each of the five findings of fact. Any discussion by the Board following a motion may include a recap of the evidence supporting each of the five (5) factual findings.
Possible Motions and Factual Findings:
Motion to approve the variance reducing the rear setback from 30 feet to 0 feet.
Findings of Fact Required to Approve this Request:
1. Strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
______________________________________________________________________
2. Any practical difficulties or unnecessary hardships result from unique circumstances related to the land, and are not the result of the actions of the landowner as shown by the following evidence:
______________________________________________________________________
3. The Variance is the minimum action that will make possible a reasonable use of land or structures as shown by the following evidence:
_____________________________________________________________________
4. The Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
______________________________________________________________________
5. In the granting of the Variance, the public safety and welfare have been assured and substantial justice has been done as shown by the following evidence:
______________________________________________________________________
Motion to approve the variance(s) as requested but with added conditions
Findings of Fact Required to Approve this Request with added conditions:
1. Strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
___________________________________________________________________
2. Any practical difficulties or unnecessary hardships result from unique circumstances related to the land, and are not the result of the actions of the landowner as shown by the following evidence:
___________________________________________________________________
3. The Variance is the minimum action that will make possible a reasonable use of land or structures as shown by the following evidence:
___________________________________________________________________
4. The Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
___________________________________________________________________
5. In the granting of the Variance, the public safety and welfare have been assured and substantial justice has been done as shown by the following evidence:
___________________________________________________________________
Motion to deny the variance as requested.
Findings of Fact Statements Required to Deny this Request:
1. There is not sufficient evidence that the strict application of the Ordinance requirements results in practical difficulties and unnecessary hardships as shown by the following evidence:
________________________________________________________________
2. There is not sufficient evidence that any practical difficulties or unnecessary hardships result from unique circumstances related to the land, and are not the result of the actions of the landowner as shown by the following evidence:
_______________________________________________________________
3. There is not sufficient evidence that the Variance is the minimum action that will make possible a reasonable use of land or structures as shown by the following evidence:
_______________________________________________________________
4. There is not sufficient evidence that the Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit as shown by the following evidence:
_______________________________________________________________
5. There is not sufficient evidence that in the granting of the Variance, the public safety and welfare has been assured and substantial justice has been done as shown by the following evidence:
_______________________________________________________________.
Recommended Action:
N/A
Attachments:
1. Application
2. Aerial Notification Map
3. Zoning Map
4. Land Use Map
5. Subject Property Photos
6. Surrounding Property Photos
7. Site Plan