TO: Mayor and Members of City Council
THRU: Zoning Commission
FROM: Will Deaton, MPA, AICP, CFM, CZO - Planning & Zoning Division Manager
Heather Eckhardt, CZO - Planner II
DATE: September 10, 2024
RE:
Title
A24-41. Variance to reduce the minimum rear yard setback at 810 S Eastern Boulevard (REID #0436775716000), and being the property of 301B45K, LLC.
end
COUNCIL DISTRICT(S):
Council District(s)
2 - Malik Davis
b
Relationship To Strategic Plan:
Strategic Operating Plan FY 2022
Goals 2027
Goal 2: Responsive City Government Supporting a Diverse and Viable Economy
• Objective 2.1: To ensure a diverse City tax base
Goal 4: Highly Desirable Place to Live, Work, and Recreate
• Objective 4.5: To ensure a place for people to live in great neighborhoods
Executive Summary:
The applicant is requesting a variance to reduce the minimum rear yard setback from 50 feet to 15 feet. This variance will address non-conforming structures on an adjacent property under different ownership.
30.2.C.14 Variance:
The purpose of a variance is to allow certain deviations from the dimensional standards of this Ordinance (such as height, yard setback, lot coverage, or similar numeric standards) when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner's control (such as exceptional topographical conditions, narrowness, shallowness, or the shape of a specific parcel of land), the literal application of the standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest.
Variances are to be sparingly exercised and only in rare instances or under exceptional circumstances to relieve undue and unique hardships to the landowner. No change in permitted uses or applicable conditions of approval may be authorized by variance.
Background:
Owner: 301B45K LLC
Applicant: Mike Adams, MAPS
Requested Action: Reduce minimum rear yard setback from 50 feet to 15 feet
Zoning District: Heavy Industrial (HI)
Property Address: 801 S Eastern Blvd
Size: 3.04 acres ±
Existing Land Use: Wholesale distributor for HVAC equipment
Surrounding Zoning and Land Uses
• North: MR-5 - Single family residential
• South: HI - Storage facility
• East: HI - Religious institution
• West: HI - Vacant commercial building
Letters Mailed: 20
Issues/Analysis:
The subject property is located on S Eastern Blvd just east of the Martin Luther King Jr Freeway. According to the Cumberland County Tax office, the structure on the subject property was built in 1998 as the location of Johnstone Supply, a wholesale distributor of HVAC equipment.
The subject property was developed long before the adoption of the Unified Development Ordinance. Under the prior ordinance, the subject property was required to meet a 20-foot rear yard setback. The structure met the required setback at the time of construction. The Unified Development Ordinance now requires a 50-foot rear yard setback when abutting a residential zoning district.
Over the years, multiple accessory structures from the neighboring property at 408 Buxton Boulevard have begun encroaching on the subject property. The owner of the subject property would like to deed the affected property to the owner of 408 Buxton Blvd to clear up those encroachments. The subject property is currently non-conforming due to the adoption of the UDO and deeding the affected property to the owner of 408 Buxton Blvd would increase the non-conformity.
To address the non-conformity and encroachments, the owner has requested a variance to the required rear yard setback. This variance would allow for the rear property line to be moved and address the encroachments. The UDO requires a 50-foot rear yard setback, and the owner has requested a rear yard setback of 15.88 feet.
Insufficient Justification for Variance
The following does not constitute grounds for a Variance:
1. The siting of other nonconforming or conforming uses of land or structures in the same or other districts;
2. The request for a particular use expressly, or by inference, prohibited in the district; or
3. Economic hardship or the fact that property may be utilized more profitably with a Variance.
Subsequent Development:
The applicant is requesting to reduce the minimum rear yard setback from 50 feet to 15.88 feet. This variance is not tied to any future development on the subject property. However, the variance does address an encroachment created by development taking place on an adjacent property.
The following findings are based on the responses submitted in the application by the applicant and the best available information about the proposal without the benefit of testimony provided 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 applicant states “Current building does not rear yard setbacks already. The building predates the UDO zoning setbacks.”
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:
The applicant states “Adjoining property owner has building encroachments across property line. The subject property owner is trying to deed him a portion of the land to cover those encroachments. In doing so it reduces the rear yard setback even more. The variance is for a rear yard setback after deeding the adjoining property owner enough property to make his buildings compliant.
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 applicant states “The variance will allow the adjoining property owner to be compliant with accessory building setbacks. The subject property's building is already non-compliant and cannot be brought into compliance.”
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 applicant states “The building was existing prior to the zoning and its requirements being put in place. The request is for the building to remain with the rear setbacks as shown. All other setbacks are met.”
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:
The applicant states “In granting the variance, the adjoining property owner will become compliant with encroaching accessory buildings.”
Budget Impact:
There is no immediate budget impact.
Options:
The Board’s Authority: The board has the authority to approve or deny the request and must base its decision on the answers to the following five required findings of fact:
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 and the members must state all of the following five findings of fact along with the evidence that was presented to satisfy each finding.
If the members cannot find specific supporting facts under all five findings of fact, the members must consider a motion of denial. A motion of denial should indicate which of the five (5) of the 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 that recaps 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 a variance to reduce the required rear yard setback to 15 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:
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